People v. Gomez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN PEREZ GOMEZ,

Defendant and Appellant.

S087773

Los Angeles County Superior Court

BA156930

November 29, 2018

Justice Liu filed the opinion of the court, in which Chief Justice

Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, Kruger,

and Lui concurred.

PEOPLE v. GOMEZ

S087773

Opinion of the Court by Liu, J.

Defendant Ruben Perez Gomez was sentenced to death in

2000 for the first degree murders of Rajendra Patel and Raul

Luna, Jr. He was also sentenced to life in prison without the

possibility of parole for the double murder of Robert Acosta and

Robert Dunton. This appeal is automatic. (Pen. Code, § 1239,

subd. (b); all undesignated statutory references are to this code.)

We affirm the judgment in its entirety.

I. FACTS

In an amended information filed on July 7, 1998, in Los

Angeles County Superior Court, the district attorney charged

Gomez with five counts of first degree murder (§ 187, subd. (a)),

six counts of second degree robbery (§ 211), and one count of

kidnapping (§ 207). The amended information alleged personal

firearm use enhancements in connection with each count.

(Former §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) The

amended information also alleged multiple-murder, robbery,

and kidnapping special circumstances. (§ 190.2, subd. (a)(3),

(17).)

The prosecution withdrew one of the robbery counts before

trial, and the trial court dismissed one of the five remaining

counts of robbery during trial. A jury convicted Gomez of four

counts of first degree murder, two counts of second degree

robbery, and one count of kidnapping. The jury found true the

special circumstance allegation of multiple murder as well as

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the special circumstance allegations of robbery and kidnapping

in connection with the Patel murder. Although the jury

convicted Gomez of the first degree murder of Luna, it acquitted

him of the robbery of Luna and the associated robbery special

circumstance and personal firearm use enhancement. The jury

was unable to reach a verdict on the murder and robbery counts

relating to the separate killing of Jesus Escareno; the trial court

declared a mistrial on these counts, which the prosecution

subsequently dismissed pursuant to section 1385.

The penalty phase took place before the same jury. After

two days of deliberations, the jury returned a verdict of death

for the murders of Luna and Patel, and of life without parole for

the murders of Acosta and Dunton.

A. Guilt Phase

1. Prosecution Evidence

a. The Salcedo Robbery

Gomez and Xavier Salcedo knew each other from “growing

up.” Salcedo testified that Gomez came to his home sometime

in February 1997 and told Salcedo that he was out of jail and

asked for money. Salcedo denied having any money. About two

weeks later, around 11:00 p.m. on February 25, Gomez returned

with two other men. Salcedo, his girlfriend, Silvia, and their

three children were home. Salcedo had about $10,000 in cash in

his bedroom closet.

Salcedo testified that he heard someone knock on the back

door and that he told them to come around to the front. When

Salcedo opened the front door, Gomez and a second man forced

their way into the house while a third man remained standing

in the open doorway. Gomez told Salcedo, “I want to talk to you,

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sit the fuck down.” Gomez sat on the couch next to Salcedo, and

the second man stood facing them about four feet away. Gomez’s

two confederates held their hands in their pockets, giving

Salcedo the impression that they had guns. Gomez had a gun

tucked into his waistband.

Gomez said that Salcedo had “disrespected him” when he

came to Salcedo’s house two weeks earlier to borrow money.

Gomez pulled the gun from his waistband, pointed it at Salcedo,

and told Salcedo to take off his jewelry. Salcedo handed over his

gold bracelet, necklace, ring, and watch. Gomez told Salcedo to

close the bedroom door so they could talk. Salcedo went to close

the door and told Silvia, who was in the bedroom, that he was

being robbed. Silvia testified that she called 911 from the

bedroom.

Salcedo further testified that he went back to the living

room, where Gomez told him to “sit down” and to “shut up.”

Gomez pointed the gun at Salcedo, asked if he had any money,

and told him to “go get it.” Salcedo went to his bedroom, grabbed

about $5,000, handed a gun to Silvia, and told her “if they come

in here, protect yourself.” Salcedo returned to the hallway, gave

Gomez the money, and the two went back into the living room.

Salcedo pleaded with Gomez to give back the jewelry because it

had been a gift from his parents. Gomez handed his gun to

Salcedo while the second man in the living room looked on, but

Salcedo handed it back and said, “I don’t want any problems.”

Gomez gave back the jewelry, and the three men left with the

cash. Salcedo locked the door, turned off the lights, and went

back into the bedroom where Silvia was still on the phone with

a 911 operator.

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Salcedo told Silvia to “grab the kids and let’s go,” but the

three men returned before Salcedo and his family could leave.

The men demanded that Salcedo open the door or they would

shoot though the walls. Silvia called 911 a second time from the

bedroom. Salcedo looked out the window and saw a friend walk

up to the house. The friend spoke with the three men. The men

started knocking on the door again, and Gomez threatened to

shoot through the walls. The police arrived; Gomez and the

others ran off around the back.

b. The Patel Murder

In the early morning of May 27, 1997, Detective Sal La

Barbera received an assignment to investigate the “northbound

Terminal Island Freeway on-ramp between Anaheim and PCH.”

