People v. Romero and Self

Filed 8/27/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S055856

v. )

)

ORLANDO GENE ROMERO and )

CHRISTOPHER SELF, )

) Riverside County

Defendants and Appellants. ) Super. Ct. No. CR46579

___________________________________ )

Defendants Orlando Gene Romero and Christopher Self were convicted of the first

degree murders of Joey Mans, Timothy Jones, and Jose Aragon, the willful, deliberate,

and premeditated attempted murders of Kenneth Mills, Paulita Williams, and Randolph

Rankins, the attempted robbery of Kenneth Mills and Vicky Ewy, shooting at the vehicle

occupied by Kenneth Mills and Ewy, the mayhem of Kenneth Mills, the second degree

robberies of William Meredith, Jerry Mills, Sr., Jerry Mills, Jr., and Albert Knoefler, the

second degree burglary and vandalism of Magnolia Center Interiors, and receiving stolen

property. (Pen. Code,1 §§ 187, subd. (a), 189, 205, 211, 459, 496, 594, subd. (b)(2),

664.) The juries2 also found true robbery-murder special-circumstance allegations as to

all three murders, two multiple-murder special-circumstance allegations for each murder,

and arming enhancement allegations. (§§ 190.2, subd. (a)(3), (17)(i), 12022,

1 All further undesignated statutory references are to this code.

2 Defendants were tried jointly before separate juries.

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subd. (a)(1).) Self was also convicted of the willful, deliberate, and premeditated

attempted murder and second degree robbery of John Feltenberger and the kidnapping for

robbery and second degree robbery of Alfred Steenblock, and the jury found true great

bodily injury enhancement allegations as to the crimes against Feltenberger and Kenneth

Mills and arming enhancement allegations. (§§ 187, subd. (a), 209, subd. (b), 211, 664,

12022, subd. (a)(1), 12022.7.) Romero was also convicted of the kidnapping for robbery

and second degree robbery of Robert Greer, the second degree robbery of Roger

Beliveau, and receiving stolen property (Feltenberger‘s ammunition pouch), and the jury

found true arming enhancement allegations. (§§ 209, subd. (b), 211, 496, 12022, subd.

(a)(1).) The juries returned death verdicts, and the trial court entered judgments of death.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For the

reasons that follow we reverse Self‘s conviction and sentence for Knoefler‘s robbery,

vacate five multiple-murder special-circumstance findings for each defendant, and

otherwise affirm the judgments.

I. FACTS

A. Guilt Phase

1. Prosecution case

In 1992, defendants and brothers Romero and Self3 engaged in a two-month crime

spree. They were joined at times by Jose Munoz, who pled guilty and testified against

defendants at trial,4 and Daniel Chavez, whose case was severed before trial. Defendants

were also implicated by their recorded statements to police, which were played for the

jury, and by witness identification and physical evidence.

3 At some point Self changed his last name from Romero to that of their stepfather,

Phillip Self.

4 In exchange for Munoz‘s testimony and agreement to plead guilty to the first

degree murders of Aragon, Mans, and Jones, the attempted premeditated murder of

Feltenberger, the robberies of Feltenberger, Knoefler, and Meredith, and the attempted

robbery of Kenneth Mills and Ewy, the prosecutor agreed to seek a sentence of 51 years

to life in prison for Munoz, and request Munoz serve his sentence out of state.

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a. Meredith robbery

On October 8, 1992, about 10:30 p.m., defendants and Munoz robbed William

Meredith and stole his 1991 Nissan Pathfinder. They subsequently made a withdrawal

and a charge on Meredith‘s Visa card.

b. Mans and Jones murders

In the early hours of October 12, 1992, defendants, Munoz, and Chavez noticed

Timothy Jones and his best friend Joey Mans in a car at a hilltop area near Lake

Mathews. Romero and Munoz ordered the men out of the car at gunpoint. Romero told

Mans to relax and everything would be all right, and had Mans lie down on the ground

next to Jones. Romero told Chavez to ―[s]hoot,‖ adding, ―[s]omething like this.‖

Romero shot Mans in the back, killing him. He attempted to shoot Jones, but the gun

malfunctioned. Jones got up and ran down the hill, and defendants ran after him. Self

beat Jones with his fists and a pipe and shot him four times, killing him. Defendants stole

the victims‘ car keys and a box containing boots, shoes, magazines, and toiletries.

c. Kenneth Mills and Ewy assault

On October 22, 1992, between 11:30 p.m. and midnight, Kenneth Mills and his

girlfriend Vicky Ewy took a drive to look at the lightning. Defendants and Munoz pulled

up beside them and Self shot Mills, who was driving, in the face. Defendants continued

to chase them until Mills turned onto a golf cart path. Mills permanently lost vision in his

right eye.

d. Williams and Rankins attempted murders

In the early morning hours of October 26, 1992, Randolph Rankins was

unsuccessful in purchasing methamphetamine for defendants and Munoz. Romero said

he would ―be seeing‖ Rankins later; defendants and Munoz then left. Romero told Self

and Munoz that if Rankins did not refund their money, they should ―take him out,‖ and

Self agreed. About an hour later, Rankins was with acquaintance Paulita Williams in her

car at the intersection of Alexander Street and Myron Street in Riverside County.

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Williams was trying to back up to make a turn she had missed. Defendants‘ car appeared

and blocked Williams‘s car, and Munoz and Self got out. As Munoz began shooting,

Rankins escaped from the car. The bullets struck Williams in her left side and shattered

the driver and passenger windows. Self, who appeared to be smiling, began stabbing

Williams in the arm. Munoz pushed Self away and shot Williams. Williams suffered a

punctured lung and three cuts on her hand and arm, including a nine-inch-long gash on

her arm that required about 80 stitches. One of the bullets left a deep gash on her back

about six inches long and an inch and a half wide, and pellets were embedded in her

spine, shoulder bone, and muscle. Williams still felt the pellets constantly and could not

bear weight on her shoulders.

e. Magnolia Center Interiors burglary and vandalism

On the night of November 13, 1992, defendants broke into Magnolia Center

Interiors in Riverside. File drawers were emptied, fire extinguishers were sprayed on

fabric samples, and glue was sprayed into computers, telephones, fax machines, and

calculators. Words similar to ―You‘re going to die‖ were written on a sonogram picture

of the shop owner‘s unborn son and the picture was stabbed with a sharp object. The

words ―Just when you thought‖ and the number ―666‖ were written on the wall and the

words ―Now you die‖ were written in the bathroom. The store safe was closed but its

combination lock was missing and its hinges had been tampered with. A pair of bolt

cutters was found by the safe and several screwdrivers and chisels had been ―beaten flat,‖

as though ―somebody was pounding‖ on the hinges ―trying to pull the hinge pins out.‖ A

set of unlabeled master keys to offices around the city and a set of keys to the shop van

were taken, along with personal objects.

f. Steenblock kidnapping and robbery

On November 18, 1992, about 1:15 p.m., Alfred Steenblock was eating lunch in his

1992 Pontiac Grand Prix parked at the Mission Grove Plaza shopping center in Riverside.

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Self approached Steenblock, pointed a gun at his face, and told him to move over. Self

drove Steenblock to an empty field. Another car followed and parked behind them, and

two men, including Chavez, got out. Self demanded Steenblock‘s wallet, took out his

automated teller machine (ATM) card, and asked for his personal identification number

(PIN). He also took about $80 in cash and Steenblock‘s watch. The men instructed

Steenblock to get out of the car, walk into the field, and stay there for an hour, and then

left, taking Steenblock‘s car. Steenblock‘s partially stripped car was later recovered in a

rural area of Mead Valley.

g. Knoefler robbery

On November 20, 1992, about 3:30 p.m., Albert Knoefler was tending beehives at

Markham Street and Washington Street in Riverside County. Parked nearby was his

1987 pickup truck. Romero approached Knoefler, struck up a conversation about the

bees, and walked around the bee yard. Romero then brandished what appeared to be a

sawed-off shotgun and demanded the keys to Knoefler‘s truck. Munoz appeared wearing

a ski mask. Romero said he needed money for gas, and Knoefler handed him about $50.

The men left in the truck. The truck was stripped and found several weeks later.

h. Robbery of Jerry Mills, Sr., and Jerry Mills, Jr.

On November 21, 1992, about 12:45 p.m., Jerry Mills, Sr., and his 15-year-old son,

Jerry Mills, Jr., were engaged in target practice shooting about two miles south of the

Perris Airport in Riverside County. A gray hatchback pulled up and Self pointed a

shotgun at Mills. Defendants and Chavez got out of the hatchback and took from Mills

his pickup truck, along with a Colt Gold Cup .45-caliber semiautomatic pistol, a Ruger

.22-caliber semiautomatic pistol, a Ruger .22-caliber convertible Western-style single

action revolver, a Ruger 10/22 semiautomatic rifle with a dark mahogany stock and a

scope, a ―banana clip‖ or curved 25-round magazine, a 10-round magazine for the rifle,

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an ammunition box, toolbox, and about $150. Mills‘s abandoned truck was found a half-

hour later.

i. Aragon murder

On November 25, 1992, 22-year-old Jose Aragon was practicing motorcycle stunts

in San Timoteo Canyon in Riverside County. Defendants and Munoz engaged Aragon in

friendly conversation and, after Aragon showed them some stunts, Self shot him.

Romero picked Aragon up and asked: ―How does it feel to get shot? Does it burn?‖

Romero placed Aragon in the bed of his (Aragon‘s) pickup truck. Munoz asked him for

his keys and wallet, and Self told Aragon to tell him his ATM access code or he would

kill him. After Aragon gave Self the code, Self put his gun to Aragon‘s ribs and fired

repeatedly. Aragon was shot 11 times; all wounds were inflicted before and contributed

to his death.

Defendants and Munoz stole Aragon‘s wallet, toolbox, and Craftsman socket set.

As they drove off, Self laughed and said, ―Oh, wow, you should have seen the hole it

made.‖ Self made a circle with his fingers about two and a half inches in diameter.

Defendants and Munoz withdrew $300 from Aragon‘s bank account at two different

ATM‘s and ate lunch at Coco‘s restaurant.

Aragon‘s body was discovered later that afternoon by a 10-year-old boy. Two red

plastic fragments consistent with a 20-gauge sabot shotgun round manufactured by BRI

were found in his body. Jose Munoz was videotaped making one of the ATM

withdrawals, later arrested, and gave a statement to police that led to defendants‘ arrest.

j. Feltenberger attempted murder and robbery

On November 30, 1992, about 4:00 a.m., off-duty Ontario Police Sergeant John

Feltenberger was driving his 1991 red Geo Metro coupe in Moreno Valley near his home.

He was not armed or in uniform. A white car appeared and drove parallel to

Feltenberger, matching his speed each time he slowed down or accelerated. Feltenberger

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thought it might be his newspaper carrier, and pulled to the side of the road; the white car

stopped beside him. Self got out of the passenger side of the white car carrying a silver

or chrome sawed-off shotgun. He opened the driver‘s door and demanded Feltenberger

get out of the car and give Self his wallet. The wallet was in Feltenberger‘s back pocket,

but he said it was in the back of his car. The men switched positions so Feltenberger was

outside facing the car. Feltenberger ignored Self‘s demands for the wallet and, with his

hands raised, started to back away from Self. When Feltenberger was about 10 feet

away, he heard a voice from the white car in which Munoz was sitting say, ―Kill him.‖

Feltenberger said, ―Nobody has to get hurt,‖ and threw the wallet to Self. The voice

inside the car again said, ―Kill him.‖ Self said, ―I ought to shoot you,‖ and shot

Feltenberger in the chest. Feltenberger collapsed and Self drove off in the Geo Metro.

Feltenberger was bleeding and his lung had collapsed, but he managed to reach a

neighbor‘s house and obtain aid. At the hospital Riverside County Sheriff‘s Deputy

David Green saw medical personnel remove a small piece of red plastic measuring about

two inches by one inch from Feltenberger‘s right arm. In his ―thousands‖ of times firing

a shotgun, Green had never seen a similar object in a round. A different deputy sheriff

saw a red plastic object under Feltenberger‘s shirt in his chest area. Feltenberger was in

intensive care for three days and hospitalized for about 10 days.

Both the red material observed by the deputies and the red sabot material found in

Aragon‘s body were identified at trial as consistent with a BRI 20-gauge sabot shotgun

round. The pathologist who performed Aragon‘s autopsy testified that injuries from

sabot rounds are uncommon.

In his statement to police, Self admitted shooting Feltenberger with a 20-gauge

sawed-off shotgun and taking his car. Feltenberger testified that when his car was

returned to him in January 1993, it was missing his flashlight, ammunition pouch, and

axe. In Romero‘s statement to police he admitted that the ―pouch‖ he had had come from

the Feltenberger incident. Munoz testified he and Self found the ammunition pouch in

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Feltenberger‘s car, and that Romero later ―took it‖ because it fit the magazines for his

.45-caliber weapon.

k. Greer kidnapping and robbery

On December 5, 1992, about 8:00 p.m., Robert Greer withdrew cash from an ATM

at the corner of Alessandro Boulevard and Trautwein Road in Riverside. As he returned

to his 1992 Honda Accord EX, Romero, wearing a ski mask, brandished a gun and told

Greer to throw him his car keys. Romero ordered Greer to sit on the passenger side of

the car. As Romero drove, he kept the gun pointed at Greer. The gun was a dull gray or

silver and appeared to be a semiautomatic, ―like a .45‖ caliber. They drove about nine

miles to a remote area in Mead Valley. Romero took Greer‘s car, about $40, and Greer‘s

driver‘s license and ATM card. He asked for Greer‘s PIN number, and $800 was later

withdrawn from Greer‘s bank account. Greer walked about two miles to a house where

he contacted police.

l. Beliveau robbery

On December 7, 1992, about 12:45 a.m., Roger Beliveau was in an unlit restroom at

Hunt Park in Riverside. Romero approached him and Beliveau heard the sound of a

round being chambered in a semiautomatic pistol. Romero told Beliveau to give him his

car keys and he would not get hurt. He then told Beliveau to wait in the restroom for five

minutes and drove off in Beliveau‘s maroon 1978 Ford LTD. Romero stopped at the end

of the parking lot, where another man threw trash bags into the back of the car; the two

men then left. Police later found Beliveau‘s ransacked car in a shopping center at

Alessandro Boulevard and Trautwein Road in Riverside.

m. Romero’s escape attempt

In April 1994 Arthur Dicken was housed in a Riverside jail cell next to a cell

housing Romero and Michael Aragon (who was no relation to murder victim Jose

Aragon). During the nighttime between April 1 and April 14, 1994, Dicken observed

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Romero and Aragon cutting the two bottom bars of their cell door with a hacksaw blade.

Romero told Dicken he was planning to escape by taking the nighttime deputy hostage,

threatening him with a shank, and leaving the jail. Dicken observed Romero with a four-

to six-inch-long sharpened metal piece or shank and Aragon with a makeshift spear.

