# People v. Sánchez

> California Supreme Court · June 23, 2016 · 63 Cal. 4th 411

URL: https://www.frixlaw.com/law-library/cases/3216476

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. EDGARDO SÁNCHEZ, Defendant and Appellant.
- **Court:** California Supreme Court
- **Decided:** June 23, 2016
- **Citations:** 63 Cal. 4th 411; 375 P.3d 812
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Chin, Liu, Cantil-Sakauye, Werdegar, Corrigan, Cuéllar, Kruger
- **Cited by:** 281 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3216476

## Opinion text

Filed 6/23/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S045423
v. )
)
EDGARDO SÁNCHEZ, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. LA011426
____________________________________)

A jury convicted defendant, Edgardo Sánchez, of the first degree murder of
Officer John A. Hoglund under the special circumstances of murder to prevent
arrest, murder of a peace officer, and murder in the commission of robbery; of the
first degree murder of Lee Chul Kim under the special circumstance of murder in
the commission of robbery; of the attempted murder of Luis Enrique Medina; and
of 26 counts of robbery, two counts of attempted robbery, five counts of assault
with a deadly weapon, and two counts of assault with a stun gun. The jury also
found true the special circumstance allegation of multiple murder and that
defendant personally used a firearm as to many, although not all, of the counts.
After a penalty trial, the jury returned a verdict of death. The court denied the
automatic motion to modify the verdict and imposed a judgment of death. This
appeal is automatic. We reverse one robbery count, modify the determinate prison
sentence accordingly, and otherwise affirm the judgment.

SEE CONCURRING OPINION.
I. THE FACTS

A. Guilt Phase

1. Overview
Defendant and several cohorts, usually including his two codefendants,
Jose Contreras and Benjamin Navarro, committed seven separate takeover-style
armed robberies of business establishments from December 1991 to May 1992.1
During one robbery, defendant and Contreras shot the store owner to death.
During another robbery, defendant applied a stun gun to two victims to try to
coerce one of them to unlock a safe. While leaving the scene of the final robbery,
defendant shot to death a police officer responding to a silent alarm.
Videotape containing images of all three defendants captured portions of
the last robbery. Numerous eyewitness identifications and other evidence also
connected defendant to the crimes.
At trial, defense counsel conceded that defendant was involved in some of
the robberies, and that the videotape of the final robbery showed defendant
committing it. But he argued there was a reasonable doubt about his involvement
in some of the robberies and about his guilt of some of the specific crimes.

2. Prosecution Evidence

a. Outrigger Lounge
During the evening of December 31, 1991, the Outrigger Lounge in Sun
Valley was crowded with customers preparing to celebrate the New Year. Around
8:00 p.m., at least three men entered the lounge and, at gunpoint, ordered the
customers to go to the floor. The gunmen spoke English with an Hispanic accent.

1 Contreras and Navarro were convicted of many of the same crimes. They
did not receive the death penalty and are not involved in this appeal.

2
One gunman, identified as defendant, wielded a short shotgun. He jumped
over the bar, knocking down the bartender, Robert Lehman, in the process.
Pointing his shotgun at Lehman, defendant took Lehman‘s wallet, watch, and
money clip. He also took around $410 from the cash register. Defendant then
forced Lehman to go to the office, where defendant took about $800 from the safe.
The perpetrators also took property at gunpoint from customers Walter
deWitt, Margaret Tucker, Eugene Engelsberger, Praneet Gallegos, Marjorie
Livesley, Lois Skinner, and Dennis Sorenson. The owner of the lounge, Jeannette
Luettjohann, testified that the gunmen took about $1,600 in cash and $125-130
worth of food. One gunman hit John Tucker, Margaret‘s husband, with the butt of
a shotgun, breaking two ribs.
Anne Pickard, Sorenson‘s girlfriend, who was in the restroom when the
robbery began, came out in time to see people on the floor. She later identified
defendant as the man with the short shotgun. She had previously identified him
from photographic and live lineups with differing degrees of certainty. Barbara
Salazar, an employee, tentatively identified defendant from a photographic lineup
as one of the gunmen. Engelsberger identified defendant from a photographic
lineup. Gallegos identified defendant as the man with the shotgun in court and
from a photographic lineup. Some witnesses identified Contreras and Navarro as
gunmen with various degrees of certainty.
Livesley identified a gold chain found on defendant‘s person when he was
later arrested as one that had been taken from her during the robbery.
For this incident, defendant was convicted of robbing Margaret Tucker,
Eugene Engelsberger, Praneet Gallegos, Jeanette Luettjohann, Marjorie Livesley,
Lois Skinner, Robert Lehman, and Walter deWitt, and of assaulting John Tucker
with a deadly weapon.

3
b. El 7 Mares Restaurant
On the evening of April 18, 1992, around 8:00 p.m., as many as six armed
men invaded the El 7 Mares Restaurant in Los Angeles. All were speaking
Spanish; some witnesses said they had Central American accents. One
perpetrator, holding a shotgun, told two others to ―[t]ake care of the guard.‖ The
men took private security guard Rene Aguilar‘s equipment, including his
handcuffs, and later led him at gunpoint to the kitchen area. A gunman entered the
office of Magdaleno Urrieta, the restaurant manager, and forced him to turn over
$5,000-$5,500 in cash. The gunmen then forced customers and employees,
including Urrieta, into the kitchen and told them to lie facedown on the floor.
The gunmen took a watch and about $200 from customer Nelson
Hernandez and about $8,000 worth of jewelry from his wife; money from the cash
register; around $290 from waitress Lupe Guizar; and a watch, chain, wedding
ring, and wallet containing about $80 from Urrieta.
Aguilar and Guizar identified defendant and his codefendants as among the
gunmen. Aguilar described defendant as short and Contreras as tall.2 Nelson
Hernandez identified Navarro as one of the gunmen; he identified a watch found
in a residence linked to defendant as similar to the watch taken from him.
Aguilar‘s handcuffs were later found in Navarro‘s home.
For this incident, defendant was convicted of robbing Magdelano Urrieta,
Nelson Hernandez, Lupe Guizar, and Rene Aguilar.

c. Mercado Buenos Aires
On April 24, 1992, around 5:25 p.m., at least four gunmen invaded the
Mercado Buenos Aires supermarket in Van Nuys. One gunman said, ―This is a

2 Throughout the trial, witnesses generally identified defendant as the
shortest and Contreras as the tallest of the gunmen.

4
robbery. Hands upon your head.‖ Witnesses said the men spoke Spanish with
what sounded like a Central American accent.
The store owner, Manuel Rodriguez, observed one gunman grab a well-
dressed customer by the hair and, apparently believing the customer was the
owner, tell him, ―You‘re going to show us where the money is.‖ Manuel told the
gunmen to leave the customer alone, as he, Manuel, was the owner. A gunman
took Manuel into the store office and demanded that he give him money. Manuel
turned over cash, checks, and food stamps worth about $3,000 and told the
gunmen there was no more money. Manuel‘s wife Clelia Rodriguez was brought
into the office with a gun pointed to her head. One gunman told another to cut off
one of her fingers to force Manuel to say where the rest of the money was. The
gunman also threatened to kill her if Manuel did not say where more money was.
Manuel responded that there was nothing else but to take what they wanted.
Eventually, the gunmen herded Manuel, Clelia, their son Paul, a customer,
and two employees, Dario de Luro and Arturo Flores, into a back bathroom.
Manuel Rodriguez testified that the gunmen took his chain and wedding ring,
Clelia‘s chain and bracelet, and de Luro‘s wallet and watch. He believed they
took wallets and watches from others before they entered the bathroom. Paul
Rodriguez testified that the gunmen took his necklace and ring and a wallet from
de Luro.
Manuel Rodriguez identified defendant from photographic and live lineups
and at trial as the man who pointed the gun at his wife. He identified Cordova as
the gunman who threatened to cut off Clelia‘s finger and, with less certainty,
Navarro as another gunman. He testified that defendant and Cordova seemed to
be giving the orders. Paul Rodriguez identified defendant from photographic and
live lineups and at trial as the gunman giving the orders. With less certainty, he
identified Cordova as another of the gunmen. Manuel and Paul identified a

5
necklace and a bracelet found on defendant‘s person when he was later arrested as
similar to items taken during the robbery.
For this incident, defendant was convicted of robbing Manuel Rodriguez,
Paul Rodriguez, Clelia Rodriguez, Arturo Flores, and Dario de Luro.

d. Woodley Market
On the morning of May 4, 1992, around 9:35 a.m., three or four gunmen
entered the Woodley Market, a food store in Van Nuys. Owner Lee Chul Kim had
just returned from the bank carrying cash in a brown leather bag. One gunman
approached employee Victor Cisneros, pointed a gun at him, and forced him to go
to the back of the store and lie down. The gunman spoke Spanish with what
Cisneros described as an ―El Salvadoran‖ accent. Another gunman approached
Teresa Torres, a cashier, and told her not to touch anything.
Employee Guillermo Galvez observed Kim running from a gunman,
identified as defendant, who was following Kim and pointing a handgun at him.
While he was running, Kim dropped the money bag and the keys to the store cash
drawer. Employees Eduardo Rivera and Galvez observed Kim, followed by
defendant, run to the meat freezer and try to close the door.3 Rivera heard Kim
say something that sounded as if he was ―in fear, like [he was] terrorized.‖ As
defendant attempted to and eventually succeeded in opening the freezer door,
Galvez heard Kim crying ―please don‘t do anything to me,‖ and saying ―that the
keys were here and he would give them everything.‖ Cisneros heard Kim, with
fear in his voice, say, ―Okay, Okay, please, please, okay.‖ He heard another voice
say, in Spanish with a Salvadoran accent, ―The keys, the keys.‖ Torres could not

3 Rivera was unavailable to testify at trial, so his preliminary hearing
testimony was read to the jury.

6
see Kim, but she, as well as Rivera, heard him say, ―Please, please.‖ Galvez and
Rivera saw defendant hit Kim in the neck with the gun. When Galvez last saw
Kim alive, he was on his knees in the freezer.
Gunfire erupted from the freezer area. Galvez observed defendant and
Cordova fire at Kim. He estimated he heard around 10 gunshots from two
different guns. Defendant shot downwards at Kim. Cisneros heard the sound of a
gun being dropped, then he looked and observed a hand pick up a gun. A voice
said, ―Let‘s go.‖ The men then ran past Cisneros and out of the store.
Kim was shot eight times by two different guns. Six of the shots alone
would have been fatal or potentially fatal. Evidence indicated that Kim managed
to get off some shots of his own from a .25-caliber semiautomatic handgun that he
carried on his person. His empty holster, but not his gun, was found in his pocket.
Cisneros and Galvez identified defendant at trial as one of the gunmen.
Rivera identified defendant at the preliminary hearing with ―95 percent‖ certainty
and identified him earlier at a live lineup. Cisneros, Torres, and Rivera also
identified Cordova.
For this incident, defendant was convicted of the attempted robbery and
first degree murder of Kim under the special circumstance of murder in the
commission of robbery. The jury found him not guilty of attempting to rob
Galvez and Rivera.

e. Casa Gamino
Armando Lopez was the manager, and Maricella Mendoza a hostess, at the
Casa Gamino Restaurant in Paramount. Around 9:30 p.m. on the evening of May
17, 1992, several gunmen entered the restaurant. One gunman grabbed Mendoza
by the hair, pointed a gun at her, and took her to the kitchen, where one of the
gunmen demanded she open a cash register. When she could not open it because

7
she was nervous, a man slapped her. Gunmen took other employees, including
Armando‘s brothers, Arturo and Javier Lopez, and Esequiel Flores, to the kitchen
area, where they robbed them and Mendoza of jewelry and other property.
Another gunman, identified as defendant, placed a gun against Armando‘s
stomach, and took him to the back. During these events, defendant sometimes
spoke English and sometimes Spanish with a Central American accent. Defendant
displayed what looked like a stun gun and said to Armando, ―I‘m going to kill you
with this if you say anything.‖ Defendant then forced him into the office and
demanded money. He took the money that was in the office, around $20,000.
In the office, defendant demanded that Armando open the safe. Armando
did not know the combination and told defendant he could not open it. Defendant
slapped him, then shot him with the stun gun two or three times on his ribs and
stomach, causing him to scream loudly in pain. Armando testified the gun had
―like some blue flames coming out of it.‖ Javier Lopez saw defendant give
Armando electric shocks and heard Armando screaming and saying he did not
know the combination. Defendant demanded again that Armando open the safe.
Armando responded ―that I was unable to open the door. I said I had children.‖ In
response, defendant placed his gun in his mouth and counted ―one, two, three, and
he said, ‗If you do not open the safe, I‘m going to kill you.‘ ‖
Another gunman then brought Mendoza into the office. There, as she
testified, ―They began torturing me in order to make Armando talk.‖ ―They had a
stun gun, and they were hitting me on my shoulders and my back. And they put
the gun inside Armando‘s mouth. They told him that if he was not going to open
the safe . . . , they would kill him and they would kill me as well.‖ When she told
them she did not know how to open the safe, defendant hit her in the head with a
gun. Being shocked with the stun gun was very painful and caused her to scream.
They used it on her about six times, and she could see ―blue bolts‖ coming from it.