When La Barbera arrived, the scene was already contained by

police officers, who had found a body on the shoulder of the on-

ramp, apparently shot and stabbed. Officers found blood about

75 feet north of the victim’s body. Two days later, after

recovering a missing persons flier on a telephone pole in

Torrance, La Barbera identified the victim as Rajendra Patel.

The officer spoke with Patel’s family and then verified Patel’s

identity by checking his thumb print against the victim’s.

A county medical examiner testified that Patel was shot

once in the back of his head at close range, with the tip of the

gun barrel making contact with his head. The medical examiner

also testified that Patel received stab wounds in the face and

neck, and one particularly deep stab wound in the chest. The

medical examiner attributed Patel’s death to the gunshot wound

and the deep stab wound. He further opined that Patel would

have been able to walk or run 75 to 90 feet after receiving the

deep stab wound, but not after receiving the gunshot wound.

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Patel was last seen on May 25, 1997, around 9:00 p.m. at

his home in La Palma. The victim’s son testified that his father

left home in his white Toyota Camry, wearing a bracelet, a gold

watch, and a chain. On May 28, 1997, a police officer discovered

Patel’s car after being directed via radio call to locate a stolen

vehicle in an alley in San Pedro. The interior of the car was

found burned. A police department criminalist compared DNA

extracted from blood found in the trunk of the Camry to Patel’s

DNA and testified that the blood “could have come from Mr.

Patel or any other individual with the same combination of

genetic marker types.” The criminalist further testified that the

relevant combination of genetic marker types “occurs

approximately one in 60,000 individuals, so it’s fairly rare in the

general population.”

Witness No. 1 testified that Gomez had asked him to burn

the white Camry. (Before trial, the prosecutor asked that

Witness No. 1 and three other witnesses not be named in the

record, although their real names were used during the

proceedings. We likewise refer to these witnesses without

naming them.) Witness No. 1 complied with Gomez’s request

because they “were tight.” He took the car to an alley and then

poured alcohol on the upholstery so that the vehicle’s interior

would ignite when he threw a lit rag into the car. Witness No.

1 believed the car was a “murder car” because Gomez had told

him to “check the trunk good to make sure there wasn’t no blood

in it.” Witness No. 1 also testified that three or four days before

Gomez asked him to burn the car, Gomez said, “I hated to kill

that guy because he had balls. He said ‘if you’re going to do it,

go ahead and shoot me, motherfucker.’ ” According to Witness

No. 1, Gomez later put “a hit” out on him “for not burning the

white car completely” because Gomez “was worried about his

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fingerprints.” Witness No. 1 testified that Gomez brought

Patel’s watch and bracelet to Robert Dunton’s house at least one

or two days before he burned Patel’s car.

Witness No. 3 testified that Gomez brought Patel’s jewelry

to Witness No. 3’s residence in Wilmington, where her husband

traded narcotics for the jewelry. During the transaction, Gomez

told Witness No. 3 and her husband that the jewelry was “from

this Mexican man I have in the trunk of the car I just killed.”

Witness No. 3 observed that a white car was parked in the

driveway while Gomez was at her home. Witness No. 3 later

pawned the watch and bracelet in Las Vegas, Nevada, on June

5, 1997. The police collected Witness No. 3’s pawn slip when she

was arrested for an unrelated crime on July 2, 1997. Police

investigators subsequently recovered Patel’s jewelry from the

Las Vegas pawn shop.

The police also found three expended .40-caliber cartridge

casings when investigating the crime scene on May 27, 1997.

One of the cartridges was located between 90 and 100 feet from

the body, the second “just a few feet shorter . . . probably only a

three or four foot difference,” and the third within three feet of

the body. These casings were later matched to a Smith and

Wesson .40-caliber stainless steel semiautomatic handgun given

to a police officer by Angel Rodriguez on June 8, 1997. During

trial, a firearm examiner testified that his forensic analysis of

the .40-caliber handgun revealed that it was the source of the

expended casings found near Patel’s body. Witness No. 1 later

identified the same handgun as the one Gomez carried “when he

first started coming around [Dunton’s] house.”

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c. The Escareno Murder

On the morning of June 9, 1997, Detective Debra Winter

and her partner arrived at a shopping center on Western Avenue

in San Pedro to investigate a homicide. Winter testified that she

saw the “body of a male Hispanic, approximately 30 years of age,

lying face down” in an alcove behind the shopping center. The

body had been discovered by a maintenance worker earlier that

morning. The maintenance worker testified that “there was no

body” when he arrived for his shift at 5:30 a.m., but that he

discovered the body when he returned to the area between 7:30

and 8:00 a.m.