Romero and Aragon hid the damage to the bars by taping and painting them. Jail

personnel learned of the planned escape and Romero and Aragon were moved to a

different cell. Inspection of the two bars revealed they were completely cut through and

could be removed by hand to create a space large enough for an inmate to leave the cell.

A weapon was found in the cell.

n. Self’s escape attempt

On December 16, 1994, about 1:00 a.m., Riverside County Deputy Sheriff Scott

Collins noticed a car parked near the jail in a lot reserved for authorized vehicles. The

window for the ground floor cell in which Self was incarcerated was visible from the

car‘s location. When the driver, Romero‘s girlfriend, Sonia Alvarez, was asked what she

was doing there she gave several different explanations and was arrested. Sheriff‘s

deputies inspected Self‘s cell and found gouges in and around the rear window and

concrete chips on his bed below. A welded bracket from a cage around Self‘s television

set had been removed and was found under the television. Self had an inch-long cut on

one finger and redness on both hands.

2. Defense case

Defendants rested without presenting evidence.

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B. Penalty Phase

1. Prosecution case

a. Victim impact evidence5

(1) Jose Aragon

Lydia Roybal-Aragon, Jose Aragon‘s stepmother, married Jose‘s father when Jose

was about 13. The family lived in Albuquerque, New Mexico. In 1985, they moved to

Redlands, California.

Lydia described Jose as a ―kind,‖ ―gentle soul‖ who ―never hurt anybody.‖ At the

time of his death, Jose was a 22-year-old senior engineering student at California State

Polytechnic University. He was a dedicated student and studied constantly. Jose‘s

favorite activity was motorcycle riding, and he had received numerous competition

trophies. Jose was close to his siblings.

Lydia described how the family learned of Jose‘s murder and its effect on them.

After Jose‘s death, his father and brothers Steven and Carlos isolated themselves and

rarely interacted with the family. His father lost interest in his job, about which he had

previously been passionate, and Steven suffered from insomnia. Jose‘s younger sister

Laura started to misbehave and had difficulty completing her schoolwork.

Leighette Hopkins, Jose‘s friend since high school, described Jose as a calm and

friendly person who made people laugh. He was a bright and hard-working student who

took time to help Leighette study for a chemistry test the night before he died.

Stephanie Aragon, Jose‘s younger sister, testified that when their parents divorced

Jose and Steven moved to California with their father. Stephanie, who was then seven

years old, stayed in New Mexico with her mother. Stephanie saw Jose about four times a

year. Jose was quiet and shy and protected her.

5 Because some witnesses and victims shared surnames, for clarity we refer to the

victims and witnesses by their first names in this portion of the opinion.

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(2) Joey Mans

Catherine Mans, Joey Mans‘s mother, testified he was her only son and had five

sisters. He was 26 years old when he died. Joey was generous, polite, smart, and

protective of his family. He was mechanically inclined and could fix anything.

Catherine did not attend Joey‘s funeral because she did not ―want to see [her] son in a

box,‖ and had never visited his grave. She ―almost died [her]self,‖ felt angry all the time,

quit her job, and had been prescribed tranquilizers.

Angela Mans, younger than Joey by six years, testified her brother was kind and

gullible. He loved to draw and play guitar and work on cars. When Angela saw Joey in

his casket, he ―looked so scared,‖ so she knew he was afraid when he died. Because of

fear she would be similarly attacked, for two months she did not leave her home except to

go to work, and four years later at the time of her testimony she still did not go out at

night. Their father had not celebrated Christmas in three years because the family was

not ―complete.‖ Every year on Joey‘s birthday, Angela and other family members

brought to his grave and released a number of balloons corresponding to what his age

would have been.

(3) Timothy Jones

James Jones, Timothy Jones‘s father, testified that Timmy had a brother, a sister,

and two stepbrothers. He was 22 years old when he died. Timmy was the ―[m]ost

wonderful kid in the world,‖ who was kind and generous and ―would do anything for

you‖ and ―didn‘t hate anyone.‖ James could not understand ―how they could take his

life.‖ James had visited Timmy the night before he died. ―[L]ike always,‖ Timmy told

James, ―I love you, Pop,‖ and hugged him goodbye. James next saw Timmy in the

funeral parlor and wished he could have died instead of him.

Timmy‘s parents divorced when Timmy was about seven years old and the children

lived with their father. Shortly after Timmy‘s death, his mother had a stroke and died

about two years later.

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b. Unadjudicated criminal activity

(1) Romero

On September 22, 1993, Rodney Medeiros, who was incarcerated with Romero,

received food from the commissary. Romero and other inmates demanded Medeiros give

them his food and beat him when he refused. He was treated for a week in the medical

ward.

On October 6, 1993, about 9:20 p.m., inmate Walter Jutras was sleeping in his cell.

He awoke when Romero put his knee on the back of his neck. Romero and another

inmate repeatedly struck him.

On October 27, 1993, Riverside County Sheriff‘s Deputy George Munoz removed

Romero from his jail cell and told him to empty his pockets. Romero removed a

sharpened toothbrush that could be used as a weapon. In a box of his belongings Munoz

found a broken hairbrush handle that appeared to have been sharpened.

On September 3, 1994, and October 29, 1994, shanks were found in Romero‘s one-

man cell.

On June 12, 1994, Romero lured fellow Riverside jail inmate Olen Thibedeau to his

cell and stabbed him in the stomach with a spear more than four feet long. Thibedeau

was facing charges of child molestation and was later convicted of those crimes.

On February 8, 1995, Romero visited with Stephanie Stinson, the mother of his son,

and their conversation was recorded and a portion played for the jury. Romero said: ―I

don‘t like violence. I try to avoid it. But when they stick a child molester next door to

me [and] expect me not to do something, I‘ll be his friend, talk to him real nice, bring

him close to the door, and then make him a little spear about this long, about this skinny,

that‘s real hard and won‘t bend. You put a pencil at the end of it and strips of wood.

[¶] . . . [¶] Stick him in his neck.‖

Between October 1994 and March 1995, Romero squirted urine from a bottle on

inmate Tyreid Hodges, who had been charged with child molestation, stepped on a carton

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of feces splattering them on Hodges, and ―squished‖ a shampoo bottle containing urine,

causing it to hit Hodges. He also threw a hairbrush at Hodges.

(2) Self

Milton Solorzano attended high school with Self. On May 22, 1992, while

Solorzano was standing in the lunch line, Self charged toward him. Solorzano moved out

of the way and Self hit his head on the wall. Solorzano grabbed Self and held him in a

headlock for about two minutes until a teacher came. Self repeatedly tried to hit

Solorzano with his fist and said: ―I‘m going to get you. Let me go.‖

On June 24, 1993, Self and another inmate approached inmate Oswaldo Vazquez

and asked him to massage their backs. Vazquez refused. Self threatened Vazquez with a

pencil and said he would stab Vazquez in the neck if he did not give Self a massage.

Vazquez massaged Self‘s back. Self then told Vazquez to suck his penis. Vazquez

declined, and Self and another inmate beat him while a third inmate stood guard.

Vazquez had a scar near his eye as a result of the attack.

On September 19, 1993, a shank was found in Self‘s box of personal belongings.

On November 25, 1994, three shanks were found in Self‘s one-man cell.

On May 30, 1994, Self punched inmate Mario Garcia Pescador in the mouth and left

eye. One or two other inmates joined Self. The victim received six stitches above his

eye.

On June 5, 1994, about 1:00 a.m., Riverside County Sheriff‘s Deputy Manuel

Correa responded to inmate Jacob Aramburo‘s screams for help. Aramburo was sobbing

on the floor of his cell in a fetal position. He had a cut on the back of his head, scrapes

on his back and chest, and pain in his left shoulder and lower back, and the right side of

his face was swollen. Aramburo shared the cell with other inmates including Self. Self‘s

knuckles were red and he had a fresh cut on one knuckle.

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On July 22, 1994, Riverside County Sheriff‘s Deputy Alfonso Campa responded to

calls for help from inmate Richard Reyes. Reyes was missing several teeth and bleeding

from his lip and gum, had red marks on his face, and looked scared. Campa examined

the other inmates in Reyes‘s cell. Self was bleeding from a puncture wound on one of his

knuckles and his other knuckles were red. None of the other inmates had marks on their

hands. On July 24, 1994, Self told his mother in a recorded conversation that was played

for the jury that he had ―busted out‖ an inmate‘s ―two teeth.‖

2. Defense case

a. Both defendants

Maria Self, defendants‘ mother, testified that defendants‘ biological father was

Orlando Romero, and she was married to their stepfather, Phillip Self. Maria was 17 in

1968 when she married 22-year-old Orlando. They were married for six years and had

four sons; she was pregnant with Self when she filed for divorce.

Maria never smoked, drank alcohol, or used drugs when she was pregnant with

defendants. Orlando never worked. He was physically abusive to Maria, and once put a

gun to her face and said he should kill her. On another occasion he threatened the entire

family by filling the house with thick smoke and refusing to let them leave. Both

Orlando and Maria had frequent affairs. At one point Maria called 911 and told the

dispatcher she was ―going to kill them all because [she] couldn‘t handle them.‖ On

cross-examination she said that although she spoke to the dispatcher for over two

minutes, and cried hysterically that she was going to kill all of her children, no police

officer ever came to her house to investigate.

After Maria left Orlando, she and her sons moved to Modesto for about four years.

Maria did not work, and she abused alcohol and drugs, including methamphetamine, in

front of the children. She was also physically and verbally abusive to the boys, and never

hugged them or told them she loved them. When Self was about two years old, she

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slashed his face and the children were removed from her custody. About a year later, the

children were returned to her. On cross-examination, Maria said she had struck Self with

a broken fly swatter, he had one cut, and she did not seek medical attention for him.

Maria agreed with the prosecutor that she had been distraught and told a counselor at the

department of mental health she was ―in a bad way‖ and ―needed somebody to help [her]

with the children.‖ The following day her children were placed with relatives.

At some point the family left Modesto and moved to Turlock for about a year.

Maria continued to drink and she also used methamphetamine and LSD. The family then

moved to Stockton, where they lived with a heroin addict and dealer. Romero was in

school, but she never visited the school or asked about his homework. Romero closely

resembled his biological father, and Maria frequently reminded him of this circumstance

and said that she hated his father.

The family then returned to Riverside. Maria continued to use drugs and did not

monitor the children‘s school work. Between the time Maria married Orlando and when

she married Phillip Self, she had been in about 10 relationships. After her divorce from

Orlando the family moved frequently, living in 10 or 11 different places.

On cross-examination Maria agreed with the prosecutor that shortly after returning

to Riverside she met and moved in with her current husband, Phillip Self. Romero was

about eight years old and Self about five years old. Phillip was very good to the boys.

He took them fishing, showed them how to change a tire, and treated them as his own

children. Maria agreed with the prosecutor that Phillip was ―the best thing that ever

happened to [her],‖ and said that when she would try to abuse alcohol or drugs, ―he

wouldn‘t let [her].‖ Maria and Phillip had two girls together, and Maria had tried to be a

good parent to them.

When Romero was 14, he asked to live with his father. Maria allowed him to go,

but believed her ―baby [was] gone . . . into somebody‘s hands who really doesn‘t care

about him.‖ When Romero became involved with drugs, Maria told him she would help

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him in any way she could to get off drugs. She tried to arrange for him to go to the

treatment program Teen Challenge, but there was a long waiting list.

When Self was about 14 or 15 years old he lived with Maria‘s niece for about four

months and then came home; at some point he also lived with his father. Self began

using drugs and alcohol. Maria sent him to a Chino drug rehabilitation center for two

weeks. Afterward, Self did ―much better.‖ He was home-schooled and received good

grades. Self relapsed, however. Maria had two small girls in the house and did not want

them to see their brothers abusing these substances, so she told Self he had to leave and

sent him to live with her friend Charlene. Self later lived with Maria‘s mother. Maria

testified that Self ―does beautiful artwork.‖

Maria loved defendants. Since their arrest three and a half years earlier, Maria had

spent much of her time crying and praying.

Anthony Self, defendants‘ older brother, testified he had enlisted in the Army at the

age of 18 and reenlisted for another four years when he was 22 years old. He was a

combat engineer and paratrooper in the 27th Engineer Battalion at Fort Bragg, cleared

mine fields during Desert Storm, and supervised other soldiers.

When Anthony was about eight years old, he and his family lived with Bobby

Guzman. Guzman once disciplined Self by making him stand in a corner for two hours

with soiled underwear on his head. At some point Maria married Phillip Self, whom the

boys liked, and whom Anthony considered his father.

Anthony and his brothers would frequently send Self to fight the next-door neighbor

to ―see what he could take.‖ Anthony experimented with drugs in high school and once

gave Self heroin when he was in elementary school. Maria and Phillip were unaware of

his drug use. On cross-examination Anthony agreed he had never mentioned giving Self

heroin to any of the investigators he had spoken to before trial. Maria told the boys to

avoid drugs and both she and Phillip would have been very upset if they had learned

Anthony had been drinking alcohol in high school.

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When the boys upset Maria she would ―lash out at us with whatever she had in her

hand,‖ such as a fly swatter or broom. She once threw a knife at Anthony, hitting him

with the handle. On cross-examination Anthony testified it was important to Maria that

the boys did well in school and she wanted them to attend school and complete their

homework.

Anthony used the last name Self because his biological father was ―really never any

part of our lives‖ and did not provide any financial support. He said, ―We lived pretty

much in poverty with my mother raising us.‖ When Phillip Self joined the family he was

very good to the boys, taking them fishing and supporting them and showing Anthony

how to work on cars.

b. Romero

Carmen Burrola, Maria Self‘s sister and Romero‘s aunt, testified that when Romero

was in about the second grade, he and his brother Anthony stayed with her and her

husband and daughters for about two years because Maria had a ―nervous breakdown.‖

Romero was kind and polite. Burrola and her husband took the boys to Disneyland and

other amusement parks and to the mountains. Burrola gave the boys chores to do, tried to

teach them right from wrong, and gave them advice on how to navigate life‘s problems.

Burrola had never seen Maria abuse the boys. Burrola knew Orlando, Romero‘s

biological father, and characterized home life with him and Maria as ―[a]wful.‖ She

recalled Orlando ―drunk, . . . just lying there, not doing nothing.‖ Phillip Self was a good

man who was ― [v]ery patient‖ with the boys and very good to Maria. Burrola was very

sad and surprised when she heard Romero was charged with murder because he ―was

always a good boy‖ and ―very respectful.‖

Mona Suzette Quezada, Romero‘s cousin, had worked for the Riverside Transit

Agency for eight years. She was 10 years older than Romero and grew up with him. She

described him as a quiet child. Their grandparents lived in the area on a small farm. At

17

times when she was 10 to 12 years old, she and her grandparents would pick up Romero

and his siblings either because they were not being taken care of or because Maria was

upset with Romero‘s father. On those occasions Romero and his siblings often did not

have ―decent food to eat,‖ and sometimes were without electricity. Her grandmother was

very good to Romero and his siblings when they were at her house. Quezada was very

surprised when she heard Romero was charged with murder because it ―was totally out of

character.‖

Margaret Lopez, Romero‘s aunt and godmother, took care of Romero for two

months when he was about a year and a half old. She did not have a lot of contact with

Romero when he was a child. When he was a teenager Romero visited her whenever he

could and was respectful. She was shocked when she heard he was charged with murder

because he was a ―good kid‖ and ―wouldn‘t do what they are saying.‖

Corinna Leon, Romero‘s cousin, took care of him frequently when he was young.