8
Both Armando and Mendoza testified that the same man, identified by Armando
as defendant, used the stun gun on both of them.
A gunman then took Mendoza to the back and told her ―to scream . . .
loudly so that Armando would open the safe.‖ He threatened to ―put me inside
some water that was there, and then he said he was going to use the stun gun to hit
me on the heart so that I would die if I didn‘t scream loud enough.‖ She screamed
to Armando to open the safe. Arturo and Javier Lopez heard her scream many
times.
Armando was forced to open a cash register. A gunman took $300-$400
from it. Defendant took Armando‘s gold bracelet, ring, and watch. Gunmen also
took property from Lucia Lopez, Javier‘s wife. Lucia heard Mendoza screaming
from the kitchen area.
Armando, Mendoza, and Javier heard some of the robbers refer to one of
the gunmen, identified by Armando as defendant, by the name ―Morro.‖ Armando
testified that defendant responded to that name. The gunmen then left. Javier
estimated that the robbery lasted about 25-27 minutes.
Armando identified defendant in court as the man who used the stun gun on
him. Previously he identified two photographs from a lineup — one of defendant
and one of a nonsuspect — as possibly being the gunman. He also tentatively
identified Cordova and Navarro as other gunmen. Mendoza tentatively identified
Navarro as one of the gunmen but was unable to identify defendant. Arturo
identified defendant as the gunman who was with Armando, and Cordova as
another gunmen. Lucia and Javier identified defendant as one of the gunmen and
had previously identified him from photographic and live lineups. They also
identified Cordova. Flores identified Navarro from a photographic lineup as a
gunman. Customers Norman and Charlene Busby identified Cordova and
Navarro. Customer John Khounthavong, an off-duty police officer, identified

9
Cordova, and customer Raul Ramirez identified Navarro from a photographic
lineup.
The stun gun used in the robbery was never found, but an expert testified
about the characteristics of stun guns. Unlike a Taser, which can be used from a
distance, a stun gun must be applied directly to the person to have an effect. The
expert demonstrated the use of a stun gun that witnesses testified looked like the
one defendant used. It generated blue sparks and could be used to immobilize a
person.
For this incident, defendant was convicted of robbing and assaulting
Armando Lopez with a deadly weapon and with a stun gun, of robbing and
assaulting Maricella Mendoza with a deadly weapon and with a stun gun, and with
robbing Javier Lopez, Esequiel Flores, and Arturo Lopez.

f. Ofelia’s Restaurant
Ofelia Saavedra and her husband, Juan Saavedra, owned Ofelia‘s
Restaurant in South Gate. Their daughter, Leticia Saavedra, and Obdulia Garcia
also worked in the restaurant.
Around 11:30 a.m. on May 22, 1992, Ofelia observed her husband walking
toward the back door followed by a man, identified as defendant, wielding a gun.
Around this same time, Leticia was returning from an errand and was entering the
restaurant through the back door. Ofelia heard defendant, speaking Spanish, tell
Juan to stop. Juan responded by saying, ―Let me open the door for my daughter.‖
A struggle ensued between defendant and Juan over the gun. Ofelia, holding a
knife, turned to face defendant.
Leticia entered the restaurant in time to observe the struggle. Defendant
was threatening to kill Juan, and Juan was saying to let go of the gun. In the
struggle, the gun went off twice, firing into the floor. Then a second gunman,

10
identified as Cordova, appeared. Ofelia pointed the knife at Cordova but dropped
it after he threatened to shoot her. Leticia saw Cordova hit her father in the head
with his gun at least five times, causing bleeding. Cordova took Ofelia to the
dining area, where he took property from Garcia.
After the gunshots, defendant said, ―Let‘s go, the cops are coming,‖ and the
gunmen left running. A slip-on black shoe that the parties stipulated belonged to
defendant was left behind. The gunmen left in two cars, one red and one blue.
Leticia identified defendant from a live lineup and later in court as the man
who struggled with her father. She also identified a photograph of the car
defendant was driving when he was arrested as similar to the red getaway car.
Ofelia identified defendant in court and Cordova from a photographic lineup.
For this incident, defendant was convicted of assaulting with a deadly
weapon and attempting to rob Juan Saavedra, of robbing Obdulia Garcia, and of
assaulting Ofelia Saavedra with a deadly weapon.

g. George’s Market
On May 29, 1992, around 1:30 p.m., several gunmen invaded George‘s
Market, a delicatessen in Maywood. Portions of the robbery were captured on a
videotape that was played for the jury.
Defendant and Cordova went behind the counter where owner Linda Park
and her son Tom Park were standing and, at gunpoint, demanded money. They
threatened to kill Tom if he did not reveal where the money was. At one point,
defendant slapped him, knocking his glasses to the floor. At another point,
defendant pulled the slide of his semiautomatic handgun as though placing a bullet
into the chamber. They took about $1,500 from each of two cash registers, around
$1,000 worth of food stamps, a few hundred dollars from under the counter, three
bundles of $2,000 each, and a handgun the Park family kept behind the counter.

11
During these events, a gunman robbed employee Gumercindo Salgado,
taking $200-$300 from a cash register. The gunmen left, with defendant the last to
leave. Shortly after they left, those inside the store heard gunshots.
The gunmen prevented the Parks from pushing the store‘s silent alarm
button, but Salgado activated the silent alarm in the butcher shop. Two police
vehicles responded to the alarm. Officer John Hoglund, wearing a uniform, was
alone in the vehicle nearer the scene. Officer Kenneth Meisels and Reserve
Officer William Wallace — 20 minutes into his first-ever duty shift — were
together in the second vehicle farther away. Officer Hoglund radioed Officer
Meisels that he would respond to the alarm and later said he had arrived at the
location.
As Officer Meisels neared the store, he observed a red sports car with a
dark-tinted back window containing a single occupant speed past and run a stop
sign. He tried to pursue it, but it was going too fast. He attempted to contact
Officer Hoglund. Receiving no response, he gave up pursuing the car and drove to
the scene of the silent alarm. Officers Meisels and Wallace arrived to see Officer
Hoglund‘s police vehicle parked in front of the market with his bullet-riddled body
partly inside the car with his legs outside. Officer Hoglund‘s firearm was in its
unsnapped holster.
Erik Sanchez was driving in the area when he saw a police vehicle stop and
an officer get out. He heard four to five gunshots and saw the officer fall half in
the vehicle. He did not see the shooter but he saw four men run and get into two
cars, one of which was a red Mazda RX 7 with a tinted back window. He tried to
get the Mazda‘s license number but could not do so because the numbers were
obscured. The Mazda‘s driver was an Hispanic male.
Luis Enrique Medina testified that he double parked in front of George‘s
Market that day waiting while a friend went inside the store. He observed a man,

12
whom the evidence indicated was Navarro, walking back and forth in front as if
watching the store. Some men came out and then went back inside the store.
They were speaking Spanish with a Central American accent. Medina observed a
police officer turn on the lights of his vehicle, then get out and stand up. Some
men came out of the store and started running. The officer told them to stop. The
last one out, whom the evidence showed was defendant, passed by Medina‘s car
and pulled out a gun. Medina, a former police officer in Mexico familiar with
guns, believed the gun was a black nine-millimeter handgun.
Defendant swore at the police officer and said, ―You‘re going to die.‖
When, as Medina testified, the officer ―wanted to pull out his gun and his radio,‖
defendant shot him. The officer was hit in the body and fell. As the officer fell,
defendant shot him again, this time in the head.
After shooting the officer, defendant aimed the gun at Medina from about
eight feet away. Defendant was looking at Medina with his finger on the trigger.
Medina could tell the gun was empty because the slide was open. He testified that
defendant ―was trying to shoot, but there were no bullets in the gun,‖ and ―he
made a gesture as to remove the clip that was there.‖
Defendant‘s cohorts called and he ran to them. He got into a small red car,
and they drove away. Medina was unable to get the license number of the car
because something was obscuring it.
Officer Hoglund died of three gunshot wounds, two into the torso (one
through the heart), and one through the brain. The positioning of the head wound
was consistent with the officer being in the car slumped forward when shot in the
head. Each of the gunshots individually would have been fatal. The bullets were
consistent with those from a nine-millimeter handgun.
Defendant‘s image appeared on the videotape. Tom and Linda Park
identified him at photographic and live lineups and later at trial, and customer

13
Elvira Acosta identified him from a live lineup and later in court. Witnesses also
identified Contreras and Navarro. Officers Meisels and Wallace, and witness Erik
Sanchez, testified that the car defendant was driving when he was later arrested
was similar to the red car they observed.
Medina was not positive of his identification of defendant in court. He had
changed his testimony at the preliminary hearing regarding the identity of the
shooter, although he eventually identified defendant. He testified at trial the
reason for this was that at the preliminary hearing, he had been ―afraid, and I was
afraid for my family.‖ But he consistently identified defendant, who was wearing
a distinctive striped shirt in the videotape, as the man who shot the officer.
Los Angeles County Sheriff‘s Deputy Delores Perales, who investigated
this case, testified that in her experience with semiautomatic weapons, it is
obvious when the gun is empty. A criminalist testified that a magazine of a nine-
millimeter semiautomatic handgun can hold from six to as many as 19 bullets. If
the slide locks to the rear, that would indicate the gun was out of ammunition.
For this incident, defendant was convicted of the first degree murder of
Officer Hoglund under the special circumstances of murder to prevent arrest,
murder of a peace officer, and murder in the commission of robbery; of robbing
Linda Park, Tom Park, and Gumercindo Salgado; and of the attempted murder of
Luis Enrique Medina.

h. Uncharged Incident at Rod’s Coffee Shop
Brian Wellman, the manager of Rod‘s Coffee Shop in Arcadia, observed
five men enter the establishment shortly before midnight on November 7, 1990.
He offered them a table. He testified that ―as they came in, they just were kind of
looking around, and I felt very uneasy right off the bat.‖ Two of the five had some
coffee and ―took a couple of sips,‖ then the men left the shop without ordering

14
anything else. Shortly thereafter, Wellman observed ―that they were all kind of
congregated near the back door, and that made me kind of nervous.‖ ―They did
not seem to be leaving.‖ Wellman observed them standing near a car parked in the
driveway facing the street. The car appeared to be ―ready to drive away‖ rather
than parked properly in the parking lot. He also observed another vehicle off to
the side. Apprehensive that the group was planning a robbery, Wellman called the
police.
Sergeant Randy Kirby and Detective Robert Anderson responded. They
observed and then stopped an orange Datsun and a silver Honda. Defendant was
the driver of the Datsun. The Honda contained a loaded .357 Magnum. The
Datsun contained a loaded .22-caliber revolver under the front passenger seat and
a loaded .38-caliber revolver under the driver‘s seat. Next to the handgun under
the passenger seat was a functional black stun gun.
The stun gun was booked into evidence but not preserved. Detective
Anderson testified that the stun gun was functional and, when activated, emitted
blue sparks. Armando Lopez and Maricela Mendoza later identified a stun gun
that emitted similar blue sparks as one that ―looked like the one‖ used in the Casa
Gamino robbery.

i. Other Evidence
Bullets and bullet casings found at the scenes of the three robberies during
which shots were fired — the Woodley Market, Ofelia‘s Restaurant, and George‘s
Market robberies — were examined. The examination established that a single
nine-millimeter gun fired at least some of the shots during each of those robberies.
Three different guns — two nine-millimeter handguns and a .25-caliber handgun
(possibly victim Kim‘s gun) — fired shots during the Woodley Market robbery.

15
Three different guns — two nine-millimeter handguns and a .22-caliber
handgun — fired shots during the George‘s Market robbery.
Contreras and Navarro, who originally gave police the name ―Hector
Reyna,‖ were arrested on May 31, 1992. When Navarro was arrested, he was
driving an orange Nissan with 13-year-old Rosa S. as a passenger.
The officer who arrested Navarro also observed a red Mazda believed to be
involved in the robberies. Later the same evening, he stopped that car and arrested
defendant, the driver. The car‘s rear license plate number was obscured.
Witnesses testified that the car was similar to the red car seen leaving the scene of
the Ofelia‘s Restaurant and George‘s Market robberies. When he was arrested,
defendant had a white sock containing jewelry concealed in his underwear.
Witnesses later identified items of jewelry removed from the sock as similar to
jewelry taken in the Outrigger Lounge and Mercado Buenos Aires robberies.
When arrested, and as late as his first court appearance, defendant identified
himself as ―Carlos Antonio Juarez.‖
The prosecution placed into evidence photographs found in some of the
defendants‘ residences showing the defendants together, sometimes with firearms
that witnesses said resembled firearms used in the robberies.
Rosa S. testified that she was with Navarro, whom she knew as ―Hector,‖
when he was arrested.4 Two days earlier, the day of the George‘s Market robbery,
she had been at the house of a friend of Navarro‘s she knew as ―El Morro.‖ She
identified defendant in court and from the videotape of the George‘s Market
robbery as the friend. Defendant and Navarro left the house, then returned about

4 Rosa S. could not be located at the time of trial, so her preliminary hearing
testimony was read to the jury. The court also admitted a taped statement Rosa
had previously made to the police.