There was brain tissue on the victim’s suit and on the

ground immediately surrounding the body. A fragment of glass

was also recovered from the victim’s hair at the crime scene. A

county medical examiner testified that the victim had been

killed by a shotgun blast to the head from a distance of about

one or two feet.

No jewelry was found on the victim’s body, but there were

indentations on the victim’s fingers where he had been wearing

rings. One of the victim’s pockets was turned out, and Winter

concluded that someone had rifled through it. Although there

was no wallet or identification upon the victim’s person, the

police discovered a business card for the restaurant Los Tres

Cochinitos in the victim’s right front pocket. Workers at Los

Tres Cochinitos examined a photograph of the victim and

identified him as a regular customer who bussed tables at

another restaurant. Upon visiting the victim’s workplace,

Winter was able to identify the victim as Jesus Escareno.

On June 11, 1997, two days after Escareno’s body was

discovered, his car was found in San Pedro. Winter testified that

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the car’s roof was dented from pellets that had been shot into

the vehicle. Blood and brain matter were found between the

passenger seat and the passenger side door. A vanity mirror in

the visor had been shattered by a shotgun blast, which was

consistent with the glass found in Escareno’s hair at the crime

scene. Winter testified that in her opinion Escareno’s death did

not occur where the car was found and that someone had driven

the car following Escareno’s homicide.

Diana Paul, a criminalist with the Los Angeles Police

Department, performed a “bullet path determination” analysis

on Escareno’s car. Paul examined the vehicle and found

projectiles “consistent with a type of shot shell pellet known as

double aught buck . . . typical of a 12 gauge shotgun.” Paul

testified as to his finding that the projectiles traveled “upward

and from the driver’s side toward the passenger side.” Paul

further testified that this finding was consistent with a shotgun

having been fired through the open driver’s side window and

that her findings “could be consistent with only one shot” having

been fired from the shotgun.

Maria Rosales, Escareno’s sister, lived in Wilmington with

her husband, her children, and Escareno. According to Rosales,

Escareno normally worked as a busboy until 10:30 p.m. on

Sundays. After work, he typically went out to Los Tres

Cochinitos “to chat with his friends.” Escareno always carried a

wallet. Rosales testified that on Sunday, June 8, 1997, Escareno

came home after work, “slept for a while at home,” then went

out. Teresa Nava, a waitress at Los Tres Cochinitos, confirmed

that Escareno had been at the restaurant on June 9 and that he

left the establishment around 4:10 a.m. That morning, Rosales

“awoke with the sound of a gunshot,” which “coincided with the

time [Escareno] usually arrived” at home.

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Deanna Gallardo lived in the apartment directly upstairs

from Escareno and Rosales. Gallardo was sleeping in bed when

a gunshot sounded from “right in front of the apartment

complex” at 4:42 a.m. on June 9. Gallardo and her husband ran

to the front window where she saw “the red glare of the brakes”

and heard “the skidding of a car.” Pero Hererra, who lived about

four houses down from Escareno, was in his kitchen early that

morning getting a drink of water when he also heard a gunshot.

In an interview with Winter on July 2, 1997, Hererra said that

from his kitchen window he had seen a car park alongside what

looked like his neighbor’s car, that he saw a flash “coming from

inside,” and that he heard a blast from a large gun or shotgun.

Around this time, Witness No. 1 was living in San Pedro

at Robert Dunton’s house. Witness No. 1 met Gomez through

Dunton. Witness No. 1 and Gomez became friends and were

“pretty tight for a while.” Witness No. 1 testified that he was

driving Gomez around one evening and that Gomez “was looking

for somebody to rob.” Gomez had in his possession a cut-down,

break-open shotgun nicknamed “shorty” that belonged to

Witness No. 1 and Dunton. They drove from San Pedro to

Wilmington.

Upon passing a bar, Gomez asked Witness No. 1, “Did you

see that guy, with all them rings on his finger[s]?” The man with

the rings drove off in a Ford Thunderbird; Witness No. 1 and

Gomez followed him. After losing track of the car, the pair

located it in front of an apartment complex in Wilmington. They

pulled up next to the Thunderbird, and Gomez started talking

to the driver in Spanish.

According to Witness No. 1, the driver of the Thunderbird

seemed tipsy because he was laughing a lot. Gomez told him, “I

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got mucho huevos and mucho corazon.” Witness No. 1 explained

this meant he had a lot of balls and a lot of heart. As the driver

of the Thunderbird laughed, Gomez lifted the shotgun and fired

one shot. Witness No. 1 testified that the driver “suddenly

disappeared.” Gomez then told Witness No. 1 to drive the

Thunderbird back to San Pedro so they could remove the rings

from the victim’s fingers. When Witness No. 1 entered the

driver’s side of the Thunderbird, he noticed that the victim’s

head was over by the passenger door and his left foot was up

behind the steering wheel. Gomez drove off while Witness No.

1 moved the victim’s foot from behind the steering wheel.