As a teenager Romero was quiet and kind and interacted well with her children. At some

point as a teenager he had a girlfriend and a baby of his own and Corinna saw him less

frequently. When Romero‘s mother Maria returned from ―up north,‖ she was not ―taking

care of the boys,‖ although Corinna could not recall any particular incident when they

were not fed or clothed.

Catherine Mejia, Romero‘s cousin, lived with Romero for about three months in

1990. Romero was quiet, happy, and nice.

Christine Arrabito testified that she had attended school with Romero from

elementary through high school. After high school Romero lived with Arrabito and her

family in Perris for about a month. Later that same year he lived with her and her family

in Pacifica for about five months, saying he ―really wanted to . . . change‖ and wanted a

―fresh start.‖ Although he held various jobs, he did not pay his share of the rent or phone

bill and was asked to leave. On cross-examination Arrabito did not recall telling an

investigator that Romero said he and his friends would beat up people who ―piss[ed] him

18

off.‖ She relayed Romero‘s description in high school of watching the drivers of

expensive cars for a long period of time before stealing their cars. She believed her

family had given Romero a chance in Pacifica and he had misused it and taken advantage

of them. After that she did not want anything to do with him.

Janice Babish, Arrabito‘s mother, testified that Romero came to live with them in

Pacifica because he ―felt like he needed to turn his life around‖ and thought it would help

to leave the Riverside area. On cross-examination Babish said Romero would claim to be

still working at a job after he had been fired so Babish would think he was still earning

money. When he left their home he said he would pay the family back for his phone bill

but never did.

Sheila Torres, Romero‘s cousin and a California deputy labor commissioner, was

two years older than Romero‘s mother. Once when she and her grandparents took

groceries over to Romero‘s house, his father Orlando was passed out in the house. Her

cousins were toddlers and were outside playing in a field.

Torres said at one point Romero‘s mother Maria Self came to live with her while

Romero lived with another family. For about a year Maria occasionally dated a heroin

dealer, Henry Alvarado. Torres was upset and spoke to Maria because Alvarado ―had no

redeeming qualities.‖ Torres also witnessed Maria throw objects at her sons. She

commented, ―it seemed like [Maria] was either riding them for something or not paying

any attention to them at all.‖ Maria ―was always comparing [Romero] to his father‖ and

―telling him that he wouldn‘t amount to anything.‖

Torres also said she had a brother who committed suicide, a niece who was beaten

to death, and a great-uncle, whom neither she nor defendants had met, who was convicted

of murder.

19

c. Self

Sheriff‘s Deputy John Bianco worked at the Robert Presley Detention Center, where

Self was housed in a cell by himself. For two hours a day he could leave the cell and use

art supplies. The jury was shown several pieces of Self‘s artwork.

Margaret Louie, Self‘s high school art teacher, testified that Self had voluntarily

participated in creating a mural to honor an art teacher who had died, and had drawn a

cover for a school literary magazine. She described Self as ―[v]ery talented, very

motivated,‖ and someone who always volunteered.

3. Rebuttal

a. Both defendants

Robin Levinson, a defense private investigator, conducted a taped interview of

Maria Self on June 8, 1993, and had a transcript prepared. When Maria was asked if she

used drugs around her children, she said she had never used drugs or been drunk in front

of them but rather always tried to shield them.

Levinson had also interviewed Christine Arrabito. Arrabito said Romero told her he

and his friends would beat up individuals who made them angry, but she never saw this

quality in him and thought it was ―all talk.‖

b. Romero

Maria Self, defendants‘ mother, testified she did not recall telling an investigator

during a taped interview that Romero‘s ―attitude was very bad,‖ ―he never wanted to take

responsibility for anything that he did,‖ and he did poorly in school. When asked if it

was true Romero never wanted to take responsibility for his actions, Maria replied,

―Well, he may have not liked to, no, but sometimes he did.‖ On cross-examination she

agreed with defense counsel that if something had been Romero‘s fault, she would ―just

beat him.‖

Robin Levinson testified Maria Self had said during her taped interview: ―His

attitude was very bad. It was like he never wanted to take responsibility for anything that

20

he did. It was always somebody else‘s fault. He denied things that would be in front of

somebody‘s face and he would still deny it. He didn‘t want to get up in the morning. He

didn‘t do well in school. He did very poorly.‖ On cross-examination, Levinson noted

Maria had also said Romero ―had very low self-esteem, even though he was the best

looking kid on the block.‖

II. DISCUSSION6

A. Pretrial Issues

1. Challenges to juror questionnaire

Self contends that asking each prospective juror to identify on the juror

questionnaire his or her race and ethnic background led to the improper discharge of

prospective jurors based on race and ethnicity and resulted in the selection of a biased

jury that violated Self‘s right to a representative cross-section of the community.7 Before

6 Before turning to defendants‘ claims, we address three preliminary matters. First,

defendants each make a blanket statement they join in all issues raised by each other that

may accrue to their benefit. We have recently strongly disapproved of this practice.

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364 (Bryant, Smith

and Wheeler). As in Bryant, Smith and Wheeler, however, we will assume defendants

have complied with California Rules of Court, rules 8.630(a) and 8.200(a)(5), in order to

avoid further delay. (Bryant, Smith and Wheeler, at p. 364.)

Second, ―as to many claims defendants allege for the first time that the error

complained of violated their federal constitutional rights. To the extent that in doing so

defendants have raised only a new constitutional ‗gloss‘ on claims preserved below, that

new aspect of the claims is not forfeited. However, ‗[n]o separate constitutional

discussion is required, or provided, when rejection of a claim on the merits necessarily

leads to rejection of [the] constitutional theory . . . .‘ ‖ (Bryant, Smith and Wheeler,

supra, 60 Cal.4th at p. 364.)

Finally, Romero‘s first ―claim‖ presents no claim of error but is simply a lengthy

exegesis on how ―any substantial error could have affected the penalty verdict.‖ Absent

reference to a claim of error, it is difficult to meaningfully assess or respond to his

discussion. Where relevant, we invoke the proper standard of prejudice for that asserted

error, and nothing in Romero‘s discussion persuades us to revisit these standards.

7 Question 1.D. read: ―Your race and ethnic origin: _____.‖

21

jury selection defendants unsuccessfully objected to the use of a juror questionnaire

because in their view it would be used by the prosecutor to strike any prospective juror

expressing ―even a minimal reservation about imposing the death penalty.‖ Once the

questionnaire was drafted, Self objected to a question regarding the then recent

O.J. Simpson trial. Self did not object to the question regarding the prospective juror‘s

race and ethnic background, and the claim is therefore forfeited.

Self further contends use of the jury questionnaire to dismiss 56 prospective jurors

was unconstitutional. Several of these prospective jurors were questioned on voir dire,

and in any event, Self stipulated to the dismissal of all of them and the claim is therefore

forfeited. Although the trial court at times commented on the prospective jurors who had

been stipulated for excusal, these statements were not findings. As we have explained:

―A court may allow counsel to prescreen juror questionnaires and stipulate to juror

dismissals. [Citations.] When prospective jurors are formally dismissed pursuant to

stipulation rather than cause, the trial court makes no findings, and we have nothing we

can review. [Citation.] Consequently, a stipulation to the excusal of jurors forfeits any

subsequent objection to their omission from the jury pool.‖ (People v. Duff (2014) 58

Cal.4th 527, 540; see People v. Booker (2011) 51 Cal.4th 141, 159 [―We previously have

barred belated challenges to stipulated excusals of prospective jurors‖].) Unlike in

People v. Stewart (2004) 33 Cal.4th 425, 444–445, 448, on which Self relies, the

prospective jurors here were not excused over Self‘s objection but rather with his

consent.

2. Asserted prosecutorial misconduct

a. Assertedly racially biased voir dire

Self contends during voir dire the prosecutor improperly and repeatedly asked

Hispanic prospective jurors more ―probing and detailed questions‖ than he asked

Caucasian prospective jurors in a successful effort to eliminate ―all eligible, qualified

22

Hispanic prospective jurors from the final jury pool.‖ As Self concedes, he did not object

below on the ground the prosecutor‘s voir dire was racially biased and the claim is

therefore forfeited. Such a failure ―deprives the trial court of the opportunity‖ to create a

record and to ―correct potential error in the first instance.‖ (People v. Lewis (2008) 43

Cal.4th 415, 481; id. at pp. 481–482 [failure to press for a ruling on a Wheeler8 motion

forfeits the issue on appeal]; see People v. Richardson (2008) 43 Cal.4th 959, 984 [failure

to make a Wheeler motion at trial ―forfeits the issue on appeal‖]; People v. Gallego

(1990) 52 Cal.3d 115, 166 [no error appears when the defendant ―failed even to raise a

Wheeler claim, let alone establish a prima facie case of misuse of peremptory

challenges‖].) Contrary to Self‘s assertion, nothing in Catchpole v. Brannon (1995) 36

Cal.App.4th 237, 244 (disapproved in People v. Freeman (2010) 47 Cal.4th 993, 1006,

fn. 4), which concerned a litigant‘s claim of judicial partiality for the first time on appeal,

compels a different result.

Self further contends in his reply brief that trial counsel was ineffective for failing to

object to the asserted misconduct. ―Obvious reasons of fairness militate against

consideration of an issue raised initially in [a] reply brief . . . .‖ (Varjabedian v. City of

Madera (1977) 20 Cal.3d 285, 295, fn. 11.) Moreover, ―deciding whether to object is

inherently tactical, and the failure to object will rarely establish ineffective assistance.‖

(People v. Hillhouse (2002) 27 Cal.4th 469, 502 (Hillhouse).) Here, because no

prosecutorial misconduct claim was raised below, we have no record—such as the

prosecutor‘s reasons for the manner in which any particular prospective juror was

questioned—on which we can assess Self‘s claim. (People v. Mendoza Tello (1997) 15

Cal.4th 264, 266–267 [ineffective assistance of counsel claims are generally properly

decided in a habeas corpus proceeding rather than on appeal].)

8 People v. Wheeler (1978) 22 Cal.3d 258.

23

b. Assertedly misleading comments about mitigation

Self contends the prosecutor misrepresented the nature of mitigating evidence

during voir dire. We disagree.

The prosecutor said to one group of prospective jurors: ―You may hear evidence in

mitigation, things, perhaps the defendant was a war hero. Perhaps he saved his platoon in

the Persian Gulf and received a Silver Star. Perhaps he once pulled a family from a

burning car. Perhaps he once gave bone marrow in a transplant so that a child could

survive. Perhaps you may hear evidence that would make you have sympathy for him,

all of which you can consider in making your [penalty] decision. And there is only one

decision to make when you are in the penalty phase, that is between life without parole or

death. There is no other option in the penalty phase.‖ He made similar comments on

other occasions, at times using hypothetical examples of Self being a scout leader or

soccer or Little League coach and having a positive effect on young people.

Defense counsel said to one group of prospective jurors: ―[W]e would present

mitigating factors, things that we would want you to consider in terms of making this

decision, and those mitigating factors can be anything. There ha[ve] been previous

examples given by [the prosecutor] of . . . doing a heroic act, for example, or saving

somebody from a burning car, a burning building, providing a bone marrow transplant.

What I am telling you is, I don‘t want you to have any preconceived notion as to what

mitigating factors might be present. If the only people that deserve life without parole

would be heroes, nobody would probably receive it. Do you follow me?‖ He informed a

different group of prospective jurors ―[m]itigating factors . . . can be anything positive‖

about Self and another ―[m]itigating factors are anything that may tend to mitigate

against what took place‖ including ―[p]ositive things about‖ Self.

At the end of the penalty phase the trial court instructed the jury that a ―mitigating

circumstance is any fact, condition, or event which, as such, does not constitute a

justification or excuse for the crime in question, but may be considered as an extenuating

24

circumstance in determining the appropriateness of the death penalty.‖ It further

instructed the jury a mitigating circumstance did not have to be proved beyond a

reasonable doubt; the jury need not unanimously agree on the presence of a mitigating

factor before a juror could consider it; the mitigating circumstances read were merely

examples and a juror could ―also consider any other circumstances relating to the case or

to the defendant as shown by the evidence as reasons for not imposing the death penalty‖;

a juror could find a mitigating circumstance existed if there was any evidence, however

weak, to support it; any mitigating circumstance could outweigh all the aggravating

factors; the jury could reject death as a penalty based solely on sympathy or compassion

resulting from the mitigating evidence; and the jury could decide even in the absence of

any mitigating evidence that the ―aggravating evidence is not comparatively substantial

enough to warrant death.‖

Self did not object to the prosecutor‘s statements or seek an admonition, and no

exception to the general rule requiring an objection and request for admonition is

applicable. The claim is therefore forfeited. (People v. Samayoa (1997) 15 Cal.4th 795,

841 (Samayoa).)

It is also meritless. Self contends that the prosecutor‘s comments were improper

because they ―permitted the jury to infer that only highly or strongly mitigating evidence

would be worthy of consideration in deciding penalty and that [Self] was required to

introduce‖ such evidence ―to counter any evidence in aggravation [and] to establish that

he did not warrant death.‖ There is no reasonable likelihood the jury so construed the

prosecutor‘s comments. (People v. Centeno (2014) 60 Cal.4th 659, 667 [―When

attacking the prosecutor‘s remarks to the jury, the defendant must show‖ in the context of

the whole argument and the instructions there was ― ‗a reasonable likelihood the jury

understood or applied the complained-of comments in an improper or erroneous

manner.‘ ‖].) Here, defense counsel on at least one occasion corrected and clarified the

prosecutor‘s remarks through his own voir dire comments. (People v. Seaton (2001) 26

25

Cal.4th 598, 636.) More critically, the trial court‘s instructions at the end of trial fully

informed the jury that it could consider in mitigation any circumstance—no matter how

weak the evidence of that circumstance—relating to the case or to Self, and could find

life imprisonment without the possibility of parole the appropriate penalty even in the

absence of any mitigating evidence.

Self further contends that the prosecutor improperly insinuated that Self ―bore a

heavy burden of proof in order to obtain a sentence less than death.‖ Nothing in the

prosecutor‘s remarks referred to a burden of proof and, once again, the trial court

exhaustively instructed the jury on the proper definition and use of mitigating evidence.

In his reply brief Self asserts trial counsel was ineffective for failing to object to the

prosecutor‘s challenged comments. There was no misconduct and therefore no

deficiency on counsel‘s part in failing to object.