16
an hour later with a large amount of money. Defendant drove the red car he was
later arrested in. Later other men, including Cordova, arrived, some with
handguns. In Rosa‘s presence, they divided the money among themselves.
While Rosa S. was still at defendant‘s house, and in defendant‘s presence,
someone said, ―Carlos‖ — meaning defendant — ―shot a cop.‖ Defendant himself
said, ―I shot a cop.‖ He said he ―shot because the officer had gotten in his way.‖
In the same conversation, he also said that ―he had already shot like eight or nine
people in his country.‖

3. Defense Evidence
Los Angeles County Sheriff‘s Deputy Nicholas Cabrera testified that he
interviewed witnesses shortly after the Casa Gamino robbery, at a time when
matters were chaotic. Armando Lopez told him he believed one of the robbers,
apparently referring to defendant, ―was of Mexican descent,‖ and the other robbers
came from Central America.

B. Penalty Phase
The prosecution presented evidence that in 1990, defendant was convicted
of possession for sale of cocaine base.
Defendant presented substantial evidence in mitigation. He was from
Honduras, the youngest of 10 children. His mother, two brothers, and a sister
testified about his life in Honduras. He also presented several witnesses who
testified that he had embraced religion in jail and would be of help to others in the
future. Arturo Talamante, a ―Hispanic coordinator of the ministry in prisons,‖
testified that in 25 years, he had found only two people, including defendant, ―who
have the spirituality that he [defendant] has had.‖ Luke Packel, a Catholic
missionary, expressed the opinion that because of the depth of his religious
feelings, defendant‘s ―life has completely turned around.‖

17
Defendant testified. He discussed his religious conversion in jail. He
studied the Bible and ―surrendered fully to the learning, to learn more about our
Lord.‖ He wrote some Bible studies, hoping they would help others. He said he
shot and killed Kim, but only after Kim shot him first. He admitted shooting
Officer Hoglund to escape after the robbery. At first he did not feel remorse, but
over time, he came to ―realize that human life has an infinite value to it,‖ and now
he had ―the genuine desire to rescue others from their mistakes.‖ He concluded
his direct examination by saying that he now knows that ―human life has an
infinite value to it, and I ask our Lord to grant me the opportunity to prove that to
others so that they can once and for all abandon that path and to be saved by our
Lord.‖
II. DISCUSSION

A. Jury Selection Issues

1. Denial of Sequestered Voir Dire
Defendant moved the court ―to conduct individualized, sequestered death
qualification in compliance with Hovey v. Superior Court (1980) 28 Cal.3d 1.‖
The court denied the motion. Defendant contends the court erred, and that it was
required to question the jurors individually about their views on the death penalty.
We disagree.
―Code of Civil Procedure section 223 provides in part: ‗Voir dire of any
prospective jurors shall, where practicable, occur in the presence of the other
jurors in all criminal cases, including death penalty cases.‘ That provision, added
by initiative (Prop. 115) in 1990, had the effect of abrogating this court‘s
supervisory direction in Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 (Hovey)
that the death-qualifying voir dire always be conducted individually and in

18
sequestration, i.e., out of the other prospective jurors‘ presence.‖ (People v.
Brasure (2008) 42 Cal.4th 1037, 1050.)
Defendant contends the Hovey rule is constitutionally compelled. It is not.
―The Hovey rule was not constitutionally compelled; the electorate was free to
abrogate it by initiative statute.‖ (People v. Brasure, supra, 42 Cal.4th at p. 1050.)
He also contends the court abused its discretion. ―Under Code of Civil Procedure
section 223, the trial court retains the discretion to conduct sequestered voir dire if
it concludes that collective voir dire would not be practicable.‖ (People v. Thomas
(2012) 53 Cal.4th 771, 789.) In this case, the prospective jurors were asked to fill
out a detailed questionnaire so they could state their opinions untainted by the
other prospective jurors. The court did not abuse its discretion in finding this
procedure adequate to ensure a fair jury selection process. (People v. Watkins
(2012) 55 Cal.4th 999, 1011.)
Defendant argues that, even after filling out the questionnaires, some
prospective jurors might have been influenced during voir dire by answers other
prospective jurors gave. But ―the purpose and effect of the ‗group voir dire‘
requirement of Code of Civil Procedure section 223 would be obviated if
nonsequestered questioning were deemed ‗[im]practicable‘ because of the
speculative concern that one prospective juror‘s death penalty responses might
influence the responses of others in the venire. It is precisely this premise of
Hovey v. Superior Court, supra, 28 Cal.3d 1, that Proposition 115‘s adoption of
Code of Civil Procedure section 223 was intended to overrule.‖ (People v.
McKinnon (2011) 52 Cal.4th 610, 634.) We see no abuse of discretion.

2. Prosecutor’s Use of Peremptory Challenges
During jury selection, defendant twice objected that the prosecutor
exercised peremptory challenges against ―Hispanic‖ prospective jurors for reasons

19
of group bias in violation of his state and federal constitutional rights. (See Batson
v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler).) He appears to define the group broadly to include anyone who self-
identifies as Hispanic or a member of a Hispanic subgroup, or anyone with a
Spanish surname. (See People v. Trevino (1985) 39 Cal.3d 667, 676, 686.) Both
times, the trial court found that defendant had not made out a prima facie case of
discriminatory challenges and denied the objection. Defendant contends the court
erred.

a. Applicable Legal Principles
―Both the state and federal Constitutions prohibit the use of peremptory
strikes to remove prospective jurors on the basis of group bias. (Batson, supra,
476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The now familiar
Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the
strike must make out a prima facie case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose in the exercise of
peremptory challenges. Second, if the prima facie case has been made, the burden
shifts to the proponent of the strike to explain adequately the basis for excusing the
juror by offering permissible, nondiscriminatory justifications. Third, if the party
has offered a nondiscriminatory reason, the trial court must decide whether the
opponent of the strike has proved the ultimate question of purposeful
discrimination. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)‖
(People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).)
The trial court ruled defendant had not made out a prima facie case of
discriminatory purpose on both occasions. It invited the district attorney to state
reasons for some of the excusals but did not rule on the validity of those reasons.
Under these circumstances, we review the correctness of the court‘s first stage

20
rulings that defendant had not made out a prima case. (Scott, supra, 61 Cal.4th at
p. 386.) We review those rulings independently where, as here, the trial predated
Johnson v. California, supra, 545 U.S. 162 (Johnson), and it is not clear from the
record whether the trial court analyzed the Batson/Wheeler motion under
Johnson‘s standard of an inference of discriminatory purpose. (Scott, at p. 384.)
―Although the question at the first stage concerning the existence of a prima
facie case depends on consideration of the entire record of voir dire as of the time
the motion was made [citation], we have observed that certain types of evidence
may prove particularly relevant. [Citation.] Among these are that a party has
struck most or all of the members of the identified group from the venire, that a
party has used a disproportionate number of strikes against the group, that the
party has failed to engage these jurors in more than desultory voir dire, that the
defendant is a member of the identified group, and that the victim is a member of
the group to which the majority of the remaining jurors belong. [Citation.] A
court may also consider nondiscriminatory reasons for a peremptory challenge that
are apparent from and ‗clearly established‘ in the record (People v. Box (2000) 23
Cal.4th 1153, 1189; see People v. Turner (1994) 8 Cal.4th 137, 168) and that
necessarily dispel any inference of bias. (People v. Taylor (2010) 48 Cal.4th 574,
644; accord, U.S. v. Stephens (7th Cir. 2005) 421 F.3d 503, 518, 516 [‗the
examination of ―apparent‖ reasons in the record . . . involves only reasons for the
challenges that are objectively evident in the record . . .‘ such that ‗there is no
longer any suspicion, or inference, of discrimination in those strikes‘]; cf. Williams
v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110 [‗refutation of the inference
requires more than a determination that the record could have supported race-

21
neutral reasons for the prosecutor‘s use of his peremptory challenges . . .‘].‖
(Scott, supra, 61 Cal.4th at p. 384.)5
―[A] reviewing court may not rely on a prosecutor‘s statement of reasons to
support a trial court‘s finding that the defendant failed to make out a prima facie
case of discrimination. Although a court reviewing a first-stage ruling that no
inference of discrimination exists ‗may consider apparent reasons for the
challenges discernable on the record‘ as part of its ‗consideration of ―all relevant
circumstances‖ ‘ [citation], the fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first
stage.‖ (Scott, supra, 61 Cal.4th at p. 390.)
Accordingly, we now review independently the totality of the
circumstances as they existed when defendant objected to determine whether the
trial court correctly ruled that defendant did not make out a prima facie case of
discrimination. As we explain, we find no error.

b. First Finding of No Prima Facie Case
During jury selection, the court worked with groups of 18 prospective
jurors, 12 of whom would be placed in the jury box and made subject to challenge.

5 Defendant cites the recent decision of Shirley v. Yates (9th Cir. 2015) 807
F.3d 1090, 1101, which stated that a reviewing court may not affirm a finding of
no prima facie case any time the record suggests grounds on which the prosecution
might reasonably have made the challenge at issue. This statement is comparable
to the language from Williams v. Runnels, supra, 432 F.3d at page 1110, quoted in
Scott, supra, 61 Cal.4th at page 384. Shirley and Williams appear correct that
under Johnson, supra, 545 U.S. 162, reviewing courts may not uphold a finding
of no prima facie case simply because the record suggests grounds for a valid
challenge. But we believe Johnson permits courts to consider, as part of the
overall relevant circumstances, nondiscriminatory reasons clearly established in
the record that necessarily dispel any inference of bias. (Scott, supra, 61 Cal.4th at
p. 384; see also U.S. v. Stephens, supra, 421 F.3d 503 [cited in Scott].)

22
When one of the 12 was challenged, another would replace that one and then be
subject to challenge. As needed, more prospective jurors would be added to
replenish the number to 18.
When defendant made his first Batson/Wheeler objection, the prosecution
had used two of its first eight peremptory challenges to excuse two of the five
Hispanic jurors then available for challenge: P.G. and E.A.6 Both prospective
jurors identified themselves as Mexican-American in their jury questionnaire. The
court found no prima facie case but invited the prosecution to state its reasons for
the challenges. Because the two prosecutors, Deputy District Attorneys Susan
Speer and Michael Grosbard, each exercised one of the challenges, each explained
the reasons. The court did not evaluate those reasons but simply denied the
motion.
Regarding P.G., Grosbard said he ―was extremely against the death penalty
on the questionnaire. Always, never, never on the questioning. And here in court
he said he didn‘t like it. He ultimately equivocated, but he — his questionnaire
showed he was extremely against it. We don‘t think he could be fair on the issue.‖
Regarding E.A., Speer said she ―came from a very disturbed background and
indicated she had recent surgery, was on medication. She was abused as a child,
indicated she could probably set that aside, but she indicated she also had medical
problems from the surgery. She was also very anti-death penalty on the
questionnaire.‖

6 Defendant states that only three Hispanic jurors had been subject to
challenge at this point, specifically, E.S., P.G., and E.A. However, the other two,
T.M. and M.M., were called into the box and made subject to challenge shortly
before the prosecution challenged E.A.