Witness No. 1 drove the Thunderbird a couple of blocks to a

hamburger stand, parked it in a dirt lot, took the man’s wallet,

and walked back to Dunton’s house in San Pedro. Witness No.

1 spent $10 of the victim’s money on heroin before he arrived at

Dunton’s house. When Dunton learned of this, he told Witness

No. 1 that he “didn’t follow orders.” Witness No. 1 gave Gomez

the victim’s remaining money, about $70.

Witness No. 1 went back to the car; the body and keys were

still inside. He drove the Thunderbird to an alley in San Pedro

about a half block from Dunton’s house. Witness No. 1 returned

to the house, and Gomez ordered him to retrieve the dead man’s

jewelry. Witness No. 1 took rings and two watches off the body

and brought them to Gomez. Gomez gave the items to Dunton,

who told him that the items were costume jewelry. The jewelry

was thrown away.

Gomez subsequently told Witness No. 1 to dispose of the

car and the body. Witness No. 1 testified that he drove the

Thunderbird to the Park Plaza shopping center and left the body

near two dumpsters “where somebody could find him.” He then

drove the car back to an open garage in an alley near Dunton’s

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house. Witness No. 1 parked the car, walked down the alley,

took his blood-stained shirt off and threw it in a garbage can,

and walked back to Dunton’s house.

Later, after Gomez had been taken into custody, Winter

and her partner paid him a visit “to determine the tattoos that

he had.” Winter testified that she asked Gomez some routine

questions as part of the booking procedure. According to Winter,

Gomez made several statements that were not responsive to her

questions. For example, he opined that the police “must be very

busy” because “things were crazy” in the Harbor area lately.

Gomez “talked about a guy up on Western, his head being shot

off,” and he mentioned “a couple of guys that were shot and

brains were splattered all over the place.” Gomez said these

individuals couldn’t be identified and that their wallets were

missing. Winter further testified that she had not released

information to the press about Escareno’s wallet being missing.

d. The Luna Murder

At approximately 1:20 a.m. on June 10, 1997, Detective

Jeffrey Lancaster was dispatched to a shooting at a residence in

Torrance. Lancaster arrived to find the body of Raul Luna, Jr.

“laying adjacent to a walkway that runs from the sidewalk to

the front porch” of the house. He observed a gunshot wound on

the left rear portion of Luna’s head but no other wounds. A live,

12-gauge shotgun cartridge was found about 15 feet east of

Luna’s body. Officers also located “a clear plastic baggie with a

kind of white brown substance” near Luna’s knee, which was

later identified as methamphetamine. Upon searching the

residence, officers discovered more methamphetamine, an

assault rifle, money, and “some other ammunition, .45 caliber.”

Raul’s father later testified that Raul sold illegal drugs.

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A county medical examiner performed an autopsy on

Luna’s body and determined that the cause of death was a

gunshot wound to the head fired from about six to 12 inches

away. During trial, another medical examiner testified that

photos of the decedent revealed a circular wound with tearing

into and behind the left ear. The medical examiner described

“fully burnt gunpowder” scattered around the skin near the

shotgun wound hole and noted damage to the skin in the same

area from the burnt gunpowder.

Rudy Luna, Raul’s brother, testified that at approximately

midnight on June 9, 1997, he arrived at the home he shared with

Raul, another brother named Andy, his sister-in-law Alice, and

his nephew Andrew. Rudy lay down to go to bed at 12:06 a.m.

A few minutes later, he heard a “loud, muffled

engine . . . sounding rough like a truck” before hearing a car pull

up to the middle of the street directly in front of the Luna

residence. Approximately three to five minutes later, Rudy

heard “rustle noises” in front of his bedroom window, so he

looked out. Rudy explained that he “didn’t see anything, so [he]

laid back down, and then a minute after that [he] heard someone

say, ‘there’s somebody in there, there’s someone in there.’ ” After

a couple minutes, Rudy heard the same voice say “he’s here”; he

then heard his brother Raul say “oh, shit.” Rudy next heard a

gunshot and immediately lay down onto his bedroom floor.

Eventually, Rudy walked to his kitchen window, which faces the

front of the house. He did not see anybody but heard “a muffled

garbled cough” and walked outside to find Raul “lying flat on his

back bleeding from the head.”

Charles Orr lived on the same street as the Luna family.

On the night in question, Orr was working on his computer

shortly after midnight when he heard “what sounded like an

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explosion.” Orr assumed that the sound was a malfunctioning

electrical transformer at the school down the street. “All of a

sudden,” Orr heard running and “a kind of rattling noise,” so he

looked out of his window to see someone “about [Orr’s] size”

running eastbound in a “heavy footed” way. Orr left his house

and walked down the street to follow the runner but did not see

anyone.

Around the same time, William Owens, a federal customs

officer, was smoking a cigar across the street from his

apartment, less than a mile east of the Luna residence. That

night, Owens saw a man running eastbound toward him. The

man asked Owens to “give him a ride to his girlfriend’s,” but

Owens declined. The man continued to run eastbound. Owens

soon called the Torrance Police Department and reported

“hearing [a] gunshot about 1:00 a.m.” During the trial, Owens

identified the running man as Ruben Gomez.