3. Evidence of Feltenberger’s attempted murder

Defendant Romero contends the trial court erred in admitting ―gruesome‖ evidence

of Feltenberger‘s attempted murder to prove Romero received the victim‘s stolen

ammunition pouch. (§ 496; see ante, at pp. 6–8.) He asserts his ―guilt of the uncontested

receiving charge was clear without the attempted-murder testimony, so the error could

not have affected that determination,‖ but the testimony was prejudicial at the penalty

phase. We disagree.

Before opening statements, the prosecutor moved to have the juries for both

defendants hear Feltenberger testify. The trial court admitted Feltenberger‘s testimony,

but directed defense counsel to prepare a limiting instruction, and admonished the

prosecutor not to in any way suggest Romero was involved in Feltenberger‘s shooting.

Before Feltenberger testified, the trial court instructed the Romero jury: ―You are about

to hear evidence in the form of testimony from John Feltenberger. This evidence is not

being offered to show that the defendant Orlando Romero is involved in the alleged

26

robbery and attempted murder of Mr. Feltenberger. On the contrary, there will be no

evidence provided that Mr. Romero was . . . involved in this incident. Instead, this

evidence is being offered as it relates to Count XX, receiving stolen property. You are to

consider it solely as it relates [to], one, whether the property was in fact stolen, and, two,

whether Mr. Romero had knowledge that the property was stolen.‖ After Feltenberger‘s

testimony, Romero unsuccessfully moved to preclude testimony by other witnesses

describing the investigation into the Feltenberger shooting, including the discovery of the

red sabot material found in Feltenberger. At the close of the guilt phase the trial court

gave Romero‘s jury a limiting instruction similar to that given before Feltenberger‘s

testimony.

Here Romero asserts only that the evidence was prejudicial at the penalty phase, and

we therefore need not consider whether it was properly admitted at the guilt phase.

Assuming, therefore, without deciding, that evidence of the details of the attack on

Feltenberger was improperly admitted, there is no reasonable possibility a different

penalty verdict would have resulted absent admission of this evidence. (See People v.

Brown (1988) 46 Cal.3d 432, 448.) Both before Feltenberger‘s testimony and at the close

of the guilt phase the trial court instructed the jury the evidence was not being offered to

show Romero was involved in the robbery or attempted murder of Feltenberger and there

was no evidence Romero was involved in this incident. We presume the jury understood

and followed this instruction. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1178.)

Moreover, other evidence demonstrated Romero‘s role in the brutal and unprovoked

murders of Aragon, Jones, and Mans, and the attempted murders of Kenneth Mills,

Williams, and Rankins, as well as his in-custody violence against Medeiros, Jutras,

Thibedeau, and Hodges. In addition, the jury acquitted Romero of the Steenblock

robbery and kidnapping charges, showing it carefully evaluated the evidence.

27

4. Joinder and severance

Romero contends that joinder of the Magnolia Center Interiors (Magnolia Center)

burglary (predicated on entry with intent to steal and vandalize) and vandalism charges

and the receiving stolen property (Feltenberger‘s ammunition pouch) charge with the

remaining counts was ―statutorily unauthorized‖ under section 954. Defendants further

contend the trial court abused its discretion in denying the motion to sever the Magnolia

Center charges from the remaining charges, and Romero asserts the trial court abused its

discretion in failing to sever the charge of receiving stolen property from the remaining

charges against him. We disagree.

Before trial, Self, joined by Romero, moved to sever the murder counts from the

remaining charges. Defendants focused particularly on severing the murder counts from

the counts involving the attempted murders of Feltenberger and Williams. The motion to

sever did not contest that the statutory requirements for joinder had been met. The trial

court denied the motion.

Because it generally promotes efficiency, joinder of charges is ― ‗preferred by the

law.‘ ‖ (People v. Hartsch (2010) 49 Cal.4th 472, 493 (Hartsch).) When the statutory

joinder requirements are met, a defendant can demonstrate error in a ― ‗ruling allowing

joint trial . . . only by making a ―clear showing of prejudice . . . .‖ ‘ ‖ (Ibid.) As can be

seen, defendants did not claim joinder of any of the counts was statutorily unauthorized.

Under section 954, this claim is therefore forfeited.

Even had the claims of improper joinder not been forfeited, they would have lacked

merit. The charges were properly joined because they were ―connected . . . in their

commission‖ within the meaning of section 954. Charges are so connected if ― ‗ ―there is

a common element of substantial importance in their commission.‖ ‘ ‖ (Alcala v.

Superior Court (2008) 43 Cal.4th 1205, 1218, italics omitted.) Here, the crimes all

occurred within a two-month time period and, as the trial court observed, each involved a

felonious intent to obtain property. (People v. Koontz (2002) 27 Cal.4th 1041, 1054–

28

1058, 1074–1075 [petty theft charge was properly joined with unrelated murder, robbery,

and vehicle-taking charges because the petty theft, robbery, and vehicle-taking charges

involved ―the common characteristic of the wrongful taking of another‘s property‖];

People v. Mendoza (2000) 24 Cal.4th 130, 160 [crimes were connected in their

commission when committed in close timeframe of three days and many of the crimes

involved the felonious intent to obtain property].) Contrary to Romero‘s contention that

the ―tenor‖ of the Magnolia Center burglary was vandalism, not theft, defendants were

charged with burglary premised in part on entry with an intent to steal. Moreover, the

evidence demonstrated defendants made a concerted but unsuccessful effort to break into

the Magnolia Center store safe and stole other items from the store. Neither the

circumstance that defendants also committed vandalism nor the minimal worth of the

objects taken obviated their intent to steal.

Nor did defendants move to sever the Magnolia Center burglary and vandalism

charges from the remaining counts, or Romero move to sever the charge of receiving

stolen property from the remaining charges against him. The trial court has ―no statutory

duty to order severance on its own motion.‖ (People v. Rogers (2006) 39 Cal.4th 826,

851.) Defendants‘ claims that the trial court abused its discretion in denying severance

are therefore also forfeited. (People v. Ramirez (2006) 39 Cal.4th 398, 439 [―defendant is

limited on appeal to arguing that the trial court erred in failing to sever the charges‖ in the

manner ―requested at trial‖]; see People v. Tafoya (2007) 42 Cal.4th 147, 163 [―defendant

has forfeited this issue on appeal because he failed to assert this ground at the time his

severance motion was heard by the trial court‖].)

Even assuming the claim is preserved, no abuse of discretion is demonstrated. ―The

party seeking severance has the burden to establish a substantial danger of prejudice

requiring the charges to be separately tried. [Citation.] Refusal to sever may be an abuse

of discretion where (1) evidence of 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

29

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.

[Citation.] If evidence on each of the joined crimes would have been admissible in a

separate trial of the other crimes, then such cross-admissibility ordinarily dispels any

inference of prejudice.‖ (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281–282.)

Here, Self‘s counsel conceded at the hearing on the motion to sever the murder

counts from the remaining counts that the evidence in ―these cases‖ was ―cross-

admissible,‖ and Romero‘s counsel ―[j]oin[ed]‖ those remarks. On appeal, however,

defendants claim the evidence was not cross-admissible. ―We need not affirmatively

decide, however, whether the evidence would have been cross-admissible in separate

trials because, as defendant[s] acknowledge[], lack of cross-admissibility is not

dispositive of whether the court abused its discretion in denying severance.‖ (People v.

Myles (2012) 53 Cal.4th 1181, 1201, citing § 954.1.) Considering the remaining three

factors, we conclude no prejudice is demonstrated. Evidence of the murders, the burglary

and vandalism of Magnolia Center, and Romero‘s receipt of stolen property was strong.

Nor was evidence of the Magnolia Center crimes or Romero‘s receipt of stolen property

more inflammatory than evidence defendants had callously murdered three young men,

and attempted to murder three other individuals. Moreover, ―[e]ven where the People

present capital charges, joinder is proper so long as evidence of each charge is so strong

that consolidation is unlikely to affect the verdict.‖ (People v. Ochoa (2001) 26 Cal.4th

398, 423.)

Self further contends joinder of the Magnolia Center crimes, in hindsight, produced

gross unfairness amounting to deprivation of a fair trial or a denial of due process at the

guilt phase because evidence of the details of the vandalism ―rais[ed] the possibility the

jury [would] be swayed by the evidence of defendant‘s bad character.‖ The evidence

30

Self murdered three individuals was strong and indeed is not challenged on appeal.

There is therefore no reasonable probability Self would not have been found guilty of

these murders had the jury not heard the evidence regarding the Magnolia Center crimes.

Likewise, and contrary to defendants‘ contention, joinder of the Magnolia Center

crimes, in hindsight, did not produce gross unfairness amounting to deprivation of a fair

trial or a denial of due process at the penalty phase. Given the brutal circumstances

underlying their three murder and three attempted murder convictions, and Self‘s

additional conviction for the attempted murder of Feltenberger, there is no reasonable

possibility that a different verdict would have resulted had the jury not heard evidence of

threatening graffiti and the stabbing of a sonogram photograph during the Magnolia

Center burglary and vandalism. To the extent Romero asserts a similar claim regarding

joinder of the receipt of stolen property charge, we have already concluded that even

assuming evidence of the details of the attack on Feltenberger were improperly admitted,

there is no reasonable possibility a different penalty verdict would have resulted absent

admission of this evidence. (See ante, at pp. 26–27.)

B. Guilt Phase Issues

1. Accomplice corroboration

The trial court instructed the jury that Jose Munoz was an accomplice as a matter of

law as to certain crimes, including the crimes against Kenneth Mills and Vicky Ewy

(counts V-VIII), and Knoefler (count XV), and ―his testimony [was] subject to the rule

requiring corroboration.‖9 (§ 1111; see ante, at pp. 3, 5.) Self contends Munoz‘s

9 The court instructed Self‘s jury:

―A defendant cannot be found guilty based upon the testimony of an accomplice

unless such testimony is corroborated by other evidence which tends to connect such

defendant with the commission of the offense. . . . To corroborate the testimony of an

accomplice there must be evidence of some act or fact related to the crime which, if

believed, by itself and without any aid, interpretation, or direction from the testimony of

the accomplice, tends to connect the defendant with the commission of the crime

31

testimony was not corroborated and therefore his convictions for the crimes against

Kenneth Mills, Ewy, and Knoefler must be reversed. He further contends the evidence

was insufficient to establish his guilt as an aider and abettor of the crimes against

Knoefler. We conclude Munoz‘s testimony was corroborated as to the crimes against

Kenneth Mills and Ewy, but not as to the robbery of Knoefler. We therefore reverse

Self‘s conviction and sentence for Knoefler‘s robbery.

Section 1111 provides in part: ―A conviction can not be had upon the testimony of

an accomplice unless it be corroborated by such other evidence as shall tend to connect

the defendant with the commission of the offense; and the corroboration is not sufficient

if it merely shows the commission of the offense or the circumstances thereof.‖ The

requirement that accomplice testimony be corroborated is an ― ‗exception[]‘ to the

substantial evidence‖ rule. (People v. Najera (2008) 43 Cal.4th 1132, 1137.) It is based

on the Legislature‘s determination that ― ‗because of the reliability questions posed by‘ ‖

accomplice testimony, such testimony ― ‗by itself is insufficient as a matter of law to

support a conviction.‘ ‖ (Ibid.; see People v. Cuevas (1995) 12 Cal.4th 252, 261.)

Section 1111 does not affect the admissibility of accomplice testimony but rather

charged. However, it is not necessary that the evidence of corroboration be sufficient in

itself to establish every element of the crime charged or that it corroborate every fact to

which the accomplice testifies. In determining whether an accomplice has been

corroborated, you must first assume the testimony of the accomplice has been removed

from the case. You must then determine whether there is any remaining evidence which

tends to connect the defendant with the commission of the crime. If there is not such

independent evidence that tends to connect the defendant with the commission of the

crime, the testimony of the accomplice is not corroborated. If there is such independent

evidence which you believe, then the testimony of the accomplice is corroborated. If the

crimes charged in the Information except Counts XI–XIV, XVI, XVII, and XX–XXIII

[were] committed by anyone, the witness Jose Munoz was an accomplice as a matter of

law and his testimony is subject to the rule requiring corroboration. The testimony of an

accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily

disregard such testimony, but you should give to it the weight to which you find it to be

entitled after examining it with care and caution and in the light of all the evidence in the

case.‖ (Italics added.)

32

―reflects a legislative determination of how accomplice testimony must be treated.‖

(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 434; see id. at pp. 453–454; People v.

Bowley (1963) 59 Cal.2d 855, 858.)

Thus, for the jury to rely on an accomplice‘s testimony about the circumstances of

an offense, it must find evidence that ― ‗without aid from the accomplice‘s testimony,

tend[s] to connect the defendant with the crime.‘ ‖ (People v. Abilez (2007) 41 Cal.4th

472, 505 (Abilez); see People v. Davis (2005) 36 Cal.4th 510, 543.) ―The entire conduct

of the parties, their relationship, acts, and conduct may be taken into consideration by the

trier of fact in determining the sufficiency of the corroboration.‖ (People v. Rissman

(1957) 154 Cal.App.2d 265, 278; see People v. Trujillo (1948) 32 Cal.2d 105, 111

(Trujillo) [―The prosecution is not required to single out an isolated fact which in itself,

unrelated to other proven facts, is considered to be sufficient corroboration‖].) The

evidence ―need not independently establish the identity of the victim‘s assailant‖ (Abilez,

at p. 506), nor corroborate every fact to which the accomplice testifies (Davis, at p. 543),

and ― ‗may be circumstantial or slight and entitled to little consideration when standing

alone‘ ‖ (Abilez, at p. 505). ―The trier of fact‘s determination on the issue of

corroboration is binding on the reviewing court unless the corroborating evidence should

not have been admitted or does not reasonably tend to connect the defendant with the

commission of the crime.‖ (People v. McDermott (2002) 28 Cal.4th 946, 986.)10

10 Although similarities between the circumstances of the crime—as evidenced

either by the physical evidence or a witness‘s testimony—and an accomplice‘s testimony

cannot be relied on under section 1111 to corroborate the accomplice‘s testimony, these

similarities nevertheless do play a role. Even after deciding an accomplice‘s testimony is

corroborated, the jury is instructed to view it with caution. Similarities between the

accomplice‘s account and the physical evidence or a victim‘s description of the crime

logically are considered in assessing that credibility.

33

a. Crimes against Kenneth Mills and Ewy

Kenneth Mills testified that on October 22, 1992, between 11:30 p.m. and midnight,

he and his girlfriend Vicky Ewy took a drive to look at the lightning. Mills was driving.