23
Exercising two of eight peremptory challenges to excuse two of the five
Hispanic prospective jurors then subject to challenge did not itself provide an
inference of discriminatory purpose. The prosecution had not excused most or all
of the group and did not use a significantly disproportionate number of strikes
against that group. Nothing indicates the questioning was desultory.
As defendant notes, the three defendants were Hispanic and the two murder
victims were not. But many other victims were Hispanic, including attempted
murder victim Medina and the two victims of the particularly vicious assaults with
the stun gun at the Casa Gamino Restaurant. Moreover, the evidence the jury was
to hear indicated the defendants came from Central America. Medina testified he
was from Mexico. The jurors could reasonably infer that at least some of the other
victims, many of whom testified with the aid of an interpreter, came from Spanish-
speaking countries. It is not clear prosecutors would be motivated to excuse
prospective jurors who self-identified as Mexican-American in a case involving so
many apparently Hispanic victims, including at least one from Mexico. This
factor does not support an inference of discriminatory purpose.
Moreover, as initially sworn, the actual jury contained six non-Hispanic
African-Americans, five non-Hispanic Whites, and one Hispanic. This suggests
that, at the time of the motions, it was not clear that the victims belonged to the
group to which a majority of the remaining jurors would belong. It appears none
of the victims were African-American. Accordingly, this factor does not support
an inference of discrimination.
Additionally, the record clearly establishes nondiscriminatory reasons for
the two challenges that dispel any inference of bias. P.G. said he had ―never been
in favor of the death penalty,‖ and he did not believe ―it has been applied in a
standard way to the diverse population of offenders.‖ During voir dire, he
indicated he could impose the death penalty ―if things are very desperate, very

24
clear that it‘s not even,‖ because he accepted that it was the law. But he also said
that he was not in favor of it and would support ―tak[ing] it off the books.‖
E.A. indicated on the questionnaire that she had been sexually abused as a
child and was ―recovering from a brain operation for seizure disorder.‖ She was
on medication and had her doctor‘s permission to serve as a juror. She would
have ―[d]ifficulty‖ to ―judge in terms of the death penalty.‖ Regarding the death
penalty, she wrote, ―I feel sad that we have the death penalty, life is precious to
me. Death penalty is necessary though because of the crime involved. I feel
reluctant to be directly involved with a decision regarding the death penalty.‖ She
added, ―I understand the penalty of death. I do not want to be in a position to
make a decision on this penalty.‖ During voir dire, she indicated that choosing life
would not be an ―emotional decision,‖ Choosing death would be ―difficult,‖ but
she could ―detach‖ herself.
All of these circumstances support the conclusion that the prosecution
excused these jurors for nondiscriminatory reasons and not due to group bias.
These reasons, apparent from the record, are included in the actual reasons the
prosecutors stated. This is no coincidence. The mere fact the prosecutors stated
the reasons is not relevant to support a finding of no prima facie case. But the
reasons apparent from the record and the reasons the prosecutor stated will
generally, if not always, coincide.
Defendant notes that the prosecution challenged for cause another of the
Hispanic prospective jurors, E.S., who eventually became an actual juror, on the
basis that the juror had difficulty understanding the proceedings. The court denied
the challenge. A prosecutor (and indeed any party) is entitled to challenge
prospective jurors for cause. (People v. Kelly (2007) 42 Cal.4th 763, 780.)
Although a specious challenge for cause might in some circumstances support an
inference of bias in a prosecutor‘s peremptory challenges, nothing in this record

25
suggests the challenge was specious. The record indicates the trial court was
concerned that E.S. might have trouble with English, was probably not well
educated, and offered a somewhat inappropriate response suggesting he would
have a problem with the age of the defendants. Moreover, the prosecutor did not
challenge this juror peremptorily.
The totality of the circumstances as they existed at the time of the court‘s
first ruling did not suggest an inference of discriminatory purpose. The court
properly found no prima facie case.

c. Second Finding of No Prima Facie Case
After the court denied the first Batson/Wheeler motion, jury selection
continued. The prosecution accepted the jury multiple times with three Hispanic
prospective jurors on the panel while the defendants continued exercising
peremptory challenges.
During this time, Prospective Juror R.F. was called. He was the sixth and
final Hispanic to be called other than those excused for cause or hardship. R.F.
provided no response when asked his racial or ethnic background on the
questionnaire, and the record does not otherwise indicate his race or ethnicity; he
qualifies as Hispanic because he has a Spanish surname. Outside the presence of
the jury, defendant‘s attorney challenged R.F. for cause for reasons not clear from
the record. The court denied the challenge, stating, ―I hope somebody excuses
him, but I don‘t believe it rises to cause.‖ When back in front of the jury, the
prosecution exercised a peremptory challenge against R.F.
Later, defendant challenged one of the three remaining Hispanic jurors.
After this, the prosecution accepted the jury two more times with the two
remaining Hispanic prospective jurors on it. Then, after the defendants exercised
additional peremptory challenges, the prosecution challenged Hispanic

26
Prospective Juror T.M. On her questionnaire, she identified herself as
―Hispanic/white.‖
At this point, defendant made his second Batson/Wheeler objection,
pointing out that the prosecution had challenged four of the six prospective
Hispanic jurors subject to peremptory challenge. The court again found no prima
facie case but invited the prosecution to ―make a record with respect to [T.M.].‖
The prosecutor stated his reasons for that challenge: ―She had some equivocation
about the death penalty in her jury questionnaire. She indicated that: Police are
fair most of the time. Sometimes I get the impression they prejudice people on
how they look. She had mixed feelings about the death penalty. On page 20:
Could you see yourself rejecting life and choosing the death penalty instead? She
wrote no. She does work for the Department of Children Services [sic]. I think
she would tend to be more sympathetic to the problems of the defendants in the
penalty phase. She seemed more in tune with the defense attorneys than she was
when the prosecution voir dired her. She had some problems with immunized
witnesses on her questionnaire.‖ The court did not evaluate those reasons but
instead reiterated that it found no prima facie case.
The totality of the circumstances that existed at the time of this second
objection also did not support an inference of a discriminatory purpose.
Defendant stresses that at this point, the prosecution had exercised four of its 10
peremptory challenges to challenge four out of six (i.e., two-thirds) of the
prospective Hispanic jurors, which meant that, after defendant challenged another
of the Hispanic prospective jurors, only one Hispanic individual was actually on
the jury. It appears that, as of this time, 19 percent of the jurors subject to
challenge (six of 32) were Hispanic. Considered alone, these circumstances might
suggest a discriminatory purpose, but under the totality of circumstances, they do
not. The prosecution challenged R.F. immediately after defendant himself had

27
challenged R.F. for cause, and the court, while denying the cause challenge, had
stated the wish that someone would excuse him. This circumstance strongly
suggests a nondiscriminatory purpose for the challenge.
Additionally, before the prosecution finally challenged T.M. (as well as
R.F.) it had accepted the jury several times with three and then, after defendant
challenged one, two Hispanic jurors on it. This circumstance, although not
dispositive, ―strongly suggests that race was not a motive behind the challenge.‖
(People v. Kelly, supra, 42 Cal.4th at p. 780; see People v. Cunningham (2015) 61
Cal.4th 609, 664; People v. Clark (2011) 52 Cal.4th 856, 906.)
Additionally, the record clearly establishes nondiscriminatory reasons for
challenging T.M. On the questionnaire, she answered ―Yes‖ when asked whether
she had ―moral, ethical or religious beliefs that would make it difficult for you to
vote for‖ the death penalty, explaining that ―it would be hard, but it depends on the
overall crime.‖ After stating that she could return a verdict of life imprisonment,
she answered ―No‖ to the question: ―Given the fact that you have two options
available to you, can you see yourself, in the appropriate case, rejecting life
imprisonment without the possibility of parole and choosing the death penalty
instead.‖ During voir dire, she said she could vote for the death penalty, but her
questionnaire answers provided a strong reason for a prosecutor to excuse her out
of concern about her views and not for a discriminatory purpose.
Defendant notes that the court did not invite the prosecution to state its
reasons for excusing R.F. But because defendant himself had just challenged that
juror for cause, and the court had expressed the wish that someone would excuse
him, such an explanation was hardly necessary.
Defendant asks us to engage in comparative juror analysis, but such
analysis is inappropriate in a first stage case such as this, where we do not evaluate
the prosecution‘s stated reasons for the challenges. (People v. Taylor, supra, 48

28
Cal.4th at pp. 616-617.) Moreover, even if we were to engage in comparative
juror analysis in this situation, it would not aid defendant for the reasons stated in
Justice Liu‘s concurring opinion.
In short, the totality of the relevant facts as of the time of the objections
does not give rise to an inference of a discriminatory purpose. The trial court
properly denied the Batson/Wheeler objections.

B. Guilt Phase Issues

1. Admission of Two Witnesses’ Preliminary Hearing Testimony
The prosecution could not locate three witnesses at the time of trial and
sought to have their preliminary hearing testimony admitted. The court denied the
request as to one witness, finding the prosecution had not shown due diligence in
locating him. It admitted the preliminary hearing testimony of the other two
witnesses — Eduardo Rivera and Rosa S. Defendant contends the court erred as
to these two witnesses.

a. Applicable Legal Principles
A criminal defendant has a state and federal constitutional right to confront
witnesses, but the right is not absolute. If a witness is unavailable at trial and has
given testimony at a previous court proceeding against the same defendant at
which the defendant had the opportunity to cross-examine the witness, the
previous testimony may be admitted at trial. In a criminal case, the prosecution
bears the burden of showing that the witness is unavailable and, additionally, that
it made a ―good-faith effort‖ (Barber v. Page (1968) 390 U.S. 719, 725) or,
equivalently, exercised reasonable or due diligence to obtain the witness‘s
presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see
People v. Valencia (2008) 43 Cal.4th 268, 291-292 [―California law and federal
constitutional requirements are the same in this regard.‖].)

29
―[T]he term ‗due diligence‘ is ‗incapable of a mechanical definition,‘ but it
‗connotes persevering application, untiring efforts in good earnest, efforts of a
substantial character.‘ ‖ (Cromer, supra, 24 Cal.4th at p. 904.) Relevant
considerations include the timeliness of the search, the importance of the witness‘s
testimony, and whether leads were competently explored. (Ibid.) The reviewing
court defers to the trial court‘s determination of the historical facts if supported by
substantial evidence, but it reviews the trial court‘s ultimate finding of due
diligence independently, not deferentially. (People v. Bunyard (2009) 45 Cal.4th
836, 851 (Bunyard); Cromer, supra, 24 Cal.4th at p. 900-901.)

b. Eduardo Rivera
Defendant agreed that the due diligence question regarding Eduardo Rivera
could be based on the district attorney‘s offer of proof, which included the
following. After the crime, Rivera, a Mexican national, told others that ―he was
distraught and was having a lot of mental and psychiatric problems as a result of
witnessing the killing.‖ Several months before trial, he told various people that
―he was returning to Mexico to buy a plot of land and was not planning to return.‖
Around April 1994 (i.e., six months before the October 13, 1994 hearing), after a
fourth suspect was arrested in these crimes, the district attorney‘s office attempted
unsuccessfully to locate Rivera. Two investigators ―found the same information,
that everyone told him he had left, he was no longer at his former address or
former employment or former phone numbers.‖
Since April 1994, Will Abram, an investigator with the district attorney‘s
office, had tried to locate Rivera. With the assistance of the Immigration and
Naturalization Service, he determined that Rivera was, in fact, a Mexican national.
Abram located Rivera‘s brother on September 23, 1994, living in the San
Francisco area, who confirmed that Rivera had ―returned to Mexico with no

30
definite plans to return at this time.‖ The brother could not give a telephone
number for Rivera because he had no telephone. The location was ―a small village
outside of Guadalajara which, to our information, has one phone. His brother has
made several attempts to leave messages at that phone to have his brother return
his call, to no avail.‖
Abram also told the court that the last conversation with the brother ―was
on October 4, last week, and the brother reiterated at that time that he made
several attempts to call and left messages for his brother to return the call and he
has not heard from Mr. Rivera yet.‖
Based on these facts, the court found that the prosecution had exercised due
diligence to obtain Rivera‘s presence at trial and admitted his preliminary hearing
testimony.
At trial, defendant argued that the prosecution should have sent an
investigator to Mexico to try to find Rivera and convince him to come to
California voluntarily to testify. On appeal, relying on cases that postdate the trial,
he also argues that the prosecution should have made use of a treaty between
Mexico and the United States that took effect in 1991 and that, as one of the cases
defendant cites describes it, ―allows the prosecution to request the assistance of
Mexican authorities to invite a person in Mexico to come to California and testify
and to inform the person concerning the extent to which expenses will be paid.‖
(People v. Sandoval (2001) 87 Cal.App.4th 1425, 1439, fn. omitted (Sandoval);
see People v. Herrera (2010) 49 Cal.4th 613, 626-627 & fn. 7.)
The Attorney General argues that defendant has forfeited the claim that the
prosecution should have made use of the treaty because he did not make that
argument at trial. We disagree. Defendant objected to the admission of the
preliminary hearing testimony and argued the prosecution had not shown due
diligence in procuring the witness‘s presence. Given that the prosecution has the

31
burden of showing due diligence, this objection was sufficient to preserve the
contention. The argument at trial need not be identical to the appellate argument
in all respects. However, the circumstance that no one suggested the prosecution
make use of the then very recent treaty is relevant to the question of whether the
prosecution had made a good faith effort, i.e., exercised due diligence, to obtain
the witness. The prosecution must do what is reasonable under the circumstances,
not necessarily everything that can be suggested in hindsight.
Under the circumstances here, we conclude the prosecution exercised due
diligence. It determined that Rivera had left California and returned to his native
Mexico, and was apparently living in a village with only one communal telephone.
It located Rivera‘s brother, who tried, unsuccessfully, several times to contact
Rivera. It is speculative to believe that additional efforts would have resulted in
finding him and convincing him to return voluntarily to the United States to
testify.
Nor was Rivera‘s testimony particularly important. (Cromer, supra, 24
Cal.4th at p. 904.) Rivera, although important in the sense that he positively
identified defendant as the perpetrator of very serious crimes, was but one of many
witnesses, whose testimony was consistent and who overwhelmingly established
defendant‘s guilt of the crimes about which Rivera testified. In a case like this,
with dozens of witnesses, there is a limit to what one can expect the prosecution to
do to procure the attendance of a noncritical witness.
Defendant relies on Sandoval, supra, 87 Cal.App.4th 1425. But, unlike that
case, Rivera was not a ―crucial witness.‖ (Id. at p. 1428.) Nor, also unlike
Sandoval, had the prosecution established contact with Rivera.
We conclude the trial court correctly found the prosecution exercised due
diligence to try to locate Rivera and properly admitted his preliminary hearing
testimony.