Officer Steve Fletcher testified that upon canvassing the

crime scene for possible witnesses, he spotted a silvery white

and black Oldsmobile from the mid-1980s parked about a

hundred yards south of the Luna residence. Fletcher noticed

that the car windows were rolled down, the keys were still in the

ignition, the hood was warm to the touch, and the tires were wet,

“appearing as they just had been driven up through the water

that was in the gutter.” Officers found a radio and a white

plastic bag containing seven live 12-gauge shotgun rounds in the

backseat of the vehicle.

The vehicle was towed to an impound yard later that day,

where Officer Brooke Mc Millan took additional photographs of

the vehicle’s interior. Mc Millan fingerprinted both the interior

and exterior of the car and collected 34 lifts. Two prints lifted

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from the exterior surface of the passenger door belonged to a

woman named Maria Baca. One print lifted from the rearview

mirror matched Baca while the other matched another woman

named Sandra Ruvalcaba. Seven prints from the driver’s

window exterior matched Gomez and one matched Ruvalcaba.

Finally, three prints from the driver’s door exterior matched

Gomez.

While the investigation into Luna’s death was ongoing,

officers investigating the murders of Robert Acosta and Robert

Dunton recovered a cellphone at Dunton’s house in San Pedro.

Witness No. 1 testified that Gomez had brought the phone into

Dunton’s house. The police were unable to identify fingerprints

from the lifts taken from the cellular phone. But when

Lancaster asked Luna’s father to identify the phone, he

successfully matched the phone’s serial number with the serial

number found on the phone’s packaging, which was stored at the

Lunas’ residence.

At trial, a custodian of records for AirTouch Cellular

testified about 10 phone calls made after midnight from the

telephone number registered to Raul Luna. Four calls were

made to unknown numbers. Two calls were made to cab

companies, one to a hotel in Wilmington, and one to Dunton. As

discussed further below, Gomez had been staying at Dunton’s

home “off and on for about a month.”

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e. The Acosta and Dunton Murders

Around 3:48 a.m. on July 1, 1997, police officers responded

to a 911 call regarding a possible assault with a deadly weapon

at 332 West O’Farrell Street in San Pedro. After knocking on

the front door and receiving no response, and after trying

unsuccessfully to open the front door, the officers accessed the

home through a back door and discovered dead bodies inside.

Detective Olivia Joya and her partner Detective Scott

Masterson were assigned to investigate the matter around 4:20

a.m. They found the body of Robert Acosta on the living room

floor and the body of Robert Dunton on a living room sofa.

Masterson testified that Acosta’s head was a “very short

distance” from the front door. Joya testified that four spent

Remington shotgun shell casings, a bag of shotgun shells, the

sawed-off wood stock of a shotgun, a metal tube, drugs and drug

paraphernalia, and a cellphone were all recovered from the

scene. As noted above, the cellphone was later traced to Raul

Luna.

An autopsy of Acosta’s body determined that he had been

killed by a single shotgun wound to the neck and that the

shotgun had been placed “at the throat in some contact” with

the neck. Dunton’s autopsy revealed that he had been killed by

a shotgun wound to the back of the head, although Dunton

received three shotgun wounds in total.

Manuel Hernandez, who lived in the residence

immediately to the west of Dunton’s home, told investigators

that he heard what sounded like three gunshots at about 3:15

a.m. on July 1, 1997. When he peeked outside of his window,

Hernandez saw that Dunton’s house was dark and that one man

came out of the back door and ran down a walkway toward

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O’Farrell Street. The man was between five feet, six inches to

five feet, eight inches tall; the parties stipulated that Gomez is

six feet, two inches tall and that Arthur Grajeda, Gomez’s

codefendant as to the Acosta and Dunton charges, is five feet,

eight inches to five feet, ten inches tall. Hernandez then heard

a car start nearby. He subsequently noticed someone turn on

the lights in the Dunton residence and say “oh, my god” before

leaving the house through the back door.

Witness No. 1 testified that he was present in the home

when Acosta and Dunton were shot and that he was the person

who placed the 911 call. Witness No. 1 had known Acosta and

Dunton since approximately 1975. For several months prior to

the killings, Witness No. 1 lived with Dunton at Dunton’s

residence on O’Farrell Street. Witness No. 1 paid Dunton some

rent and helped him by “working the door” and letting people

into the home to buy drugs from Dunton. Dunton weighed

around 500 pounds and had difficulty getting up from the couch

to answer the door. Witness No. 1 first met Gomez about a

month before Acosta and Dunton were killed, when Gomez came

to the house to buy drugs. Gomez and Dunton became friends,

and Gomez began napping and showering at Dunton’s house

within a week or two of his first visit.