As they drove down Moreno Beach Drive, a dark grey or blue hatchback coming in the

opposite direction made a U-turn and began to drive in front of them. At the next stop

sign the cars were next to each other, and the other car turned on its high beams and

followed the victims. As Mills started to turn right, he saw for ―no more than a second‖

the silhouette of a car next to him, and a ―person from the waist up out of the‖ front

―passenger window pointing a gun at me.‖ The gun fired, hitting Mills in the face, and

Mills sped away. He could not see out of his right eye and the vision in his left eye was

blurry. The assailants continued to chase them until Mills turned onto a golf cart path

near three model homes, one of which had all its lights on. Mills permanently lost vision

in his right eye. A bullet hole was found in the top of the driver‘s window of Ewy‘s car

and another hole near the bottom of the passenger window. Twenty-gauge plastic

shotgun wadding was found on the passenger side floor. Shotgun pellets, too damaged

for their size to be determined, were found in the passenger door.

Munoz testified that on or about the night of October 22, 1992, he was riding with

defendants in Romero‘s girlfriend Sonia Alvarez‘s Dodge Colt in an isolated area past

Moreno Valley and near Lake Perris. Romero was driving, Munoz was in the passenger

seat, and Self was in the backseat. They had Self‘s sawed-off shotgun and a ―single shot‖

rifle and were ―going out stealing.‖ They saw Ewy‘s red car, which Munoz identified at

trial, and turned around. They pulled up alongside the car at a stop sign, and Munoz ―was

ready to get out . . . [and] carjack them.‖ But Romero said, ―Shoot ‘em,‖ and Self

climbed out of the backseat window on the driver‘s side and fired the shotgun across the

top of the Colt at the victims. The bullet hit the victims‘ driver‘s window, and the

victims drove away.

34

Munoz‘s testimony was corroborated in part by the circumstance that 20-gauge

shotgun wadding was found in Ewy‘s car on the passenger side floor. Self admitted in

his statement to police that he had possessed a 20-gauge shotgun for about a month

before he shot Feltenberger on November 30, 1992, and victim Jerry Mills, Sr. identified

Self as the person holding a shotgun in that robbery. ―Possession of a gun similar to that

used in the commission of the crime has been deemed competent corroborative

evidence . . . .‖ (People v. Henderson (1949) 34 Cal.2d 340, 343; id at pp. 344, 346

[accomplice testimony corroborated in part by the circumstance the defendant purchased

a .410 shotgun the day before the attempted robbery in which such a shotgun was used];

see Trujillo, supra, 32 Cal.2d at pp. 111-112 [accomplice testimony corroborated in part

by evidence the bullet that killed the victim could have come from the gun the defendant

admitted was in his possession before the crime and which was found in his room after

his arrest].)

In his statement to police Self also admitted purchasing 20-gauge shells for the

shotgun about two weeks before the attack on Feltenberger, and appeared to say that

before this purchase he ―had shells to the gauge, this other guy, but those . . . weren‘t the

same ones, we got those mixed up.‖ Thus, although it is unclear, the jury could infer Self

not only had 20-gauge shells before he purchased the one used on Feltenberger, but that

he had used 20-gauge shells on another ―guy.‖

Munoz‘s testimony was further corroborated by the circumstance that about a month

later, on November 30, 1992, he and Self attacked and robbed Feltenberger in a manner

similar to that of the attack on Kenneth Mills and Ewy. (People v. Washington (1969)

71 Cal.2d 1061, 1093 [accomplice‘s testimony corroborated by the testimony of

numerous witnesses who identified the defendant as a participant in similarly perpetrated

robberies on the same night and in the same vicinity as the robbery to which the

accomplice testified, and a witness‘s identification of the car being driven away from the

scene of the robbery ―matched the description of the car given by other victims as the one

35

in which defendant was riding‖]; People v. Barillas (1996) 49 Cal.App.4th 1012, 1021

[proof the defendant ―committed three robberies or attempted robberies earlier that same

evening using the same white pickup and having the same coperpetrator‖ in part

corroborated accomplice testimony]; People v. Blackwell (1967) 257 Cal.App.2d 313,

320–321 [―similarity in the commission of crimes in a given locality is itself a

circumstance tending to corroborate the testimony of an accomplice‖]; People v.

Comstock (1956) 147 Cal.App.2d 287, 298 [―Proof that a defendant committed other

recent and similar offenses tending to show a consistent plan or method of misconduct‖

may corroborate accomplice testimony].) Here, in both the attack on Kenneth Mills and

Ewy and the attack on Feltenberger, the victims were driving in isolated areas late at

night when a car suddenly appeared and drove beside them before the shotgun attack.

Although Feltenberger pulled over before he was shot, he only did so because he mistook

the perpetrators‘ car for that of his newspaper carrier; indeed, Self said in his statement to

police, Munoz ―saw [Feltenberger] and tried to cut him off.‖ Feltenberger identified Self

as the person who shot him with a shotgun, and Self admitted to police he was with

Munoz that night and wounded Feltenberger with his 20-gauge shotgun.

In sum, Munoz‘s testimony was corroborated as to the crimes against Kenneth Mills

and Vicky Ewy.

b. Robbery of Knoefler

Self contends no evidence corroborated Munoz‘s testimony that Self was ―even in

the car or otherwise present at the scene‖ of Knoefler‘s robbery. We agree.

Knoefler testified that on November 20, 1992, about 3:30 p.m., he was tending

beehives at Markham Street and Washington Street in Riverside County. Parked nearby

was his 1987 pickup truck. A man approached Knoefler, struck up a conversation about

the bees, and walked around the bee yard. Knoefler testified he ―seemed to be [a] pretty

nice guy.‖ The man then brandished what appeared to be a sawed-off shotgun and

36

demanded the keys to Knoefler‘s truck. Knoefler gave him the keys. Another man

wearing a ski mask appeared. The first man said he needed some money for gas, and

Knoefler handed him about $50. The men left in the truck.

Munoz testified that during the daytime on or about November 20, 1992, he was

riding in Alvarez‘s Colt with defendants and Chavez. They were ―going to go steal,‖ and

were carrying Self‘s 20-gauge shotgun and perhaps another weapon. They noticed the

beekeeper, and decided to send Romero, carrying Self‘s shotgun, to see what valuables

the man had. After a few minutes, Munoz, wearing a mask, went to see what ―was taking

him so long‖ and hid when he heard Romero and the beekeeper talking. Romero told the

―old man‖ he needed his truck, and the man said, ―I was wondering why you were being

so nice to me.‖ Munoz appeared and Romero told the man ―I‘m going to need gas

money,‖ and the man offered Romero $25. Romero said he wanted all of it, and the man

gave him about $75. Munoz and Romero then left in Knoefler‘s truck and drove back to

the Colt. Self and Chavez, in the Colt, followed Romero and Munoz to an open field.

Romero and Munoz pushed the truck down an embankment, then got into the Colt and

left the area.

Although a shotgun was used in the robbery, and Self admitted in his statement to

police that he had possessed a shotgun for about a month before he shot Feltenberger on

November 30, 1992, there is no dispute Romero, not Self, was holding the shotgun when

Knoefler was robbed. Thus, this circumstance does not corroborate Munoz‘s testimony

that Self was present at the robbery. (See People v. Robinson (1964) 61 Cal.2d 373, 379,

398 [the defendant‘s fingerprints on a car associated with the murder did not connect the

defendant to the murder given both the defendant and the car‘s recent owner were

frequent visitors to the defendant‘s cousin‘s apartment and there was no evidence as to

when the fingerprints were left on the car].)

37

In her brief the Attorney General asserts Munoz‘s testimony is ―largely corroborated

by Knoefler‘s testimony; specifically, that Romero, armed with a shotgun, and Munoz,

arriving a bit later, robbed him of his cash and fled in his truck.‖ We disagree.

As noted above, section 1111 provides that an accomplice‘s testimony is not

corroborated by evidence that ―merely shows the commission of the offense or the

circumstances thereof.‖ In other words, an accomplice‘s testimony is not corroborated by

the circumstance that the testimony is consistent with the victim‘s description of the

crime or physical evidence from the crime scene. Such consistency and knowledge of the

details of the crime simply proves the accomplice was at the crime scene, something the

accomplice by definition admits. Rather, under section 1111, the corroboration must

connect the defendant to the crime independent of the accomplice‘s testimony.

As originally enacted in 1872, section 1111 provided: ―A conviction cannot be had

on the testimony of an accomplice, unless he is corroborated by other evidence which in

itself, and without the aid of the testimony of the accomplice, tends to connect the

defendant with the commission of the offense; and the corroboration is not sufficient, if it

merely shows the commission of the offense, or the circumstances thereof.‖ (Ann. Pen.

Code (1872) p. 390.) A note following section 1111 in the annotated Penal Code cites

and quotes from People v. Ames (1870) 39 Cal. 403. In Ames, the robbers were disguised

and used numbers during the robbery to refer to one another. (Id. at pp. 403–404) At one

point a robber was referred to as ―Charley‖ and the speaker immediately substituted the

term ―Number Three.‖ (Ibid.) One of the robbers testified at trial that the defendant

Charles Ames was known as ―Charley,‖ and during the robbery was designated ―Number

Three.‖ (Id. at p. 404.) This court reversed the judgment against the defendant, stating:

―[T]he corroborating evidence must, of itself, and without the aid of the testimony of the

accomplice, tend, in some degree, to connect the defendant with the commission of the

offense. It need not, of course, be sufficient to establish his guilt; for, in that event, the

testimony of the accomplice would not be needed. But it must tend, in some slight

38

degree at least, to implicate the defendant. . . . [A]side from the testimony of the

accomplice, and laying that entirely out of view, there was no evidence whatever in this

case ‗tending to connect the defendant with the commission of the offense.‘ The fact that

one of the robbers was addressed as ‗Charley,‘ and again as ‗Number Three,‘ and that

they designated each other by numbers, no more tends, of itself, to connect the defendant

with the crime than it would . . . any one else.‖ (Id. at pp. 404–405.)

In 1911, the statute was revised, as relevant here, to its present form (except for the

substitution in 1915 of ―it‖ for ―he‖ in the first clause). (Stats. 1911, ch. 292, § 1, p. 484.)

This court subsequently held that the 1911 amendment did not change the meaning of the

statute. (People v. Robbins (1915) 171 Cal. 466, 473–474.) Our cases continue to refer

to the requirement that the corroborating evidence ― ‗must, without aid from the

accomplice‘s testimony, tend to connect the defendant with the crime‘ ‖ (Abilez, supra,

41 Cal.4th at p. 505), and Self‘s jury here was so instructed.11 (See ante, p. 31, fn. 9.)

We conclude Munoz‘s testimony that Self robbed Knoefler was not corroborated.

Reversing this conviction does not affect the penalty judgment because, given the nature

of Self‘s additional crimes, there is no reasonable possibility the penalty judgment would

have been different had he not been convicted of Knoefler‘s robbery. Given that we

reverse Self‘s conviction for the Knoefler robbery, we need not address Self‘s further

claim that no substantial evidence supports his conviction for this offense under a theory

of aiding and abetting.

11 In People v. Miranda (1987) 44 Cal.3d 57, 100, this court stated a witness‘s

description of the events that led to a stabbing closely matched the accomplice‘s version

of events, and this ―evidence was enough to connect defendant with the killing and

therefore to support the credibility‖ of the accomplice. In Miranda, however, in addition

to the similarity in detail between the witness‘s and the accomplice‘s accounts, the

witness observed the defendant hold a knife to the victim‘s throat and then follow the

victim down the street. (Id. at p. 93.) Such evidence independently linked the defendant

to the stabbing.

39

2. Evidence of Romero’s attempted escape

Defendant Romero contends that the trial court erred in admitting escape evidence

because it amounted to no more than planning and did not constitute an attempt. We

disagree.

Before trial the prosecutor moved to admit escape evidence at the guilt phase.

Romero unsuccessfully opposed the motion on the ground that it was unduly prejudicial

under Evidence Code section 352.12

― ‗Evidence of a planned escape permits an inference of consciousness of guilt, even

if the escape was not actually attempted.‘ ‖ (People v. Box (2000) 23 Cal.4th 1153,

1205.) Moreover, here there was substantial evidence of an attempted escape. Although

the terms ―escape‖ and ―attempted escape‖ are ―not statutorily defined, case law has

defined ‗escape‘ as the unauthorized or ‗ ―unlawful departure of a prisoner from the

limits of his custody.‖ ‘ [Citations.] ‗The crime is completed when the prisoner wilfully

leaves the prison camp, without authorization . . . .‘ ‖ (People v. Bailey (2012) 54 Cal.4th

740, 748–749 (Bailey).) Attempted escape requires ―a specific intent to escape‖ and ― ‗a

direct, unequivocal act to effect that purpose.‘ ‖ (Id. at p. 749.)

Here, Romero‘s intent to escape was demonstrated by his statement to fellow inmate

Dicken that he was planning to escape by taking the nighttime deputy hostage,

threatening him with a shank, and leaving the jail. Romero also committed acts to

effectuate this intent when he obtained hacksaw blades, completely severed the bars to

his cell, creating a hole large enough to escape, and armed himself. (See People v.

Mason (1991) 52 Cal.3d 909, 954–955 (Mason) [noting the defendant attempted to

escape once by sawing loose on two sides the metal screen that covered his cell window

12 Evidence Code section 352 provides: ―The court in its discretion may exclude

evidence if its probative value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b) create substantial danger

of undue prejudice, of confusing the issues, or of misleading the jury.‖

40

and again by making a three- by three-inch cut in the replacement screen]; compare

People v. Lancaster (2007) 41 Cal.4th 50, 91, 94 (Lancaster) [mere possession of a

handcuff key ―was not sufficient to establish an escape attempt‖].) As the Attorney

General observes, Romero ―did everything but actually escape from his cell.‖

Romero contends that this evidence shows he only prepared to escape but did not

attempt to escape because ―he had not started going anywhere.‖ We have previously

rejected this view. ― ‗The introduction into the concept of attempt to escape of a

requirement of intentionally doing an act, the direct, natural and probable consequence of

which, if successfully completed, would be an escape, too narrowly limits the application

of the statute. Such an act could be to pass part way through a door, window or other

opening to the outside of the place of confinement before falling back, being pulled back

or disabled. [¶] . . . [¶] The Legislature has not proscribed the doing of any single

defined act as an attempt to escape. Many acts, including some non-criminal in

themselves, might be conducive toward carrying out an intention to escape, and the scope

of the statute proscribing such an attempt should not be limited to specifically designated

acts.‘ [Citation.] Thus, the heightened mental state required for an attempt to escape

serves to ‗separate[] criminality itself from otherwise innocuous behavior.‘ (United

States v. Bailey [(1980)] 444 U.S. [394,] 405.)‖ (Bailey, supra, 54 Cal.4th at pp. 750–

751.)

3. Asserted prosecutorial misconduct

Self contends the prosecutor repeatedly vouched for the credibility of Jose Munoz

during his opening statement and closing argument. Not so.

Self did not object to the prosecutor‘s statements or seek an admonition, and no

exception to the general rule requiring an objection and request for admonition is

applicable. The claim is therefore forfeited. (Samayoa, supra, 15 Cal.4th at p. 841.)