32
c. Rosa S.
Rosa S. was 13 years old at the time of the events about which she testified
(May 1992), 14 years old when she testified at the preliminary hearing (March
1993), and 16 years old at the time of the due diligence hearing on October 13,
1994. It appears she gave birth to a baby in January 1994, several months before
the due diligence hearing.
Rosa had testified at the preliminary hearing under a grant of use immunity.
Before she testified, the prosecution informed the court that it was having
difficulty locating her. Two days later, it stated that it had finally located her the
previous day when she was arrested in an unrelated matter. It requested that she
be held to testify as a material witness under Penal Code section 1332. (See
Bunyard, supra, 45 Cal.4th at p. 847.) The court ordered $20,000 bail be set to
ensure her testimony. Two days later, after she had testified on direct examination
and cross-examination had begun, the prosecution asked the court to set no bail at
all because the witness had ―indicated she has wanted to stay on the street, not any
intention of returning home or resurfacing in this case.‖ The court maintained the
$20,000 bail, and Rosa completed her testimony.
At trial, the prosecution informed the court it could not locate Rosa, and a
due diligence hearing was held, based on representations from the two prosecutors
and the testimony of investigator Will Abram.
The prosecutor stated that Rosa ―has always been very cooperative in terms
of testifying in this matter and providing information.‖ On May 4, 1994, after a
fourth suspect in these robberies had been arrested, one of the prosecutors and
Deputy Perales, the investigator who later testified at trial, visited her in Pomona.
That prosecutor described her at that time as ―very friendly, very cooperative. She
gave us the name of her social worker, her home number, her home address.‖ The
prosecutor told Rosa that she would be needed to testify at the preliminary hearing

33
against the fourth defendant and in this trial in September. ―She indicated she did
not want to do it, but she would, that she understood that she needed to tell the
truth and to be available.‖ At that time, the prosecution served her with a
subpoena to attend a live lineup on May 16, 1994, involving the fourth defendant
and with a subpoena to appear on September 7, 1994, in this matter. She did
appear at the live lineup as scheduled, at which time she was again served with a
subpoena to appear on September 7.
According to one of the prosecutors, during this time Rosa ―continued to
exhibit cooperativeness with the district attorney‘s office in this matter, such that
we didn‘t expect to have difficulties finding her.‖ He explained, ―We go back to
her prior history. She was a runaway and that was the only thing that we
understood was the problem in contacting her was that she kept running away
from her parents. Once she was no longer with her parents, we did not expect to
have any of the problems that have occurred.‖
That May, Rosa also told the prosecutor that ―she had not yet turned herself
in on the outstanding warrant from Pomona.‖ When told that she needed to turn
herself in, ―[s]he agreed that she would clear up the matter.‖
The prosecutor and Deputy Perales visited Rosa again in July 1994. She
had moved to Montclair in the meantime. They told her that the preliminary
hearing regarding the fourth defendant and the trial in this case was coming up.
She again said she had not yet turned herself in. ―Detective Perales again told her
that she had to turn herself in or she would be picked up on the warrants
immediately.‖ Rosa agreed to do so.
In August 1994, the prosecutors learned that Rosa had in fact turned herself
in and the Pomona matter was disposed of, with a final hearing scheduled for the
following October 14 (i.e., the day after the due diligence hearing). During
August, she had been in custody in that matter for several days. Then, according

34
to one of the prosecutors, Rosa ―was released to her parents pending a pickup by
the community detention program.‖ When the deputy district attorney handling
Rosa‘s Pomona matter asked the prosecution in this case what it wanted done with
her in that matter, the prosecutor, ―knowing that she had been cooperative with us
and knowing that she now had an address that was different from the address that
she had been running away from, that of her parents, we indicated that we don‘t
have a problem with her release as long as there is electronic surveillance with
her.‖
The prosecutor explained further, ―Between the time she testified at the
preliminary hearing and the time she was served with the subpoena, she had a
baby. We believed this to lend her some stability. She also is collecting checks
from, I believe, D.P.S.S. [Department of Public Social Services], and we agreed to
the release on the community detention program, but there were no promises
whatsoever made to [Rosa] in exchange for cooperation or anything like that. It
turns out, as I see from the minute order from the juvenile court which sustained
her petition, that she was released to her parents. This is the place that she had
been running away from. She was released to them pending the installation of the
electronic surveillance device. The very night she was released to her parents, she
left. We have not been able to find her since.‖ The Pomona court issued a
warrant for her arrest on August 19, 1994.
Investigator Abram testified about his efforts to locate Rosa after her
release from custody in August 1994. (All dates mentioned in his testimony are to
the year 1994.) He began trying to find her on August 31, when he went to her
last known address and spoke to the manager, who said he did not recognize
Rosa‘s photograph. The next day, he contacted the Department of Public Social
Services, and was told the person assigned to Rosa‘s case was on vacation until
the following Tuesday. He also called the clerk of the Pomona court that had

35
handled her case, who gave him the telephone number of the attorney who had
represented her. He called that number, but it was disconnected and there was no
new number. He called the State Bar and was given a number for the attorney, but
it was also disconnected. He also called the community detention program that
Rosa was supposed to be on and spoke with a person who said she would research
the matter and call him back.
On September 7, Abrams spoke with the assigned case worker with the
Department of Public Social Services, who gave him a new address for Rosa in
Pomona. He went to the apartment at that address and spoke with Naomi Rojas,
who said that Rosa had come to the apartment on September 1 to pick up her
welfare check, but that she had not lived there for two months. Rojas said she was
the sister of the man who was reportedly the father of Rosa‘s baby. However,
Rojas said, ―shortly after the baby was born, [Rojas] and her mother . . . found out
this was actually not their brother‘s baby. Difficulties arose. That is why [Rosa]
was no longer living with them. She said she had no idea where [Rosa] was
living.‖ Rojas gave Abram the baby‘s name and date of birth. He called the
caseworker at the Department of Public Social Services, and she agreed to hold
Rosa‘s check and call him if Rosa called in with a new address.
Abram also contacted the deputy district attorney assigned to Rosa‘s
Pomona case, who checked the file and verified that ―Rosa had inadvertently not
been placed on the electronic home surveillance.‖ He spoke with the probation
officer assigned to Rosa‘s case, who told him that ―through some paper mishap
Rosa was placed on an informal probation status and . . . that is why she was not
placed on this home detention program.‖ On September 12, he obtained a copy of
the juvenile court‘s minute order and August 19 arrest warrant.
On September 15, Abram received a call from the Department of Public
Social Services case worker, who said Rosa had called that morning and given her

36
a new address in Pomona. He asked her to continue to hold Rosa‘s welfare check
until he visited that address. On September 20, he spoke with Rosa‘s father, who
told him he picked his daughter up on August 19, and she ran away the next day.
He filled out a missing person‘s report with the sheriff, and did not know where
Rosa was. Abram also went to Rosa‘s new address and spoke with Lucy
Espinoza, who was living at the apartment. She told him Rosa had been living at
the next-door apartment with Naomi Rojas and her mother. She had received a
telephone message from Rosa on September 17 that just left her name. Abram
told her he was looking for Rosa, not because she was in trouble, but because he
was trying to help her and needed her to testify in court. Espinoza ―expressed
concern for Rosa because she felt Rosa was very young and easily misled and she
would assist me in any way possible.‖
On September 29, Abram again spoke with the caseworker and asked her to
continue to hold the welfare check because Rosa was not living at the new
address. She told him she could not stop the check from being mailed. On
October 1, he returned to the last known address and spoke again with Espinoza.
He took the welfare check from her and told her to have Rosa call him when she
came to pick it up. He gave her a 24-hour number at which he could be reached.
On October 2, he told one of the prosecutors that he had the check and expected
Rosa to call him. On October 12, he again called Espinoza, who said she had not
seen or heard from Rosa. He also verified that he would be notified if and when
Rosa was brought in on the arrest warrant.
On cross-examination, defense counsel ascertained that Abrams had not
tried to contact Naomi Rojas‘s brother, the purported father of Rosa‘s child.
Abrams further testified that Rosa‘s father had told him that before he remarried,
―he and his daughter got along fine. Once he remarried, his daughter did not get
along with his new wife and it created these types of problems. She has been a

37
runaway apparently a year and a half or close to two years, and we are talking
about a girl that is only 16 years old now.‖
At the end of the hearing, the court ruled: ―I think there is due
diligence. . . . [I]n terms of what the People did and the way it ended up, resulting
in the contact made in August, the fact she showed up on the warrant to attend the
lineup, her cooperativeness other than the apparent problems she had with her
father . . . . I don‘t know what else they could have done other than your saying
she should have been kept in custody from August. In light of the way it was
presented, I don‘t think the D.A.‘s decision to let her go was unreasonable.‖
Defendant makes two arguments. First, he argues that on August 19, 1994,
the prosecution should have asked the juvenile court to keep Rosa in custody until
her appearance at trial. Second, he argues that Abram‘s efforts to locate her were
insufficient. We disagree on both points.
―[W]hen the trial court errs in releasing a material witness from custody,
which results in the witness becoming unavailable for testimony, and the
prosecution supports that release, the prosecution may be held to have not
exercised reasonable diligence.‖ (Bunyard, supra, 45 Cal.4th at p. 849.) ―The
decision to detain in custody a material witness involves weighing important
competing rights. . . . [¶] . . . The unjustified deprivation of a material witness‘s
liberty is a violation of the due process clauses of the federal and state
Constitutions.‖ (Id. at p. 849-850.) Thus, the defendant‘s right to confront
witnesses must be balanced ―against the substantial due process right of the
witness, who has not been charged with a crime, to not be unreasonably
incarcerated.‖ (Id. at p. 851.) ―To have a material witness who has committed no
crime taken into custody, for the sole purpose of ensuring the witness‘s
appearance at a trial, is a measure so drastic that it should be used sparingly.‖
(People v. Cogswell (2010) 48 Cal.4th 467, 477.)