During the week before Acosta and Dunton were shot, a

man who went by “Boxer” came to Dunton’s house two days in a

row. On the first visit, Boxer complained, “You ain’t paying your

taxes and they’re getting on me because I’m not doing my job.”

The next day, Boxer returned with his girlfriend and another

person. He threatened Gomez with a machete while the other

two held him back. He then took $100 and a small chrome

handgun from Gomez. When Gomez complained about the gun,

Boxer said, “Well, I’ll give it back to you.” Gomez then called

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someone in Wilmington and said he “need[ed] a gun, any kind of

gun” and insisted that it was a matter of “life or death.”

Someone brought over a shotgun, and Gomez and Witness No. 1

cut six inches from the barrel and cut the stock off to make it

easier to conceal.

The night before Acosta and Dunton’s murder, Witness

No. 1 and Gomez drove to a location in Wilmington known as

“the third world” or “the junk yard” where drug dealing took

place. Witness No. 1 flashed some money and offered to buy

crack cocaine from a drug dealer. When the dealer presented

the drugs, Gomez drew the cut-down shotgun and took the drugs

without paying.

Gomez and Witness No. 1 subsequently drove back to

Dunton’s house. Gomez said to Witness No. 1, “They sent

somebody to fuck [Dunton] and [Acosta] up.” Upon entering

Dunton’s house, the pair found Acosta, Dunton, and Grajeda

seated inside. Gomez and Witness No. 1 sat down at a table; the

cut-down shotgun was placed on the table. Grajeda was seated

on a small couch facing Dunton and held a different

shotgun — the weapon that Witness No. 1 and Dunton referred

to as “shorty.” Dunton sat on a large couch facing the door, and

Acosta was standing near the door. Witness No. 1 subsequently

left the room to prepare some crystal methamphetamine in his

bedroom.

From his bedroom, Witness No. 1 heard Dunton say, “If I

got to go, I’m going to go like a man.” Grajeda said, “You know

the rules,” and Gomez added, “Yeah, forward and backward.”

Gomez then said, “Don’t point that at me. I don’t like people

pointing things at me.” Thereafter, Witness No. 1 heard about

four gunshots, running footsteps, and a bump against the

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washing machine near the back door. Witness No. 1 went into

the living room and saw Acosta lying by the front door and

Dunton seated on the couch with his head to the side.

Witness No. 1 went out the back door and rode his bicycle

toward a convenience store to call 911. On the way, he passed a

business where his friend worked, and he went in and called

911. He then continued to the convenience store. Witness No.

1 testified that he was afraid to go back to Dunton’s house

because he “figured they would . . . come back and get me.” But

during an interview with Detective Joya and Detective

Masterson on July 2, 1997, Witness No. 1 said that he had gone

out to get something to eat and had come home to find the

bodies. In court, Witness No. 1 acknowledged this discrepancy

and explained: “Because both of them was gone and I was

there . . . I was afraid it might look like I did it.”

Witness No. 2 testified that he had known Grajeda, who

was dating Witness No. 2’s niece, for about four to five years.

Witness No. 2 had also known Dunton and Acosta for about 30

years; Dunton lived behind Witness No. 2’s mother’s house. The

day before Acosta and Dunton were shot, Witness No. 2 went to

Donald Jauez’s house around 3:30 or 4:00 p.m. Grajeda was

already there, along with four to six other people, having drinks.

Witness No. 2 testified that he heard Grajeda say that Gomez

was supposed to be collecting taxes for the Mexican Mafia and

that “[Dunton] wasn’t paying up, [Gomez] wasn’t paying up.”

Witness No. 2 recalled Grajeda saying he would “go over there

and take care of [Gomez].”

Grajeda then asked Witness No. 2 to drive him to Dunton’s

house because Grajeda “wanted to go check out the place.”

Witness No. 2 complied. They arrived at Dunton’s house around

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4:30 or 5:00 p.m. Gomez answered the door and they went

inside. Witness No. 1, Witness No. 2, Gomez, Grajeda, and

Dunton were all present. Witness No. 2 and Grajeda stayed 20

or 30 minutes and made small talk. Gomez was “nervous” and

“was walking back and forth.” Witness No. 2, suspecting that

another person may have been in the bedroom, said to Grajeda,

“Let’s get out of here. It don’t look right.”

Grajeda and Gomez walked outside, followed by Witness

No. 2. Grajeda and Gomez went over to a vehicle and talked for

a few minutes. Acosta arrived, greeted them, and went inside

the house. Witness No. 2 drove Grajeda back to Jauez’s house

and dropped him off around 5:30 p.m. During the drive, Grajeda

asked Witness No. 2 to come back at 8:00 p.m. to pick him up

and drive him back to Dunton’s house. Grajeda told Witness No.

2 that he intended to kill Gomez and possibly Dunton if Dunton

“didn’t pay up his taxes.” Witness No. 2 agreed to return at 8:00

p.m.