41

It is also meritless. ―A prosecutor is prohibited from vouching for the credibility of

witnesses or otherwise bolstering the veracity of their testimony by referring to evidence

outside the record.‖ (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye).) ―However, so

long as a prosecutor‘s assurances regarding the apparent honesty or reliability of

prosecution witnesses are based on the ‗facts of [the] record and the inferences

reasonably drawn therefrom, rather than any purported personal knowledge or belief,‘

[his] comments cannot be characterized as improper vouching.‖ (Ibid.) Here, the

prosecutor simply advanced the view Munoz was credible based on the evidence, which

is permissible.

Self further asserts counsel was ineffective in failing to object to the prosecutor‘s

statements. For example, Self contends effective counsel would have objected when the

prosecutor improperly referred to Munoz‘s statement to police, thus implying that

evidence the jury had not seen established Munoz‘s veracity. Contrary to Self‘s

implication, the jury heard nearly all of Munoz‘s statement, and the remainder was

described by the interviewing officer. There was no misconduct, hence there was no

valid basis for objection.

4. Asserted instructional error

a. Accomplice instructions

Self contends the trial court erred in failing to instruct the jury sua sponte it could

not aggregate evidence or incidents to corroborate the accomplice testimony of Munoz

and to determine guilt. There was no error.

The trial court instructed the jury in the language of CALJIC No. 17.02: ―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 of the crimes charged. Your finding as to

each count must be stated in a separate verdict.‖ Self contends the court, sua sponte,

should have modified this instruction to tell the jury it ―must decide each count separately

42

on the law and the evidence applicable to it, including the evidence required to

corroborate the accomplice‘s testimony.‖

Self has forfeited this claim by failing to request a modification of CALJIC

No. 17.02. (People v. Geier (2007) 41 Cal.4th 555, 579 [the defendant‘s failure ―even to

propose a modification of CALJIC No. 17.02, or to propose an additional instruction‖

forfeited the instructional error claim].)

The claim also lacks merit. The instructions given informed the jury of the offenses

for which Munoz was an accomplice as a matter of law, and that his testimony as to

certain charged offenses must be ―corroborated by other evidence which tends to connect

such defendant with the commission of the offense.‖ (Italics added.) They further

provided, ―To corroborate the testimony of an accomplice there must be evidence of

some act or fact related to the crime which, if believed, by itself and without any aid,

interpretation, or direction from the testimony of the accomplice, tends to connect the

defendant with the commission of the crime charged.‖ (Italics added.) This language

informed the jury that evidence corroborating Munoz‘s testimony was required for each

count as to which Munoz was an accomplice as a matter of law. Contrary to Self‘s

assertion, there is no reasonable likelihood the jury would have understood the

instructions to mean it could ―use[] Feltenberger‘s corroborating testimony as to counts

XVIII and XIX to find the requisite corroboration on unrelated counts V through VII,‖ or

treat ―Munoz‘s accomplice testimony as to counts I and II‖ as ―corroborated by the

victim‘s testimony in the unrelated . . . Meredith robbery (count IV) or by‖ Rankin‘s

testimony regarding the shooting in counts IX and X.

Self further contends that in the absence of his proposed instruction the jury likely

would ―treat evidence of [Self‘s] involvement on some counts as evidence of his guilt on

other, unrelated counts charged against him.‖ To the extent Self claims the jury could not

consider evidence on one count to prove his guilt on other counts we reject the claim.

(See People v. Lynch (2010) 50 Cal.4th 693, 760–761 [trial court properly refused to give

43

proposed instruction that each count must be proven independently of the other counts

because the evidence was cross-admissible and the jury was instructed in the language of

CALJIC No. 17.02].)

b. CALJIC No. 3.02

Romero contends instruction in the language of CALJIC No. 3.02 creates an

unconstitutional mandatory presumption that aiding and abetting a robbery in which

murder was a natural and probable consequence is equivalent to aiding and abetting

murder, and thus ―effectively require[s]‖ the jury to presume ―intent to encourage or

facilitate a murder.‖13 We need not address this issue because the jury here was also

instructed on felony murder based on robbery and found true robbery-murder special-

circumstance allegations as to all three murders.14 We can deduce from these special

13 The court instructed the jury in the language of CALJIC No. 3.02: ―One who

aid[s] and abets another in the commission of a crime is not only guilty of that crime but

is also guilty of any other crime committed by the principal which is a natural and

probable consequence of the crime[] originally aided and abetted. In order to find the

defendant guilty of the crime of murder . . . as an aider and abettor, you must be satisfied

beyond a reasonable doubt: One, the crime of robbery or attempt[ed] robbery was

committed; Two, the defendant aided and abetted such crime; Three, a co-principal in

such crime committed the crime of murder, and, Four, the crime of murder was a natural

and probable consequence of the commission of the crime of robbery or attempt[ed]

robbery.‖

14 The trial court instructed the jury: ―The unlawful killing of a human being,

whether intentional, unintentional, or accidental, which occurs during the commission or

attempted commission of the crime as a direct causal result of robbery is murder of the

first degree when the perpetrator had the specific intent to commit such crime. The

specific intent to commit robbery and the commission or attempted commission of such

crime must be proved beyond a reasonable doubt. If a human being is killed by any one

of several persons engaged in the commission or attempted commission of the crime of

robbery, all persons who either directly and actively commit the act constituting such

crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and

with the intent or purpose of committing, encouraging, or facilitating the commission of

the offense aid, promote, encourage, or instigate by act or advice its commission, are

guilty of murder in the first degree whether the killing is intentional, unintentional, or

accidental.‖

44

circumstance findings that the jury necessarily found Romero guilty of first degree

felony-murder under section 189. (People v. Hovarter (2008) 44 Cal.4th 983, 1019.)

Under the felony-murder rule those who commit enumerated felonies are ― ‗strictly

responsible for any killing committed by a cofelon, whether intentional, negligent, or

accidental, during the perpetration or attempted perpetration of the felony.‘ ‖ (People v.

Gonzales (2011) 51 Cal.4th 894, 943.) Thus, there was no need for the jury to find, as

Romero contends, an ―intent to encourage or facilitate a murder.‖

The felony-murder rule operates independently from an ―aider and abettor‘s liability

for murder under the natural and probable consequences doctrine.‖ (People v. Chiu

(2014) 59 Cal.4th 155, 166.) To the extent the jury understood it also needed to find ―the

crime of murder was a natural and probable consequence of the commission of the crime

of robbery or attempt[ed] robbery‖ because it was instructed in the language of CALJIC

No. 3.02, Romero could have only benefitted from this ambiguity.

c. Reasonable doubt instruction

Defendants contend instruction in the language of CALJIC No. 2.90 does not

adequately define reasonable doubt. Self additionally contends such instruction in

conjunction with other jury instructions impermissibly undermined and diluted the

prosecutor‘s burden of proof of guilt beyond a reasonable doubt.15 We disagree.

15 Both juries received the standard instruction on reasonable doubt. The court

instructed Romero‘s jury: ―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. This 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.‖ A virtually identical instruction was given

to Self‘s jury.

45

The court‘s instruction properly defined the prosecution‘s burden of proof. (People

v. Brown (2004) 33 Cal.4th 382, 391–392 [upholding instruction substantially similar to

that given here] (Brown); see Victor v. Nebraska (1994) 511 U.S. 1, 14–15 [―An

instruction cast in terms of an abiding conviction as to guilt, without reference to moral

certainty, correctly states the government‘s burden of proof‖].) Thus, contrary to Self‘s

assertion, there is no reasonable likelihood the jurors understood the instruction to mean

―they must articulate reason and logic for their doubt . . . before such doubt[] could be

considered sufficient to acquit.‖ (See People v. Capistrano (2014) 59 Cal.4th 830, 879

(Capistrano).) Nor, as he also asserts, does the instruction erroneously inform the jury

that reasonable doubt is ―not a mere possible doubt‖ (Capistrano, at p. 880) or err in the

use of the term ―until‖ instead of ―unless‖ when it provides ― ‗[a] defendant in a criminal

action is presumed to be innocent until the contrary is proved‘ ‖ (People v. Lucas (2014)

60 Cal.4th 153, 295–296 (Lucas); People v. Thomas (2012) 53 Cal.4th 771, 812).

Contrary to his assertion, CALJIC No. 2.90 is not wanting because it does not expressly

state ―that the accused need not present any evidence for the jury to have a reasonable

doubt,‖ given there is no reasonable likelihood the jury understood the instruction to

mean Self had the burden of producing sufficient evidence to raise a reasonable doubt of

his guilt. (Frye, supra, 18 Cal.4th at p. 974.) Further, and contrary to Romero‘s

assertion, changes in the instruction after the crime and before trial deleting reference to

moral evidence and moral certainty do not implicate due process and ex post facto

concerns. (Brown, at pp. 390–392.)

―[W]e have previously considered and rejected the argument‖ that instruction in the

language of CALJIC No. 2.90 in conjunction with other instructions ―improperly

dilute[s] the constitutional requirement that guilt be proven beyond a reasonable doubt.‖

(People v. Vines (2011) 51 Cal.4th 830, 885 (Vines) [rejecting challenge to CALJIC

Nos. 2.01, 2.21.2, 2.27]; see People v. Sattiewhite (2014) 59 Cal.4th 446, 479 [rejecting

challenge to CALJIC No. 1.00]; People v. Solomon (2010) 49 Cal.4th 792, 826–828

46

[rejecting challenges to CALJIC Nos. 2.01, 2.11, 2.21.2]; People v. Roberts (1992)

2 Cal.4th 271, 314–315 [no possible prejudice in giving over the defendant‘s objection

CALJIC Nos. 2.60 and 2.61 concerning a defendant‘s right not to testify].) Self

―advances no persuasive reason to reconsider our prior rejection of challenges to these

instructions, and we decline to do so.‖ (Vines, at p. 885.)

d. Error in allowing jury to make two special circumstance findings as

to each murder count

Romero contends the trial court erred in instructing the jury to make two multiple-

murder special-circumstance findings as to each count of murder. (§ 190.2, subd. (a)(3).)

The Attorney General concedes the error. We agree, and vacate five duplicative

multiple-murder special-circumstance findings for each defendant. (People v. Hardy

(1992) 2 Cal.4th 86, 191, 216.) Contrary to Romero‘s assertion, he was not prejudiced by

the duplicative findings. Rather, we apply the settled rule that ―the jury‘s consideration

of duplicative multiple-murder special circumstances is harmless where, as here, the jury

knows the number of murders on which the special circumstances are based.‖ (People v.

Marshall (1996) 13 Cal.4th 799, 855.)

5. Validity of section 190.2, subdivision (d)

Romero contends that section 190.2, subdivision (d), enacted in 1990 by Proposition

115, is invalid because Proposition 114, also on the 1990 ballot, received more votes.

We have previously rejected this argument and Romero cites no persuasive reason to

revisit our conclusion. (People v. Morgan (2007) 42 Cal.4th 593, 621–622; Yoshisato v.

Superior Court (1992) 2 Cal.4th 978, 989–992.)

47

C. Penalty Phase Issues

1. Assertedly biased jurors

Self contends that Jurors Nos. 1, 2, 4, 6, 8, 9, 11, and 1416 were ―strongly in favor of

the death penalty and should have been dismissed for cause‖ because they were actually

biased against him on the penalty issue. The claim is forfeited because Self challenged

only one of these jurors (Juror No. 8) for cause, and did not use an available peremptory

challenge to remove that juror.17 (People v. Nunez and Satele (2013) 57 Cal.4th 1, 25–26

[failure to use a peremptory challenge to remove a prospective juror forfeits a claim the

trial court erred in denying a challenge for cause against the prospective juror]; People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 48 (Coffman and Marlow) [failure to

challenge for cause purportedly biased jurors ―forfeit[s] any appellate claim of error in

the seating of those jurors‖].) Nor did Self object to the jury as finally constituted.

(People v. Souza (2012) 54 Cal.4th 90, 130; People v. Virgil (2011) 51 Cal.4th 1210,

1239.)

In an appropriate case, a forfeited claim of juror bias can be asserted on appeal

under the rubric of ineffective assistance of counsel. Self further contends trial counsel

was ineffective in failing to challenge for cause and then excuse by peremptory challenge

Juror Nos. 1, 2, 4, 6, 9, 11, and 14. ―[A] prospective juror may be challenged for cause

based upon his or her views regarding capital punishment only if those views would

‗ ― ‗prevent or substantially impair‘ ‖ the performance of the juror‘s duties as defined by

the court‘s instructions and the juror‘s oath.‘ [Citation.] A prospective juror who would

be unable conscientiously to consider all of the sentencing alternatives, including, when

appropriate, the death penalty, is properly subject to excusal for cause. [Citation.] Our

16 Juror No. 14, originally an alternate, served on the jury during both the guilt and

penalty phases.

17 We disapprove any language to the contrary in People v. Whalen (2013) 56

Cal.4th 1, 51.

48

review of the record confirms that none of the [eight] jurors who defendant asserts were

biased would have been properly excused under this standard, as each expressed a

willingness to consider all the evidence presented before reaching a decision as to

penalty. Counsel therefore did not perform deficiently in not challenging those jurors for

cause.‖ (Coffman and Marlow, supra, 34 Cal.4th at p. 48.)

Nor on this record has Self demonstrated counsel was ineffective in not removing

these jurors by peremptory challenge. (People v. Montiel (1993) 5 Cal.4th 877, 911

[―Because the use of peremptory challenges is inherently subjective and intuitive, an

appellate record will rarely disclose reversible incompetence in this process‖].)

2. Evidentiary issues

a. Victim impact evidence

Before the penalty phase began, Self, joined by Romero, unsuccessfully moved to

exclude all victim impact evidence. Self here contends that the trial court erroneously

admitted victim impact evidence, and that the prosecutor committed misconduct by

offering and then arguing this evidence. Both defendants challenge the quantity and

content of the evidence. We reject the claims.

―In a capital trial, evidence showing the direct impact of the defendant‘s acts on the

victims‘ friends and family is not barred by the Eighth or Fourteenth Amendments to the

federal Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827.) Under

California law, victim impact evidence is admissible at the penalty phase under section

190.3, factor (a), as a circumstance of the crime, provided the evidence is not so

inflammatory as to elicit from the jury an irrational or emotional response untethered to

the facts of the case.‖ (People v. Pollock (2004) 32 Cal.4th 1153, 1180 (Pollock).) We

conclude neither the federal nor the state standard was violated here.

Defendants contend that the victim impact evidence was ―excessive, improper,

inflammatory, and highly prejudicial.‖ Defendants did not object at any time during the

49

testimony, and this claim is therefore forfeited. (People v. Wilson (2005) 36 Cal.4th 309,

357 (Wilson) [failure to object to victim impact testimony as exceeding the scope of

§ 190.3, factor (a) forfeits the claim].) Self‘s motion in limine sought to broadly exclude

all victim impact evidence on constitutional grounds, and did not specifically object to

the admission of any particular witness‘s testimony anticipated in this case. (See

generally People v. Morris (1991) 53 Cal.3d 152, 189–190.) Thus denial of the motion in

limine did not make objection during testimony redundant, but rather it was incumbent on

defendants to object if they believed the testimony actually presented was ―excessive,

improper, inflammatory, and highly prejudicial.‖ (See id. at p. 190.)