38
Under the circumstances, we agree with the trial court that the prosecution
was not required to try to keep Rosa in custody until she testified. The trial court
credited the prosecution‘s statements that Rosa had been cooperative, and that it
did not believe it would be difficult to obtain her trial testimony. Defendant
argues this asserted belief ―was at best unreasonable and more likely
disingenuous.‖ But the evidence supports the court‘s finding regarding what the
prosecution actually believed, and we will defer to it. Whether, as the trial court
also found, the belief was reasonable under the circumstances is something we
will decide independently.
Defendant notes, as he did in the trial court, the prosecution‘s very different
attitude during the preliminary hearing, when it informed the court it was having
difficulty locating Rosa and took steps to ensure her testimony. But the two
situations are not necessarily inconsistent. Before she testified at the preliminary
hearing, the prosecutors presumably had little experience with her and, given the
difficulties in locating her and her statements to them, they were reasonably
concerned that she might not cooperate. But she did testify. In the interim
between the preliminary hearing and the trial, they had numerous contacts with
Rosa. The prosecutors said she was consistently cooperative, and the record
provides no reason for this court to conclude otherwise. She did in fact honor the
subpoena to appear at a live lineup regarding the new fourth suspect. Defendant
argues that her appearance at that time is irrelevant. On the contrary, her
cooperation was highly relevant to whether the prosecution reasonably believed
she would appear at trial.
It is true that the record reflects Rosa‘s unstable lifestyle. She was a
runaway and lived at various locations. But, as the prosecution believed, the fact
she had recently given birth might have lent her more stability. Moreover, the risk
that, despite her apparent cooperation, she might not appear to testify had to be

39
balanced against her liberty interest. Although there was an unrelated juvenile
matter against her, she was charged with no crime in this case, and no evidence
exists that she committed any. The necessary period of incarceration to ensure her
testimony would have been lengthy. Defendant notes that she had been
subpoenaed for the date trial was scheduled to begin, September 7, 1994, which
was less than three weeks after her release from juvenile court custody. But the
evidence portion of trial would not begin for weeks after that. The due diligence
hearing was held on October 13. Presumably, if Rosa had been in custody, she
could have testified earlier than that. But the evidence portion of trial did not
begin until September 26, 1994. Even if she were to testify that first day, she
would have been in custody for some 38 days for the sole purpose of ensuring her
testimony. Especially given the fact that Rosa had a several-month-old baby at the
time, we find reasonable the prosecution‘s decision not to adopt this ―drastic‖
measure that ―should be used sparingly.‖ (People v. Cogswell, supra, 48 Cal.4th
at p. 477.)
We also agree with the trial court that the prosecution exercised due
diligence in trying to locate Rosa after her August 19, 1994 release in the juvenile
proceeding. ―[D]iligence has been found when the prosecution‘s efforts are
timely, reasonably extensive and carried out over a reasonable period.‖ (Bunyard,
supra, 45 Cal.4th at p. 856.) Defendant argues the prosecution‘s efforts were too
little and too late. But beginning the search on August 31, only 11 days after her
release, was reasonable. Investigator Abram made reasonable efforts to try to
locate her, including pursuing several leads and trying to withhold her welfare
check to motivate her to contact him. Defendant suggests other measures Abram
might have taken, such as trying to contact the reported father of Rosa‘s baby, who
might have been in prison at the time. Additional measures can always be
suggested. ―But these suggestions do ‗not change our conclusion that the

40
prosecution exercised reasonable diligence. ―That additional efforts might have
been made or other lines of inquiry pursued does not affect this conclusion.
[Citation.] It is enough that the People used reasonable efforts to locate the
witness.‖ ‘ ‖ (People v. Valencia, supra, 43 Cal.4th at p. 293.)
Accordingly, we conclude the trial court did not err in admitting Rosa‘s
preliminary hearing testimony.

2. Other Contentions Regarding Rosa S.’s Testimony
Defendant makes two additional arguments regarding Rosa S.‘s preliminary
hearing testimony.

a. Admission of Hearsay Statement
After the court ruled that Rosa S.‘s preliminary hearing testimony was
generally admissible at trial, the court and parties discussed that testimony in
detail to determine which specific portions were admissible. The court excluded
as hearsay Rosa‘s testimony that Navarro had told her that defendant ―had shot a
cop,‖ and that Navarro and defendant each purchased a car. It also ruled that
statements by Navarro indicating that he had committed robberies was admissible
only against Navarro, and it so admonished the jury.
During the actual reading of the preliminary hearing testimony, the
prosecutor inadvertently included Rosa‘s testimony that Navarro had told her that
defendant ―had shot the cop,‖ for which he apologized outside the jury‘s presence.
The court granted defendant‘s motion to strike that testimony and admonished the
jury to disregard it.
In addition, a taped statement Rosa made to the police the day Navarro was
arrested was played over defendant‘s objection at both the preliminary hearing and
again at trial as either prior inconsistent or prior consistent statements. (As
regarding defendant, that statement was consistent with her preliminary hearing

41
testimony.) It appears this statement was not redacted to exclude Navarro‘s
hearsay statements. Accordingly, the jury heard the following. Rosa said that
defendant had told her that he had shot the police officer. Additionally, she said,
―And [Navarro] told me, all of them know that.‖ Later, she said that defendant
and Navarro had each bought a car with money ―from another store robbery‖
about three or four months previously in which they each obtained about $14,000.
Defendant contends these statements from the taped statement were hearsay
and not admissible against him. He argues that admitting these statements
violated his constitutional right to confront witnesses, specifically his right to
confront Navarro. (See Bruton v. United States (1968) 391 U.S. 123; People v.
Aranda (1965) 63 Cal.2d 518.) The record is not entirely clear, but it appears the
source of the information about ―another store robbery‖ was Navarro, not
defendant, and we will assume that is the case. It is also not clear whether the
court intended to admit these hearsay statements from the taped statement after it
had excluded comparable statements from Rosa‘s preliminary hearing testimony,
or whether the statements were simply overlooked in the complex and lengthy
discussions over which portions of the preliminary hearing testimony to admit and
which to exclude.
What is clear, however, is that any error in admitting these portions of the
taped statement was harmless beyond a reasonable doubt. (People v. Livingston
(2012) 53 Cal.4th 1145, 1159.) Because Rosa specifically testified that defendant
told her he shot the police officer, her statement that Navarro had said the same
thing could not have been prejudicial. Her statement that defendant had
committed a previous robbery was also nonprejudicial. The jury heard
overwhelming evidence that defendant had committed not one but six previous
robberies. Indeed, defendant conceded his identity regarding some of the
robberies. For example, in addition to the many eyewitness identifications, he left

42
behind one of his shoes when fleeing the Ofelia‘s Restaurant robbery, and jewelry
from some of the robberies was found concealed on his person when he was
arrested. Given this evidence, Rosa‘s mention of a previous store robbery was
innocuous.

b. Limitation on Cross-examination
At the preliminary hearing, defendant cross-examined Rosa S. at length.
When she was found in the car with Navarro on May 31, 1992, she was arrested
and charged in an unrelated matter in Pomona. Much of the cross-examination
concerned this other matter and whether she was promised or expected any benefit
in that matter for her testimony in this case, generally eliciting denials of any such
promise or expectation. She said that, other than that she would have to testify,
she did not discuss this case with those involved in the Pomona case, including her
Pomona attorney. Counsel also elicited testimony that before her preliminary
hearing testimony, she had discussed this case with the two prosecutors and
Deputy Perales, the investigator in this case. Additionally, defense counsel
elicited from her that she had refused to speak with him when she had the
opportunity to do so, and that she had initially lied to the police and court about
her name and age.
When Rosa‘s preliminary hearing testimony was read to the jury, the jury
was also informed that she had been given immunity for her testimony regarding
any nonviolent crimes; that when she invoked her Fifth Amendment right to
remain silent, the court ordered her to testify under the grant of immunity; that she
was in custody when she testified; and that, after her testimony, she had been
released from her custody status regarding this case.
At the preliminary hearing, the court sustained prosecutorial objections to
questions regarding who else she had talked to about the Pomona case and who

43
else other than her attorney she had talked to in the ―Van Nuys courtroom,‖
apparently referring to the courtroom involved in this case. Defendant contends
this limitation violated his constitutional right to confront and cross-examine Rosa.
A criminal defendant‘s constitutional right to confront witnesses is violated
when the court prohibits the defendant from conducting otherwise appropriate
cross-examination designed to show a prototypical kind of bias on the witness‘s
part, and thereby provide the jury with facts from which it could appropriately
draw inferences regarding the witness‘s reliability. But not every restriction on a
defendant‘s cross-examination violates the Constitution. The trial court retains
wide latitude to restrict repetitive, prejudicial, confusing, or marginally relevant
cross-examination. Unless the defendant can show that the prohibited cross-
examination would have created a significantly different impression of the
witness‘s credibility, the trial court‘s exercise of discretion to restrict cross-
examination does not violate the constitutional right of confrontation. (Delaware
v. Van Arsdall (1986) 475 U.S. 673, 680; People v. Capistrano (2014) 59 Cal.4th
830, 866; People v. Virgil (2011) 51 Cal.4th 1210, 1251.)
We see no constitutional violation in the slight restriction the preliminary
hearing court imposed. Defense counsel was given wide latitude to cross-examine
Rosa, including whether and to what extent she expected or hoped that her
testimony would benefit her in the Pomona case. Counsel elicited that Rosa spoke
with the investigators and prosecutors in this case, who were the ones who would
be expected to offer her benefits for her testimony, if anyone did. She testified
that she did not discuss this case with the people in Pomona (other than regarding
that she would have to testify). Further testimony regarding exactly who she
spoke with in Pomona would not significantly affect the credibility of this
testimony.

44
Moreover, no significant reason existed for the jury to doubt Rosa‘s general
credibility. Her testimony regarding defendant was consistent with her initial
taped statement. The main thrust of that testimony was that she heard defendant
say he shot the police officer, something a 13-year-old girl would be expected to
understand and remember. Although she originally lied about her age and name,
was a runaway, and refused to discuss the case with the defendant‘s attorney, none
of these circumstances would likely provide a motive to lie about defendant.
Perhaps most importantly, her testimony was entirely consistent with the
remaining evidence. The evidence established that one of the gunman in the
George‘s Market robbery shot and killed Officer Hoglund, and that defendant was
one of those gunman (among other items of evidence, his image was captured on
the videotape). So the only remaining question regarding who shot Officer
Hoglund was whether defendant was that gunman. Defendant looked nothing like
the other gunmen and wore a distinctive striped shirt, unlike the shirts the other
gunmen wore. Accordingly, the jury could readily conclude that Medina was not
mistaken in his testimony that defendant was the gunman who shot Officer
Hoglund and pointed the gun at him.
The ballistics evidence also strongly corroborated Rosa‘s testimony. One
gun was fired at all three robberies that involved gunfire: those at the Woodley
Market, Ofelia‘s Restaurant, and George‘s Market. Many witnesses identified
defendant as the shooter at Ofelia‘s Restaurant (where the shooter left behind a
shoe that the parties stipulated belonged to defendant) and at Woodley‘s Market,
thus strongly showing that defendant was the one who fired that weapon on all
three occasions.
In light of all this, the prohibited cross-examination would not have
produced a significantly different impression of Rosa‘s credibility and,
accordingly, it did not violate defendant‘s right to confront her.

45
3. Admission of Evidence of Uncharged Crime
Over defense objection, and after a hearing, the court admitted evidence of
the uncharged incident at Rod‘s Coffee Shop, during which defendant was stopped
while driving a car containing a stun gun. Defendant contends the court erred in
violation of various constitutional rights. We conclude the court acted within its
discretion.
When the court first considered the matter, it ruled that if defendant
conceded the question of identity regarding the Casa Gamino robbery (the one
during which the stun gun was used), it would disallow evidence of the incident at
Rod‘s Coffee Shop because ―the prejudice outweighs the probative value where
[identification] is no longer in issue at the Casa Gamino robbery.‖ But it invited
the prosecution to revisit the question if, in fact, defendant did dispute identity
regarding that robbery.
Later, when it became apparent that defendant was in fact challenging his
identity as the one who used the stun gun during the Casa Gamino robbery, the
court admitted evidence of the incident at Rod‘s Coffee Shop. It explained that
the stun gun ―is so unique and so unusual. In fact, in all my years in the justice
system, whichever side of the bench I was on, I have never seen an electrical
device being used. . . . I don‘t think it matters that it wasn‘t the same one, but it is
so unique that I think under all the case law that permits [evidence under Evidence
Code section 1101] where it is material, there‘s no other rule that would not permit
it, and under [Evidence Code section] 352 I think the probative value far
outweighs any prejudice or confusion that arises from it.‖ It gave a limiting
instruction regarding how the jury could consider the evidence.
Evidence of other crimes is generally not admissible merely to show a
criminal disposition, but it may be admitted if relevant to show a material fact
such as identity. (Evid. Code, § 1101; cf. Evid. Code, § 1108 [special rule

46
concerning evidence of sex offenses].) The admissibility of such evidence
depends on (1) the materiality of the facts to be proved; (2) the tendency of the
evidence to prove those facts; and (3) the existence of a rule or policy, such as that
of Evidence Code section 352, requiring exclusion of the evidence. (People v.
Kelly, supra, 42 Cal.4th at p. 783.) ―Because substantial prejudice is inherent in
the case of uncharged offenses, such evidence is admissible only if it has
substantial probative value. [Citation.] This determination lies within the
discretion of the trial court.‖ (Ibid.) Here, the court admitted evidence of the
incident at Rod‘s Coffee Shop primarily on the question of defendant‘s identity as
the one who used the stun gun during the Casa Gamino robbery. ―For identity to
be established, the offenses must share common features that are so distinctive as
to support an inference that the same person committed them.‖ (People v. Scott
(2011) 52 Cal.4th 452, 472.)
As the trial court found, possessing a stun gun was unusual, especially in
1990 and 1992. Because the police seized the first stun gun in 1990, obviously a
different one was used in the 1992 Casa Gamino robbery. But the evidence
showed that both were functioning and, when activated, emitted similar blue
sparks. The narrow question on which the evidence was most probative was
which of the Casa Gamino robbers used the stun gun. The facts that defendant
participated in activity that a jury could reasonably conclude was a prelude to a
robbery similar to the ones he later committed, and that a stun gun was in his car,
support a reasonable inference that defendant was that person. No evidence
connected any of the other robbers to a stun gun. Whether defendant wielded the
stun gun was certainly material at trial. Moreover, the evidence was not
particularly prejudicial. Because no robbery actually occurred, the uncharged
incident was not nearly as inflammatory as the charged crimes. The court

47
therefore acted within its discretion in finding the probative value outweighed any
undue prejudice.
Defendant also argues that, because the gun was under the passenger seat
and he was the driver, the evidence was insufficient to support a finding by a
preponderance of the evidence that he had possessed the stun gun. (See People v.
Carpenter (1997) 15 Cal.4th 312, 382 [preponderance of the evidence is the
proper standard for uncharged crimes].) But the jury could have readily inferred
that defendant, the driver, who appeared to be acting in tandem with the others in
the car, knew of the gun and had control over it. We see no error.