Around 6:00 p.m., Witness No. 2 went to his mother’s

apartment. He told his girlfriend that Grajeda was going to call

and instructed her to say that Witness No. 2 was asleep and that

she would not wake him. Witness No. 2 did not see Grajeda

again until about two days after Acosta and Dunton had been

killed. Witness No. 2 told Grajeda that “[Acosta] and [Dunton]

got killed,” and Grajeda said that he “did it.”

Witness No. 4, Gomez’s cousin, testified that she saw

Gomez on July 2, 1997, for the first time in about eight years.

Sometime in the late afternoon, Gomez knocked on the door to

her home in Long Beach and said that he needed a place to stay.

He was carrying a bag and “kind of a big gun” that resembled

the shotgun that he and Witness No. 1 had cut down and

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removed the stock from. Witness No. 4 subsequently left Gomez

in her house and walked to her friend’s house, where she

eventually called the police.

Around 3:00 or 3:30 a.m., Gomez was arrested at Witness

No. 4’s home without incident. Upon searching the residence,

officers discovered the cut-down shotgun. Three of four

fingerprints lifted from the shotgun matched Gomez. Daniel

Rubin, a criminalist with the Los Angeles Police Department’s

Firearms Analyst Unit, testified that four spent cartridges

discovered at Dunton’s house were fired by the shotgun

confiscated from Gomez during his arrest, and that one live

round recovered from Dunton’s house was “the type of shot

cartridge that could be loaded in and fired by” the shotgun.

Rubin further noted that a metal tube found at Dunton’s

residence “could have been a part of the barrel of [the] shotgun.”

On July 7, 1997, detectives acting on information provided by

Witness No. 1 recovered a cut-off shotgun stock from a trashcan

in Dunton’s kitchen.

Witness No. 5, Acosta’s wife, testified that Gomez called

her after his arrest and asked her to come visit him at the county

jail. At the jail, Gomez denied killing Acosta and Dunton, and

told Witness No. 5 that he knew “that he had left fingerprints

all over the house and even fingerprints on [Dunton’s] face, and

he even kissed him.” Gomez also acknowledged that he was “the

last person there” when Acosta and Dunton were killed.

Witness No. 5 further testified that she found a note

between the pages of a Bible five days after Acosta’s death. The

handwritten note was signed by Acosta in his full name and his

street name “Spider.” She testified that she and Acosta “always”

left notes for each other, but that Acosta had never left a note

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for her signed with his full name. Witness No. 5 said that the

note “meant something serious,” so she turned it over to the

detectives investigating Acosta’s death. The note read as

follows: “6-30.97 [¶] Tuesday morning [¶] Monday nite 1.20 [¶]

Went to meet [¶] Shady La Rana [¶] don’t like the [¶] meeting

at Big Huero [¶] Robert Acosta [¶] Spider.” (“Shady La Rana”

was Grajeda’s nickname, and “Big Huero” referred to Dunton.)

The prosecution also presented expert testimony from

Sergeant Richard Valdemar about the history and practices of

the Mexican Mafia. Valdemar recounted some of his

observations from surveilling Mexican Mafia meetings,

including the fact that murder was a primary topic of

conversation. He further stated that the Mexican Mafia had a

“reputation for seeking out witnesses and killing them” and that

loyal Mexican Mafia members “would use any means possible to

delay, obstruct or reverse any kind of a criminal prosecution

against its members.” Moreover, after viewing Gomez’s tattoos,

Valdemar testified that Gomez was “a member of the East Side

Wilmas gang, Ghost Town Locos, which is a subset, and

surrenos.” He had previously stated “[t]hat members of the East

Side Wilmas gang . . . align themselves with the Mexican

Mafia.”

Valdemar also explained that individuals can be placed

“on a green light list” and that “gang members have a green light

or the authorization to assault and murder whoever is on that

list.” Valdemar noted that “all dope dealers who operate in the

area controlled by the street gangs that are controlled by [the

Mexican Mafia] pay taxes,” and agreed with the prosecution

that a “Hispanic street gang member who by reason of his

tattoos was professing allegiance to [the Mexican Mafia]” and

“was robbing dope dealers in San Pedro and Wilmington and not

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turning over those proceeds to [the Mexican Mafia]” would likely

be placed on the green light list and specifically designated to be

killed. He further explained that someone on the green light list

might be given an assignment for a “suicide run” where the

individual murders someone else on behalf of the Mexican Mafia

so as to be removed from the list. Valdemar also noted that the

Mexican Mafia often “used someone close to the victim to either

approach them or actually carry out the murder.”

During a break in Valdemar’s testimony, one of the jurors

sent a note to the trial court judge, that read as follows: “Judge,

I have a question! What about jury members. Are we at risk?”

Additionally, at the end of guilt phase deliberations, the jury

sent a note signed by the foreperson to the court, stating that

the jurors were “concerned about possible harassment or

problems after we are dismissed once the verdicts are read.” The

trial court subsequently rearranged the jurors’ parking and

provided for them to be escorted to their cars.