The claim is also meritless. A total of six witnesses were presented from the

families and friends of the three murder victims. (See ante, at pp. 10-11.) The testimony

took place on a single day before both juries and spans 96 pages of the reporter‘s

transcript. Twelve photographs of Jose Aragon or aspects of his life, nine of Joey Mans,

and seven of Timothy Jones, were admitted. The evidence can scarcely be characterized

as ―excessive.‖

Moreover, the content of the testimony was neither inflammatory nor unduly

prejudicial. ― ‗[U]nless it invites a purely irrational response, evidence of the effect of a

capital murder on the loved ones of the victim and the community is relevant and

admissible under section 190.3, factor (a) as a circumstance of the crime. [Citation.] The

federal Constitution bars victim impact evidence only if it is so unduly prejudicial as to

render the trial fundamentally unfair.‘ ‖ (Vines, supra, 51 Cal.4th at p. 889.) Here, the

testimony fell well within these bounds and was similar to that we have previously

upheld. (See People v. Murtishaw (2011) 51 Cal.4th 574, 579, 581–582, 595; People v.

Verdugo (2010) 50 Cal.4th 263, 296–298; People v. Dykes (2009) 46 Cal.4th 731, 779–

783 (Dykes); Wilson, supra, 36 Cal.4th at p. 357.) Contrary to Self‘s contention, that the

witnesses described events that occurred before or after the murders was proper. (Brown,

supra, 33 Cal.4th at pp. 397–398.) Their recollections ―simply served to explain why

50

they continued to be affected by [the] loss and to show the ‗victim[s‘] ―uniqueness as . . .

individual human being[s].‖ ‘ ‖ (Id. at p. 398, quoting Payne v. Tennessee, supra, 501

U.S. at p. 823.)

Self relies on comments made by the trial court during record correction six years

after trial. While addressing requests to settle the record as to gestures by attorneys or

witnesses during the five-month trial the court commented it did not think it was

―possible or realistic for us to go that far back in time to remember what a witness was

pointing at or what type of gesture they were making or what type of demeanor they were

demonstrating.‖ The court stated that although it had some independent recollection of

events during trial they were ―few and far between.‖ It did recall certain events,

including when the victim impact testimony was presented, saying it was a ―very painful

and agonizing [day] for everyone who was in the courtroom,‖ ―there wasn‘t a dry eye in

the courtroom,‖ and ―[t]hat‘s the day that I will always have with me.‖ These comments

do not demonstrate that the victim impact evidence was unduly prejudicial or that ―the

court‘s impartiality was undermined‖ by the evidence. Indeed, trial courts must be aware

of juror and spectator reactions as part of their diligent trial management, and we

presume they are capable of setting this information aside when rendering their rulings.

(See People v. Chatman (2006) 38 Cal.4th 344, 365.) Moreover, the callous and

unprovoked nature of the murders understandably triggered an emotional reaction in the

persons who testified and those observing in the courtroom, but this did not render the

testimony inflammatory or unduly prejudicial. (People v. Jurado (2006) 38 Cal.4th 72,

132, 134 [―The record does not support defendant‘s suggestion that after hearing the

victim impact testimony the jurors were so overwhelmed by emotion that they were

unable to make a rational determination of penalty,‖ where ―at least two of the jurors had

been in tears‖ at the break and ―defendant had been ‗crying and sobbing‘ as well‖];

Wilson, supra, 36 Cal.4th at p. 357 [approving admission of evidence of victim‘s

― ‗understandable human reactions‘ ‖]; see generally People v. Zamudio (2008) 43

51

Cal.4th 327, 368 (Zamudio) [―Although jurors must never be influenced by passion or

prejudice,‖ ―the requested instruction is misleading to the extent it indicates that emotions

may play no part in a juror‘s decision to opt for the death penalty‖].)

Self also contends that ― ‗expansive‘ ‖ victim impact evidence ― ‗will inevitably

make way for racial discrimination to operate in the capital sentencing jury‘s life or death

decision.‘ ‖ Relying on Turner v. Murray (1986) 476 U.S. 28, he further asserts racial

prejudice will remain undetected, and that this ―danger is particularly acute where the

jury, as here, is virtually all Caucasian—as were two of the victims—and [Self] is

Hispanic.‖ In Turner v. Murray, which involved ―a black man sentenced to death for the

murder of a white storekeeper,‖ the high court held the trial court erred in failing to allow

questioning of prospective jurors on the issue of racial prejudice. (Turner, at pp. 29, 33,

36–37.) Self fails to demonstrate how Turner bears on the issue of admission of victim

impact evidence, or otherwise supports his assertion that the victim impact evidence here

―invited both arbitrary or invidious comparisons and, especially in cross-racial cases like

this one, arbitrary comparisons tainted by racial bias against Hispanics.‖

Self further contends that victim impact evidence should be limited to

(1) ―testimony from a single witness,‖ (2) testimony that ―describes the effect of the

murder on a family member who was present at the scene during or immediately after the

crime,‖ and (3) ―consequences that were known or reasonably apparent to the defendant

at the time he committed the crime or were properly introduced to prove the charges at

the guilt phase of the trial.‖ We have previously rejected all of these contentions, and

Self cites no persuasive reason to revisit our conclusion. (See, e.g., People v. Trinh

(2014) 59 Cal.4th 216, 245–246; Pollock, supra, 32 Cal.4th at p. 1183.)

Self further contends that the prosecutor committed misconduct by offering this

evidence and then relying on it during closing argument. We have concluded this

evidence was properly admitted. Hence the prosecutor did not commit misconduct by

relying on it during closing argument.

52

b. Evidence of assault on Tyreid Hodges, attempted escape, and shank

possession

Defendant Romero contends that the trial court erroneously admitted evidence of his

assault on Tyreid Hodges, attempted escape, and shank possession. (See ante, at pp. 8-9,

12-13.) The evidence was properly admitted.

(1) Hodges

Romero contends that ―[n]othing done to Hodges was a violent crime‖ within the

meaning of section 190.3, factor (b). Romero told Hodges that ―if he had his way about

it . . . he would . . . take [Hodges] out.‖ Romero squirted urine from a bottle on Hodges,

stepped on a carton of feces, splattering the contents on Hodges, and ―squished‖ a

shampoo bottle containing urine, causing it to hit Hodges. He also threw a hairbrush at

but missed Hodges. These actions were assaults and batteries and hence admissible

under section 190.3, factor (b). (People v. Banks (2014) 59 Cal.4th 1113, 1197–1198

[deputy‘s testimony about the ―defendant‘s assault upon him with a container filled with

urine and feces was admissible‖]; People v. Burgener (2003) 29 Cal.4th 833, 868 [each

instance when the defendant ―threw water, urine, scouring powder, bleach, and other

substances at correctional officers . . . constitute[d] a battery‖ and was admissible under

§ 190.3, factor (b)]; People v. Pinholster (1992) 1 Cal.4th 865, 960-961 [―throwing a cup

of urine in a person‘s face is a battery, since ‗[a]ny harmful or offensive touching

constitutes an unlawful use of force or violence‘ and thus a battery under section 243‖

and is admissible under § 190.3].)

(2) Attempted escape

Romero asserts that the jury was erroneously permitted to use evidence of his

attempted escape in aggravation at the penalty phase because it was merely a planned and

not an attempted escape. (See Lancaster, supra, 41 Cal.4th at p. 94 [mere preparation for

escape is insufficient under § 190.3].) Because we have previously concluded the

53

evidence here demonstrated an attempted escape (see ante, pp. 40–41), this contention

fails.

Romero further contends that the escape evidence did not demonstrate an express or

implied threat of force or violence under section 190.3, factor (b). He did not object on

this basis below, and the claim is therefore forfeited. It is also meritless. Although

evidence of attempted escape alone is not admissible under section 190.3, factor (b), here

the evidence indicated Romero not only planned to escape by taking the nighttime deputy

hostage and threatening him with a shank, he was also observed with a shank, and a

weapon was found in his cell. That is sufficient. (Mason, supra, 52 Cal.3d at pp. 954–

956 [escape evidence admissible under § 190.3, factor (b) when ―an escape from the

administrative segregation cell would almost certainly have involved defendant in a

confrontation with a guard‖].)

Romero further contends trial counsel was ineffective in failing to object to

evidence of the escape attempt at the guilt phase on the ground the evidence ―had no

legitimate use‖ at the penalty phase. The evidence was admissible; therefore, he

establishes no deficiency on counsel‘s part in failing to object on this basis.

Romero also contends that instruction in the language of CALJIC Nos. 6.00, 6.01,

and 6.02 ―fail[ed] to ensure that the jury understood that the purported escape attempt

could not be weighed as a circumstance in aggravation if it was only preparation.‖18 Not

18 The court instructed the jury: ―An attempt to commit a crime consists of two

elements, namely, a specific intent to commit the crime and a direct but ineffectual act

done towards its commission. In determining whether or not such an act was done, it is

necessary to distinguish between mere preparation, on the one hand, and the actual

commencement of the doing of the criminal deed, on the other. Mere preparation which

may . . . consist of planning the offense or of devising or obtaining or arranging the

means for its commission, is not sufficient to constitute an attempt. However, acts of a

person who intends to commit a crime will constitute an attempt where those acts clearly

indicate a certain, unambiguous intent to commit that specific crime. Such acts must be

an immediate step in the present execution of the criminal design, the progress of which

would be completed unless interrupted by some circumstance not intended in the original

54

so. The court instructed the jury mere preparation was ―not sufficient to constitute an

attempt,‖ and further required the jury—in order to find Romero had committed

attempted escape by force or violence—to find Romero‘s ―acts clearly indicate[d] a

certain, unambiguous intent to‖ escape and were ―an immediate step in the present

execution of the criminal design, the progress of which would be completed unless

interrupted by some circumstance not intended in the original design.‖ It is not clear

whether instruction in the language of CALJIC No. 6.00 is consistent with our recent

discussion of attempted escape in Bailey, supra, 54 Cal.4th 740, but to the extent the

court‘s instructions were too stringent, Romero could have only benefitted from the error.

(See id. at p. 749 [stating attempted escape requires ―a specific intent to escape‖ and ― ‗a

direct, unequivocal act to effect that purpose‘ ‖]; and see id. at p. 750 [noting ― ‗[t]he

introduction into the concept of attempt to escape of a requirement of intentionally doing

an act, the direct, natural and probable consequence of which, if successfully completed,

would be an escape, too narrowly limits the application of the [escape] statute‘ ‖].)

(3) Shank

Romero contends the trial court erred in admitting evidence he possessed shanks in

jail. Romero did not challenge the admission of this evidence below, and the claim is

therefore forfeited. It is also meritless. ― ‗It is settled that a defendant‘s knowing

possession of a potentially dangerous weapon in custody is admissible under [section

190.3,] factor (b). Such conduct is unlawful and involves an implied threat of violence

design. A person who has once committed acts which constitute an attempt to commit a

crime is liable for the crime of attempted escape by force or violence even though he does

not proceed further with the intent to commit the crime, either by reason of voluntarily

abandoning his purpose or because he was prevented or interfered with in completing the

crime. If a person intends to commit a crime but, before committing an act toward the

ultimate commission of the crime, freely and voluntarily abandons the original intent and

makes no effort to accomplish it, such person has not attempted to commit the crime.‖

55

even where there is no evidence defendant used or displayed it in a provocative or

threatening manner.‘ ‖ (People v. Smithey (1999) 20 Cal.4th 936, 1002.)

c. Exclusion of mitigating evidence

Romero contends the trial court erroneously excluded his mother Maria Self‘s

testimony that as a child she had been raped repeatedly by two of her brothers.

During Maria‘s direct testimony, she said her relationship with two of her brothers

was ―not good‖ because she ―was afraid of them.‖ When counsel asked why she was

afraid, the prosecutor‘s relevance objection was sustained. At sidebar, counsel said he

was eliciting testimony Maria had been raped by her brothers for seven years starting

when she was six years old. The court stated Maria‘s engaging in abusive behavior

toward her sons was relevant, but the reason why she was abusive was not relevant.

After hearing further argument, the court ruled such testimony was not relevant ―at this

point in time‖ because it did not ―relate to factors in mitigation for the defendants.‖ Even

if the evidence were relevant, the court found it ―highly prejudicial‖ because it would

confuse and mislead the jury, and therefore also excluded it under Evidence Code section

352. The court further stated that if on cross-examination it appeared the prosecutor

raised ―any issues that might open the door to her giving this testimony on redirect,‖ it

would reconsider its ruling. Counsel did not raise the issue after Maria‘s cross-

examination.

― ‗The Eighth and Fourteenth Amendments require that the sentencer in a capital

case not be precluded from considering any relevant mitigating evidence, that is,

evidence regarding ―any aspect of a defendant‘s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence less than

death.‖ ‘ [Citation.] ‗Nonetheless, the trial court still ― ‗determines relevancy in the first

instance and retains discretion to exclude evidence whose probative value is substantially

outweighed by the probability that its admission will create substantial danger of

56

confusing the issues or misleading the jury.‘ ‖ ‘ (People v. Williams (2006) 40 Cal.4th

287, 320; see Romano v. Oklahoma (1994) 512 U.S. 1, 12 [‗The Eighth Amendment does

not establish a federal code of evidence to supersede state evidentiary rules in capital

sentencing proceedings.‘]; Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 12 [‗Nothing in

this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence

not bearing on the defendant‘s character, prior record, or the circumstances of his

offense.‘].)‖ (People v. Farley (2009) 46 Cal.4th 1053, 1128.)

Here, evidence defendant Romero‘s mother had been raped as a child had no

bearing on his character, record, or the circumstances of the offense. The court therefore

did not abuse its discretion in excluding this evidence.

3. Asserted prosecutorial misconduct

Romero contends the prosecutor committed misconduct when he misled the court

about his intended use of Romero‘s statement to his girlfriend Stephanie Stinson, and

then used the statement to argue Romero‘s future dangerousness. There was no

misconduct.

As noted above, on June 12, 1994, Romero lured fellow Riverside jail inmate Olen

Thibedeau to his cell and then stabbed him in the stomach with a spear more than four

feet long. (See ante, p. 12.) Thibedeau was facing charges of child molestation and was

later convicted of these crimes. On February 8, 1995, Romero visited with Stephanie

Stinson and their conversation was recorded. Romero said: ―I don‘t like violence. I try

to avoid it. But when they stick a child molester next door to me [and] expect me not to

do something, I‘ll be his friend, talk to him real nice, bring him close to the door, and

then make him a little spear about this long, about this skinny, that‘s real hard and won‘t

bend. You put a pencil at the end of it and strips of wood. [¶] . . . [¶] Stick him in his

neck.‖

57

At the hearing on whether to admit Romero‘s statement to Stinson, the prosecutor

observed that on cross-examination the defense had ―made quite an effort to impugn . . .