4. Sufficiency of the Evidence as to One of the Robberies
Defendant contends the evidence was insufficient to support his conviction
for robbing Arturo Flores at the Mercado Buenos Aires market. We agree and
reverse defendant‘s conviction and sentence for that robbery.
To decide whether the evidence is sufficient to support a jury verdict, ―a
reviewing court reviews the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable, credible,
and of solid value such that a reasonable jury could find the defendant guilty
beyond a reasonable doubt.‖ (People v. Rountree (2013) 56 Cal.4th 823, 852-
853.)
Flores testified at the preliminary hearing that one of the gunmen took his
wallet. However, he could not be located to testify at trial and, after a hearing, the
court ruled that the prosecution had not exercised due diligence to obtain his
presence at trial. Accordingly, the court refused to admit his preliminary hearing
testimony. No witness who actually testified at trial observed Flores‘s property
being taken. Witnesses testified that the four persons Flores was with in the
bathroom were robbed: Manuel Rodriguez, Paul Rodriguez, Clelia Rodriguez,

48
and Dario de Luro. Additionally, Manuel Rodriguez testified that he ―think[s]‖
others, which probably included Flores, had been robbed earlier. This evidence
would support a conclusion that Flores was probably also a robbery victim. But
absent any testimony that someone observed property being taken from Flores or
other evidence that he was missing property, we do not believe the evidence
supports a conclusion beyond a reasonable doubt that he was a robbery victim.
Accordingly, we reverse that robbery conviction, count 21 in the
information. In addition to entering a judgment of death on the murder counts, the
court imposed, and then stayed, a total determinate prison sentence of 54 years six
months. Of this, one year (one-third the midterm of three years) was imposed for
the Flores robbery. In light of the reversal of that conviction, we reduce the
determinate prison sentence to 53 years six months.

5. Contentions Regarding the Attempted Murder Charge
The jury found defendant guilty of attempting to murder Luis Enrique
Medina shortly after he shot Officer Hoglund to death. Defendant challenges the
conviction in two regards. First, he argues that parts of Medina‘s testimony
should have been stricken as speculative. Second, he argues that the evidence was
insufficient to support the conviction.
The attempted murder charge was based largely, although not entirely, on
Medina‘s testimony. On direct examination, Medina, a former police officer
familiar with handguns, testified that when defendant aimed his gun at him, he
could tell the gun was empty because the slide was open. When asked whether
that was the position the gun was in when defendant pointed it at him, he
responded, ―Yes, but I believe he wanted to put another clip inside.‖ The court
sustained defendant‘s motion to strike that statement on the ground it was

49
speculative. After Medina further testified that he had seen defendant‘s finger on
the trigger, the testimony moved to other areas.
The subject was revisited on redirect examination. The prosecutor asked
Medina whether he saw defendant pull the trigger. He responded, ―I was unable to
notice whether he pressed the trigger, but I believe that he tried to do that.‖ The
court sustained defendant‘s motion to strike the statement on the ground it was
speculative. The prosecutor then asked whether Medina saw any movement or
what he thought were attempts to pull the trigger. Medina responded, ―I think he
was trying to put another clip there.‖ Again, the court sustained defendant‘s
motion to strike the statement on the ground it was speculative. The prosecutor
then asked about the witness‘s preliminary hearing testimony, in which he agreed
he had testified that defendant ―kept pulling, but the gun didn‘t have any more
bullets in it.‖ Medina agreed that his memory was better at the time of the
preliminary hearing.
On recross-examination, defense counsel asked the witness about the
apparent change in his testimony regarding whether he saw defendant‘s finger
moving. He asked, ―Now, yesterday, you didn‘t tell us that his finger was moving
and today you are. Why is there a difference?‖ Medina responded, ―There is no
change in my testimony. What I said is that he was aiming the gun at me and I
was just looking at the gun. I can‘t really know all the things he did with his
hands. It‘s impossible that I be able to relate all the details. I mean, you think that
one can do that. I was just thinking about what was going to happen to me.‖ He
reiterated that defendant ―was trying to shoot, but there were no bullets in the gun.
So he tried to change the clip. Well, it seems logical if somebody is pressing the
trigger and there is no bullets inside the gun, then one tries to load the gun again.‖
The court overruled defendant‘s motion to strike this testimony as speculative.

50
Defense counsel asked Medina whether he saw defendant put a new clip in
the gun. He responded, ―No, I didn‘t say that he changed it. I said that he wanted
to do so. But then he took off running because they were calling him, telling him
to get out of that place.‖ When defense counsel suggested Medina was trying to
read defendant‘s mind, he responded that defendant ―made a gesture as to remove
the clip that was there.‖ Pursuing the matter, defense counsel asked whether the
witness had seen defendant taking out the clip. He responded, ―No. But he was
trying to do so.‖ He also said, ―If his friends hadn‘t been calling him, I believe he
would have done it.‖ Defense counsel renewed his motion to strike the testimony,
which the court denied.
Later, outside the jury‘s presence, the trial court explained its denial of
defendant‘s motion to strike the testimony as speculative: ―The reason I denied
the objection is because I think we have a language problem, number one. So I
don‘t think the examination is as precise as we could ever get it with English.
[Medina testified through a Spanish language interpreter.] And, secondly, he
did . . . say specifically he tried to change the clip, and . . . he referred to a
gesture. . . . I think it goes beyond mere speculation.‖ Because of this, the court
believed it was ―something for the jury to figure out, not to me.‖ It summarized:
―Today, he said he tried to change the clip. There was a gesture. That‘s beyond
just a mere speculation . . . . But, anyway, I think it is enough for the jury to crank
out [sic] and not me to take it away from them.‖
Defendant argues that the testimony about his wanting to change the clip
and his gesture should have been stricken as speculative. (People v. Watkins,
supra, 55 Cal.4th at p. 1023 [inferences may not be based on speculation].) The
court initially sustained defendant‘s objections on this ground, but it overruled
later objections after it permitted both parties to ask probing questions that elicited
answers clarifying that Medina‘s testimony was based on his observations, not

51
speculation. Although he could not, or at least did not, articulate it further, he
testified that defendant made a gesture that to Medina indicated he was about to
replace the clip.
This part of Medina‘s testimony was essentially lay opinion testimony.
― ‗A lay witness may express opinion based on his or her perception, but only
where helpful to a clear understanding of the witness‘s testimony (Evid. Code,
§ 800, subd. (b)), ―i.e., where the concrete observations on which the opinion is
based cannot otherwise be conveyed.‖ [Citation.]‘ (People v. Hinton (2006) 37
Cal.4th 839, 889.) Such a situation may arise when a witness‘s impression of
what he or she observes regarding the appearance and demeanor of another rests
on ‗subtle or complex interactions‘ between them (ibid.) or when it is impossible
to otherwise adequately convey to the jury the witness‘s concrete observations.
(People v. Melton (1988) 44 Cal.3d 713, 744; People v. Manoogian (1904) 141
Cal. 592, 595-597.) A lay witness generally may not give an opinion about
another person‘s state of mind, but may testify about objective behavior and
describe behavior as being consistent with a state of mind. (People v. Chatman
(2006) 38 Cal.4th 344, 397.) . . . A trial court‘s ruling on the admission or
exclusion of evidence is reviewed for abuse of discretion.‖ (People v. DeHoyos
(2013) 57 Cal.4th 79, 130-131; see People v. Seumanu (2015) 61 Cal.4th 1293,
1310-1311.)
Exactly what occurred in the few seconds during which defendant pointed
the gun at Medina was subtle and complex, and the court could reasonably
conclude it would be impossible to convey Medina‘s concrete observations other
than through the testimony it permitted. In sum, the court acted within its
discretion in concluding that Medina‘s testimony was not speculative but based on
his observations, and leaving it to the jury to evaluate it.

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Defendant interprets the court‘s mention of what it believed to be a
―language problem‖ as applying a ―less stringent standard to testimony given
through a Spanish interpreter‖ than given to other witnesses, and he argues that
doing so violated his right to equal protection of the laws. We see no error in the
court‘s comment regarding the difficulty of testifying through an interpreter.
Ultimately, the same standards apply to all witnesses, and the court did not suggest
otherwise.
Defendant also argues the evidence was insufficient to support the jury‘s
attempted murder verdict because it was insufficient to demonstrate his intent to
kill Medina. ―Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.‖ (People v. Lee (2003) 31 Cal.4th 613, 623.) Because direct evidence of a
defendant‘s intent rarely exists, intent may be inferred from the circumstances of
the crime and the defendant‘s acts. (People v. Smith (2005) 37 Cal.4th 733, 741.)
Here, the evidence was ample to support the jury‘s finding. Medina
testified that defendant placed his finger on the trigger when he pointed the gun at
him and then, when he realized the gun was empty, made a gesture to change the
clip. Defendant claims Medina ―embellished‖ his testimony. But it is for the jury,
not a reviewing court, to determine credibility. (People v. Smith, supra, 37 Cal.4th
at p. 739.) Both the prosecution and defendant questioned Medina closely on his
exact observations. The jury was entitled to believe him. Moreover, Medina‘s
testimony was not the only evidence supporting a finding of intent to kill. Only
seconds before he pointed the gun at Medina, defendant had shot Officer Hoglund
three times, killing him. Medina was only about eight feet from defendant and, so
the jury could reasonably have found, was in his way when defendant pointed the
gun at him, just as Officer Hoglund had been in defendant‘s way. All of this
evidence supports defendant‘s conviction for attempting to murder Medina.

53
6. Refusal to Investigate a Juror’s Alleged Reaction to Testimony
Among the portions of Rosa S.‘s preliminary hearing testimony read to the
jury was the following: Defendant and Navarro ―were going to go pick up some
drugs and sometimes the black guys and the cops would get in their way. That‘s
why they took guns with them.‖
Shortly after this testimony, defendant‘s attorney asked to approach the
bench. Outside the jury‘s presence, counsel stated that during the prosecution‘s
opening statement referring to this testimony, Juror M.L., an African-American,
―made a very adamant up and down motion with her head.‖ He said he was
worried ―that she had made up her mind right then, and that is all she needed to
hear was there was some kind of violence against blacks. And her gesturing with
her head appeared to be in response to that statement during the opening
statement. Now that the same line was just read to the jury, [M.L.] did the exact
same thing, a very adamant up and down motion with her head. I don‘t have any
doubt in my mind she has already made up her mind what she is going to do with
the penalty phase and guilt phase because of the perception there is violence
against blacks.‖ Counsel for codefendant Navarro said he made similar
observations. The court stated it did not see it.
The court noted that there were ―no blacks involved as witnesses, victims,
or defendants in the case other than she is a black juror.‖ Counsel asked the court
to hold a hearing ―about whether or not she has already made up her mind and
decide if you want to throw her out.‖ The court denied the request, noting that
―we are dealing with pure speculation.‖ It explained, ―I don‘t think anything is
established by an adamant head shake. I see jurors nodding or sitting up or dozing
or looking off. If I had to stop and have a hearing every time I saw a reaction by a
juror, we would never get through a trial.‖ It added, ―I don‘t think it would at all
be appropriate to have a hearing.‖

54
Later, again outside the jury‘s presence, one of the prosecutors stated she
was watching M.L. after counsel made his objection: ―She was rocking, just like
rocking back and forth. I did not see any nodding, just more of a nervous habit.
She was rocking during the entire testimony.‖ Counsel for Navarro stated that that
was different from what they had observed. Counsel for defendant stated that a
paralegal had observed the same thing during the opening statement. He added,
―After we approached and had the discussion about her, she mostly stared at me,
and I think she figured out that we were talking about her.‖ The court observed,
―She probably did . . . . We all looked over at her when we were standing at
side . . . .‖ Counsel for defendant said he did not look at her.
Later still, after the parties concluded their closing arguments to the jury,
the court stated the following outside the jury‘s presence: ―I have been sensitive
to [M.L.‘s] reactions to any reference to blacks or cops getting in the way of the
guns. And I noted the rest of that day where you had your concerns expressed she
continued to rock in her chair. And every time she rocked, her head nodded. And
I saw nodding throughout the rest of the afternoon. Yesterday, when [one of the
prosecutors] twice in his argument mentioned that same statement, there was
absolutely no reaction from her. And today there was absolutely no reaction from
her. And she has continued to rock and nod. I am not saying there may not have
been a reaction, but I‘m not sure that we can assume her state of mind, and I want
you to know that I have been watching it, that every specific time that issue came
up I watched her and have seen absolutely no reaction.‖
Defendant argues the court‘s failure to investigate M.L.‘s perceived
reaction to the testimony violated various of his constitutional rights. We
disagree. ―[N]ot every incident involving a juror‘s conduct requires or warrants
further investigation. ‗The decision whether to investigate the possibility of juror
bias, incompetence, or misconduct — like the ultimate decision to retain or

55
discharge a juror — rests within the sound discretion of the trial court.
[Citation.] . . . [¶] As our cases make clear, a hearing is required only where the
court possesses information which, if proven to be true, would constitute ―good
cause‖ to doubt a juror‘s ability to perform his duties and would justify his
removal from the case. [Citation.]‘ ‖ (People v. Cleveland (2001) 25 Cal.4th 466,
478; accord, People v. Manibusan (2013) 58 Cal.4th 40, 53.)
We find no abuse of discretion. Unlike this court, the trial court was in a
position to observe the juror‘s demeanor. It took defendant‘s allegations seriously
and carefully observed the juror‘s later reactions. Based on these observations, it
properly refused to question the juror. We have cautioned that the ―very act of
questioning deliberating jurors about the content of their deliberations could affect
those deliberations.‖ (People v. Cleveland, supra, 25 Cal.4th at p. 476.) Similar
concerns exist midtrial. The very act of questioning M.L. about her reactions to
testimony would tend to suggest she had done something wrong, which could
adversely affect her view of the case.

7. Claims of Instructional Error
Defendant contends the court committed three instructional errors.

a. Instruction Regarding Evidence of Uncharged Crime
Before evidence of the incident at Rod‘s Coffee Shop was presented to the
jury, the court instructed the jury on the limited purpose for which it could
consider the evidence. The court repeated the limiting instruction as part of its
general instructions after all of the evidence was presented.
Specifically, the court instructed the jury it could consider the evidence
only against defendant and not against his codefendants (who were not implicated
in the incident). It also instructed that the evidence could not be considered ―to
prove that the defendant is a person of bad character or that he has a disposition to

56
commit crimes.‖ Instead, the jury could consider the evidence ―only for the
limited purpose of determining if it tends to show: The identity of the person who
committed the crime, if any, of which he is accused; that the defendant had
knowledge or possessed the means that might have been useful or necessary for
the commission of the crime charged; and the crime charged is a part of the larger
continuing plan, scheme, or conspiracy.‖ The court reiterated that the jury is ―not
permitted to consider such evidence for any other purpose.‖ It also instructed the
jury it could not consider the evidence unless it found by a preponderance of the
evidence that defendant committed the uncharged crime, and it defined this
standard of proof.
Defendant contends the instruction was erroneous in two respects. First, he
contends the court should have limited the jury‘s consideration of the evidence to
specified counts. He does not state exactly what counts these might be, but
presumably he would limit consideration to only those counts involving use of the
stun gun, or possibly all counts arising out of the Casa Gamino robbery.
The argument is not cognizable on appeal because defendant did not
request the court to limit use of the evidence in this way. The court has no sua
sponte duty to give a limiting instruction. (Evid. Code, § 355; People v.
Hernandez (2004) 33 Cal.4th 1040, 1051.) Indeed, a criminal defendant might not
want the court to pinpoint the exact counts to which the evidence was relevant.
(Hernandez, at p. 1053.)
The contention also lacks merit. The evidence was admitted primarily for
its relevance regarding the Casa Gamino robbery. Indeed, the court had initially
indicated it would exclude the evidence if defendant conceded identity regarding
that robbery. But the court did not have to explain this to the jury. In multiple-
count cases, some of the evidence will primarily, sometimes exclusively, be
relevant as to one or more, but not all, of the counts. For example, the testimony

57
that one of the gunmen during the Outrigger Lounge robbery hit John Tucker with
a shotgun, breaking two ribs, had little, if any, relevance to the charges arising out
of the other robberies. But the court does not normally identify for the jury the
counts to which the evidence is relevant. The jury can determine that for itself.
Once the evidence of the Rod‘s Coffee Shop incident was admitted,
whatever prejudicial effect there might have been was realized, and the jury could
consider it for any proper purpose. (People v. Hernandez, supra, 33 Cal.4th at p.
1053; People v. Carpenter, supra, 15 Cal.4th at p. 382.) The court carefully
delineated what those proper purposes were. Doing so provided sufficient
guidance.
Second, defendant contends that, by instructing the jury it could consider
the evidence only if it found by a preponderance of the evidence that he committed
the crime, and then defining this standard of proof, the court lowered the
prosecution‘s burden of proof. We have repeatedly rejected this contention. The
court also gave the jury the full panoply of standard instructions regarding the
prosecution‘s burden of proof and the reasonable doubt standard. These
instructions made clear to the jury that the prosecution had the burden of proving
all ultimate facts beyond a reasonable doubt. (People v. Virgil, supra, 51 Cal.4th
at pp. 1259-1260; People v. Foster (2010) 50 Cal.4th 1301, 1347-1348.)

b. Instruction on Witness Identification
The court gave CALJIC No. 2.92, the standard instruction regarding how
the jury should consider eyewitness identification evidence. It said the jury should
consider any factor that bears on the accuracy of the identification including, but
not limited to, specified factors. One of the specified factors was ―the extent to

58
which the witness is either certain or uncertain of the identification.‖7 (See
CALCRIM No. 315 [among other factors, the jury should consider ―[h]ow certain
was the witness when he or she made an identification‖].) Citing scientific studies
that conclude there is, at best, a weak correlation between witness certainty and
accuracy, defendant argues the court erred in instructing the jury it could consider
the certainty factor.
The Attorney General argues the claim is forfeited because defendant did
not request that CALJIC No. 2.92 be modified. We agree. If defendant had
wanted the court to modify the instruction, he should have requested it. The trial
court has no sua sponte duty to do so. (People v. Ward (2005) 36 Cal.4th 186,
213; People v. Sullivan (2007) 151 Cal.App.4th 524, 561.) This conclusion is
especially forceful here because, under the facts, it is not clear defendant would

7 As given, the entire instruction pursuant to CALJIC No. 2.92 was as
follows: ―Eyewitness testimony has been received in this trial for the purpose of
identifying the defendant as the perpetrator of the crimes charged. In determining
the weight to be given eyewitness identification testimony, you should consider
the believability of the eyewitness as well as other factors which bear upon the
accuracy of the witness‘s identification of the defendant, including but not limited,
to any of the following:
―The opportunity of the witness to observe the alleged criminal act and the
perpetrator of the act; the stress, if any, to which the witness was subjected at the
time of the observation; the witness‘s ability, following the observation, to provide
a description of the perpetrator of the act; . . . the extent to which the defendant
either fits or does not fit the description of the perpetrator previously given by the
witness; the cross-racial or ethnic nature of the identification; the witness‘s
capacity to make an identification; evidence relating to the witness‘s ability to
identify other alleged perpetrators of the criminal act; whether the witness was
able to identify the alleged perpetrator in a photographic or physical lineup; the
period of time between the alleged criminal act and the witness‘s identification;
whether the witness had prior contacts with the alleged perpetrator; the extent to
which the witness is either certain or uncertain of the identification; whether the
witness‘s identification is in fact a product of his or her own recollection; and any
other evidence relating to the witness‘s ability to make an identification.‖

59
want the modification. This case involved many identifications, some certain,
some uncertain. Defendant would surely want the jury to consider how uncertain
some of the identifications were, as CALJIC No. 2.92 instructs. And defendant
might be concerned about the difficulty of instructing the jury to consider how
uncertain an identification was without also, at least implicitly, suggesting it
should also consider how certain it was. Thus, in this case, it is unclear that
defendant would want the court to delete the certainty or uncertainty factor from
the instructions.
We also find no error and no prejudice. Studies concluding there is, at best,
a weak correlation between witness certainty and accuracy are nothing new. We
cited some of them three decades ago to support our holding that the trial court has
discretion to admit expert testimony regarding the reliability of eyewitness
identification. (People v. McDonald (1984) 37 Cal.3d 351, 369.) In People v.
Wright (1988) 45 Cal.3d 1126, 1141, we held ―that a proper instruction on
eyewitness identification factors should focus the jury‘s attention on facts relevant
to its determination of the existence of reasonable doubt regarding identification,
by listing, in a neutral manner, the relevant factors supported by the evidence.‖
We specifically approved CALJIC No. 2.92, including its certainty factor.
(Wright, at pp. 1144, 1166 [appendix].) We have since reiterated the propriety of
including this factor. (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.)
Defendant correctly notes that some courts have disapproved instructing on
the certainty factor in light of the scientific studies. (E.g., State v. Mitchell (Kan.
2012) 275 P.3d 905; Commonwealth v. Santoli (Mass. 1997) 680 N.E.2d 1116.)
But, in a case like this involving uncertain as well as certain identifications, it is
not clear that even those cases would prohibit telling the jury it may consider this
factor. As the Santoli court noted, ―It is probably true that the challenged
instruction has merit in so far as it deals with the testimony of a witness who

60
expressed doubt about the accuracy of her identification . . . .‖ (Santoli, at p.
1121.) Any reexamination of our previous holdings in light of developments in
other jurisdictions should await a case involving only certain identifications.
We also see no prejudice to defendant. The instruction cited the certainty
factor in a neutral manner, telling the jury only that it could consider it. It did not
suggest that certainty equals accuracy. In this case, telling it to consider this factor
could only benefit defendant when it came to the uncertain identifications, and it
was unlikely to harm him regarding the certain ones.
Moreover, the eyewitness identifications were far from the only evidence
connecting defendant to the crimes. He was caught on videotape robbing
George‘s Market. He literally ran out of his shoe after robbing Ofelia‘s
Restaurant. The ballistics evidence, together with other evidence, strongly showed
that defendant was the gunman who fired shots during three of the robberies.
Evidence connected him to a stun gun like the one used in the Casa Gamino
robbery. Jewelry from some of the robberies was found concealed on his person
when he was arrested. His car was connected to some of the robberies. It is true
that not all of the seven robberies had evidence connecting defendant other than
eyewitness identifications. But the similarity of the takeover robberies and the
general descriptions of some of the gunmen strongly indicated the same group
committed all of the robberies. Defendant was clearly a leader of that group, and
he had a distinctive appearance among the robbers. The many identifications,
together with the remaining evidence, strongly showed that defendant was present
at each of the robberies. It is not reasonably probable defendant would have
obtained a more favorable result had the trial court deleted the certainty factor.
(People v. Ward, supra, 36 Cal.4th at p. 214.) Indeed, we would find giving the
instruction harmless beyond a reasonable doubt.

61
c. Reasonable Doubt Instructions
Defendant contends that a series of standard instructions the court gave
undermined the reasonable doubt standard. (CALJIC Nos. 2.01, 2.21.1, 2.21.2,
2.22, 2.27, 8.83.) ―[W]e have rejected this precise argument on occasions too
numerous to recite. [Citations.] As we have explained, each of these instructions
‗is unobjectionable when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the People‘s burden of
proof.‘ [Citation.] Defendant invites us to revisit the issue, but provides no
persuasive reason to do so.‖ (People v. Whalen (2013) 56 Cal.4th 1, 70.)

C. Penalty Issues

1. Joint Trial
Defendant moved to sever his trial from that of his codefendants several
times before and during the trial. He also moved for separate penalty juries or
sequential penalty trials. The court denied each motion.8 Defendant contends the
court erred. It did not. No good reason existed to try the defendants separately, to
use two penalty juries, or to conduct sequential penalty trials.
The applicable law is settled. The Legislature has expressed a preference
for joint trials; therefore, two or more defendants jointly charged with crimes must
be tried together unless the court orders separate trials. (Pen. Code, § 1098;
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378.) Joint trials
promote efficiency and help avoid inconsistent verdicts. (Zafiro v. United States
(1993) 506 U.S. 534, 537; Bryant, Smith and Wheeler, at pp. 378-379.)
―[I]mportant concerns of public policy are served if a single jury is given a full

8 Some of these motions concerned severance of the trial of guilt. But
defendant primarily, although not exclusively, claims prejudice as to penalty.
Accordingly, we will consider the entire severance question together, as does
defendant.

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and fair overview of the defendants‘ joint conduct and the assertions they make to
defend against the ensuing charges.‖ (Bryant, Smith and Wheeler, at p. 379.) The
court has discretion to order separate trials if there is an incriminating confession,
prejudicial association,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3216476. Public record. Not legal advice.