Thibedeau‘s credibility.‖ The prosecutor contended that Romero‘s later statement to

Stinson was an admission that ―he did[] exactly what . . . Thibedeau said.‖ The trial court

admitted the statement to rehabilitate Thibedeau.

During closing argument, the prosecutor said Romero ―has shown in jail since his

arrest that he is not done hurting people, that he still wants to kill and rob and terrorize

and hurt.‖ He described Romero‘s attempted escape in which he planned to threaten a

guard with a shank, his possession of shanks in jail, the robbery and beatings of Medeiros

and Jutras, and the battery of Hodges with urine and feces. The prosecutor then said,

―And he tried to run a spear through . . . Thibedeau.‖ After describing the incident, the

prosecutor said: ―He is proud of it. Romero is proud of it. You heard him fondly

remembering this event on tape.‖ He played the tape of Romero‘s statement to Stinson,

and said: ―He is so proud. Mr. Romero gives you your verdict right there. You can‘t

expect him not to do something like this. He said it, ‗But when they stick a child

molester next door to me and not expect me to do something . . . .‘ He is telling you what

to expect from him. You don‘t need a crystal ball to know what to expect from Mr.

Romero in the future.‖ The prosecutor subsequently argued: ―Look at how he acted

when he was free. He murdered people. When he had everything to lose, he murdered

people. Look at how he acted in the jail when he had this trial pending and he had

something to lose. How is he going to act when he has nothing left to lose, when he has

got LWOP and they can‘t do anything else to him? It‘s an American Express card for

violence.‖ The prosecutor also noted that Romero would come into contact with ―nurses,

clerks, guards, counselors, [and] other inmates,‖ and said: ―[W]hat we know about him is

that he likes to hurt people. The best predictor of the future is the past. He has 30, 40, 50

years of victims ahead of him if he has an LWOP, if he has life without parole.‖ The

58

prosecutor also said, ―Consider 50 years of what you have seen of the last three years.

Don‘t let the price of your compassion be another victim.‖

On appeal, Romero expressly does not challenge admission of his statement to

Stinson. Rather he contends that the prosecutor deceived the trial court by successfully

seeking admission of the statement to rehabilitate Thibedeau‘s credibility and then using

the statement instead to improperly argue future dangerousness and urge the jury to

consider an aggravating factor not listed in section 190.3.

Romero cites no authority for the novel proposition a prosecutor commits

misconduct during closing argument by drawing a reasonable inference from properly

admitted evidence if he did not mention the inference at the time admissibility was

sought. Rather, the crux of Romero‘s claim is that future dangerousness is an

aggravating factor not listed in section 190.3 and therefore improperly relied on by a

prosecutor during argument. Romero correctly notes this court has never delineated why

there is no conflict between the circumstance that section 190.3 sets forth an exclusive

list of aggravating factors, not expressly including future dangerousness, and our line of

cases holding ―[p]rosecutorial argument regarding a capital defendant‘s future

dangerousness is permissible if . . . it is based on evidence of the defendant‘s conduct

rather than expert opinion.‖ (People v. Thomas (2011) 52 Cal.4th 336, 364.) We now do

so.

The circumstances of a defendant‘s crimes, his unadjudicated violent conduct, and

his violent conduct underlying a prior conviction, are aggravating factors under section

190.3, factors (a), (b), and (c). (People v. Homick (2012) 55 Cal.4th 816, 889.) A

prediction that a defendant will be dangerous in the future based on evidence admitted

under factors (a)–(c) is not itself a fact or an aggravating factor. It is an inference drawn

from the aggravating evidence, and is properly argued by a prosecutor and considered by

the jury in making its penalty determination. (See People v. Ervine (2009) 47 Cal.4th

745, 797 [if the jury interpreted the trial court instruction ―to mean that ‗no evidence was

59

introduced regarding the defendant‘s propensity to violence if in prison because the

defendant‘s propensity for violence in prison is irrelevant,‘ then it would have failed to

consider a relevant consideration in selecting the penalty‖].) As the high court has

recognized, ― ‗any sentencing authority must predict a convicted person‘s probable future

conduct when it engages in the process of determining what punishment to impose.‘ ‖

(California v. Ramos (1983) 463 U.S. 992, 1002.) And as the Attorney General observes,

our cases stand ―for the unsurprising proposition that the prosecution may make

reasonable inferences from properly admitted evidence to argue for imposition of the

death penalty.‖19

― ‗[W]e have held that at the penalty phase of a capital case the prosecutor may not

introduce expert testimony forecasting that, if sentenced to life without the possibility of

parole, a defendant will commit violent acts in prison . . . .‘ ‖ (People v. Michaels (2002)

28 Cal.4th 486, 540.) ―[T]here is a significant difference between an inference which a

juror may or may not draw and a direct expression of expert opinion. The expert‘s

authority and experience may persuade the jurors to a conclusion they would not reach on

their own.‖ (People v. Lucero (1988) 44 Cal.3d 1006, 1029.)

Accordingly, the prosecutor‘s argument here did not urge the jury to consider an

aggravating factor not listed in section 190.3. Rather, the prediction of future

dangerousness was supported by the evidence, properly argued by the prosecutor, and

properly considered by the jury.

19 In Lucas, supra, 60 Cal.4th at p. 321, we stated, ―The trial court properly refused

defendant‘s instruction that possible belief or predictions about a defendant‘s future

dangerousness are not to be considered for any purpose because the standard jury

instructions do not permit ‗the jury to believe defendant‘s future dangerousness could be

an aggravating factor.‘ ‖ An instruction such as that requested in Lucas would be

inappropriate because the jury may consider a defendant‘s future dangerousness. To the

extent Lucas could be read to mean a jury may not consider a defendant‘s future

dangerousness, it is disapproved. (Lucas, supra, 60 Cal.4th 153.)

60

4. Asserted instructional error

a. Victim impact

Defendants contend the trial court erroneously refused to give a limiting instruction

regarding the victim impact evidence. We disagree.

Defendants requested the court instruct the jury: ―Evidence has been introduced for

the purpose of showing the specific harm caused by the defendant‘s crime. Such

evidence, if believed, was not received and may not be considered by you to divert your

attention from your proper role of deciding whether defendant should live or die. You

must face this obligation soberly and rationally, and you may not impose the ultimate

sanction as a result of an irrational, purely subjective response to emotional evidence and

argument. On the other hand, evidence and argument on emotional though relevant

subjects may provide legitimate reasons to sway the jury to show mercy.‖ The trial court

denied the request, finding the proposed instruction was argumentative, a misstatement of

the law, and duplicative. We have previously concluded that a substantially similar

instruction was ―argumentative‖ (Hartsch, supra, 49 Cal.4th at pp. 510–511) and

―misleading to the extent it indicates that emotions may play no part in a juror‘s decision

to opt for the death penalty‖ (Zamudio, supra, 43 Cal.4th at p. 368). ―We have also held

that the standard instructions given here, including CALJIC No. 8.85, adequately convey

to the jury the proper consideration and use of victim impact evidence.‖20 (People v.

20 As we have observed, ―CALJIC now includes a standard instruction explaining the

permissible use of victim impact evidence consistent with our case law: ‗Victim impact

evidence has been received in this trial for the purpose of showing, if it does, the

financial, emotional, psychological or physical effects of the victim‘s death on the family

and friends of the victim[s]. You may consider this evidence as part of the circumstances

of the crime in determining penalty. Your consideration must be limited to a rational

inquiry, and must not be simply an emotional response to this evidence. These witnesses

are not permitted to offer any opinion as to what is the appropriate penalty in this case.‘

(CALJIC No. 8.85.1 (Spring 2010 new) (Spring 2014 ed.) . . . .‖ (People v. Boyce (2014)

59 Cal.4th 672, 689, fn. 11.)

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Williams (2013) 56 Cal.4th 165, 197.) Defendants cite no persuasive reason to revisit

these conclusions.

b. Coperpetrator’s sentence

Romero contends the trial court erroneously refused to instruct the jury it could

consider Munoz‘s sentence as a mitigating factor. ―We have consistently held that

evidence of an accomplice‘s sentence or of the leniency granted an accomplice is

irrelevant at the penalty phase because ‗ ―it does not shed any light on the circumstances

of the offense or the defendant‘s character, background, history or mental condition.‖ ‘

[Citations.] Nothing in Parker v. Dugger (1991) 498 U.S. 308, relied on by defendant,

compels a different result.‖ (People v. Maciel (2013) 57 Cal.4th 482, 549.) Moreover,

the court permitted counsel to remind the jury of Munoz‘s sentence so long as he did not

―compare it to what the defendants could possibly receive as a sentence in this case.‖

c. Reasonable doubt

Romero challenges the reasonable doubt instruction on the same grounds as in the

guilt phase. (See ante, pp. 45–47.) We reject the claim for the same reasons stated

above.

d. Challenge to CALJIC No. 8.87

Romero contends instruction in the language of CALJIC No. 8.8721 was unfairly

one-sided, implied a unanimity requirement for mitigating evidence, and directed a

verdict on whether the unadjudicated criminal conduct was violent. We have repeatedly

21 The court instructed the Romero jury that evidence had been introduced to show

Romero had committed ―assault, battery, robbery, attempted escape by force or violence,

and possession of a deadly weapon in jail.‖ It then instructed the jury: ―Before a juror

may consider any of such criminal acts or activity as an aggravating circumstance in this

case, a juror must first be satisfied beyond a reasonable doubt that the defendant Romero

did in fact commit such criminal acts or activity. . . . It is not necessary for all jurors to

agree. If any juror is convinced beyond a reasonable doubt that such criminal activity

occurred, that juror may consider that activity as a fact in aggravation. If a juror is not so

convinced, that juror must not consider that evidence for any purpose.‖

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rejected similar challenges, and do so again here. (People v. Moore (2011) 51 Cal.4th

1104, 1139–1140 [instruction regarding lack of unanimity requirement for mitigating

evidence not required, nor does the prosecution receive preferential treatment in the

absence of such an instruction]; People v. Nakahara (2003) 30 Cal.4th 705, 720

[―CALJIC No. 8.87 is not invalid for failing to submit to the jury the issue whether the

defendant‘s acts involved the use, attempted use, or threat of force or violence‖].)

Moreover, following the court‘s instructions to the Romero jury, Romero‘s counsel

indicated only Self requested (and received) an instruction providing, ―There is no need

for the jurors to unanimously agree on the presence of a mitigating factor before

considering it.‖

e. Challenge to CALJIC No. 8.88

Defendants challenge the court‘s instruction in the language of CALJIC No. 8.88 on

grounds we have repeatedly rejected. Contrary to their assertion, the language ―so

substantial‖ and ―warrants‖ in that instruction is not impermissibly vague. (People v.

Dement (2011) 53 Cal.4th 1, 56 (Dement).) ―The instruction is not constitutionally

flawed because it fails to inform the jury that if it determines the mitigating factors

outweigh the aggravating factors, it is required to return a sentence of life imprisonment

without the possibility of parole.‖ (Ibid.)

5. Constitutionality of the death penalty statute

Defendants contend California‘s death penalty statute and implementing instructions

are constitutionally invalid in numerous respects. We have repeatedly rejected similar

claims, and defendants provide no persuasive reason to revisit our decisions.

We ―reject the claim that section 190.3, factor (a), on its face or as interpreted and

applied, permits arbitrary and capricious imposition of a sentence of death . . . .‖ (Dykes,

supra, 46 Cal.4th at p. 813; see Tuilaepa v. California (1994) 512 U.S. 967, 975–976,

978.) ―[T]he death penalty statute is not unconstitutional because it does not require

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‗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.‘ [Citation.] Nothing in Cunningham v. California (2007)

549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002)

536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466, affects our conclusions in

this regard. [Citations.] No burden of proof is constitutionally required, nor is the trial

court required to instruct the jury that there is no burden of proof.‖ (Dement, supra,

53 Cal.4th at p. 55.) The trial court need not instruct there is a presumption in favor of a

sentence of life imprisonment without the possibility of parole. (People v. Adams (2014)

60 Cal.4th 541, 581.)

The trial court was not required to ―delete inapplicable factors from CALJIC

No. 8.85‖ (People v. Watson (2008) 43 Cal.4th 652, 701) or ―instruct that the jury can

consider certain statutory factors only in mitigation‖ (People v. Valencia (2008) 43

Cal.4th 268, 311). ―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. Mendoza (2011) 52 Cal.4th 1056, 1097.) The jury may

properly ―consider a defendant‘s unadjudicated criminal activity.‖ (People v. Martinez

(2010) 47 Cal.4th 911, 968.) ―Use of the adjectives ‗extreme‘ and ‗substantial‘ in section

190.3, factors (d) and (g) is constitutional.‖ (Dement, supra, 53 Cal.4th at p. 57.)

― ‗The federal constitutional guarantees of due process and equal protection, and

against cruel and unusual punishment [citations], do not require intercase proportionality

review on appeal.‘ [Citations.] Moreover, ‗capital and noncapital defendants are not

similarly situated and therefore may be treated differently‘ [as to written jury findings,

unanimity on aggravating factors, and the use of unadjudicated criminal activity] without

violating‘ a defendant‘s right to equal protection of the laws, due process of law, or

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freedom from cruel and unusual punishment.‖ (People v. Carrasco (2014) 59 Cal.4th

924, 971; see Capistrano, supra, 59 Cal.4th at p. 881.)

Defendants contend their death sentences violate international law and therefore

their rights under the Eighth and Fourteenth Amendments to the federal Constitution.

They point to no authority ―prohibit[ing] a sentence of death rendered in accordance with

state and federal constitutional and statutory requirements.‖ (Hillhouse, supra, 27

Cal.4th at p. 511.)

6. Cumulative prejudice

Defendants contend the cumulative effect of guilt and penalty phase errors requires

us to reverse the judgments. We have found error only in Self‘s conviction for the

robbery of Albert Knoefler and the duplicative multiple-murder special-circumstance

findings for both defendants, and where we have assumed error regarding the admission

of evidence of Feltenberger‘s attempted murder before Romero‘s jury and the escape

instructions given to Romero‘s jury we have concluded there was no prejudice. We

further conclude this error and any assumed error are not prejudicial when considered

cumulatively.

65

DISPOSITION

For the reasons set forth above, we reverse Self‘s conviction and sentence on count

XV, the robbery of Albert Knoefler, vacate five multiple-murder special-circumstance

findings for each defendant, and otherwise affirm the judgments.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Romero & Self

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S055856

Date Filed: August 27, 2015

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Ronald L. Taylor

__________________________________________________________________________________

Counsel:

Michael P. Goldstein, under appointment by the Supreme Court, for Defendant and Appellant Orlando

Gene Romero.

William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant Christopher

Self.

Edmund G. Brown., Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Ivy B. Fitzpatrick and

Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael P. Goldstein

P.O. Box 30192

Oakland, CA 94604

(510) 910-7220

William D. Farber

369-B Third Street, #164

San Rafael, CA 94901

(415) 472-7279

Theodore M. Cropley

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 645-2286

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