2. Defense Evidence

a. The Patel Murder

When Gomez was arrested on July 2, 1997, the police did

not find any .40-caliber pistols on his person. Nor did the police

recover such handguns at the crime scenes of the Luna,

Escareno, or Acosta and Dunton murders. Besides the three

shell casings of the .40-caliber pistol found near Patel’s body,

officers also discovered a disposable lighter from which no prints

of Gomez were recovered.

During the investigation, Detective La Barbera had

experts take foot impressions from the ground. La Barbera

testified that after having learned that officers from Long Beach

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and the California Highway Patrol had already been to the

crime scene, he originally chose not to have the castings

analyzed, believing the prints belonged to the police officers

present at the scene. La Barbera later had the plaster casts and

photographs of the shoe prints at the crime scene compared to

boots confiscated from Gomez during his arrest even though

“these boots . . . did not or could not have made the shoe or boot

impressions located at the scene.”

Additionally, La Barbera had requested fingerprint,

serology, and arson experts to conduct an investigation of Patel’s

car. None of the fingerprints lifted from the vehicle were linked

to Gomez. The serologist was unable to match the blood in

Patel’s car to Gomez. Officers also recovered various personal

items from the car, including a flashlight that did not belong to

Patel and other “trace evidence” such as a rope and bungee

cords, none of which “c[a]me back to Ruben Gomez.” The police

did not find knives, scissors, or shears in the trunk of Patel’s car.

b. The Escareno Murder

The defense introduced a local newspaper article on the

Patel murder, dated May 27, 1997, indicating that no

identification was found on the body. Detective Winter

confirmed that the Escareno murder was also “covered in their

local paper.” The defense also introduced two newspaper

articles concerning the Escareno homicide that were included in

the murder book prepared by the detectives that investigated

Escareno’s murder. Defense Exhibit L, dated June 18, 1997, and

entitled “A Gruesome Discovery in SP Alley,” recounted the

discovery of Escareno’s car and described the blood and brain

matter found in the car. Defense Exhibit M, dated June 10,

1997, and entitled “Man Found Slain at SP Shopping Center,”

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stated that a victim was found with a massive gunshot wound

to the head in a shopping center on Western Avenue, that

jewelry had been taken from both hands, and that robbery

appeared to be a motive. The article also stated that the victim

was killed at the shopping center.

The defense recalled Detective Winter, who testified that

she had interviewed Witness No. 1 on July 24, 1997. During the

interview, Witness No. 1 said that Gomez “always drove.”

Witness No. 1 would ask Gomez for permission to carry the

shotgun because Gomez was driving, and sometimes Gomez

would let him. Witness No. 1 also told Winter that Dunton

would give “some of the jewelry that would come into the house”

to “some of the females that would come around.” Witness No.

1 described jewelry that Dunton had given to some girls, and

Winter indicated in her testimony that the description sounded

like Escareno’s jewelry. He also indicated that Gomez had

several guns, including a single shot 12-gauge shotgun and a

pump shotgun. Winter also interviewed Witness No. 1 on

August 20, 1997. Witness No. 1 told Winter that he had been

involved in the Escareno murder and that he was with Gomez

at the time.

c. The Luna Murder

During trial, Rudy Luna testified that he did not recognize

the voice he heard outside his bedroom window. Rudy

acknowledged that he personally knew Gomez prior to Raul’s

death.

Detective Lancaster later directed officers to compare the

boots taken from Gomez to the plaster shoe casts made at the

Luna crime scene. There was “no similarity at all” between the

boots and the casts, which appeared to have been made by an

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“athletic type of shoe.” Nor did the casts taken from the crime

scene produce any evidence significant to the investigation.

Charles Orr, one of the prosecution’s witnesses, described

the man he saw running shortly after the shooting as “dark-

skinned but not Black.” During trial, Orr did not characterize

Gomez as having dark skin.

William Owens, another one of the prosecution’s witnesses

who had “five or six seconds” of interaction with the running

man, testified that the man seemed Central American and had

“a deep heavy Spanish or Hispanic accent.” Owens estimated

that the man stood around “five-nine, five-ten,” weighed “maybe

180, 200” pounds, had a “light complexion” and “a facial

structure . . . from [the] Central America region,” and spoke

with a “heavy Spanish or Hispanic accent.” Owens further

reported that the running man wore jeans and a red and blue

nylon jacket. Owens did not notice any tattoo markings but

described the runner’s hairstyle as a “marine-type” “crewcut”

and said that the runner had a trimmed, “medium mustache.”

Lancaster showed Owens a six-pack of photos that

contained a picture of Gomez. Lancaster did not have Owens

circle, date, and sign the photograph, as he customarily did to

verify the identification because Lancaster did not feel Owens

had accurately identified the individual who had committed the

crime. Lancaster testified that Owens “never conclusively

indicated that [the photograph] was [of] the suspect,” only that

Owens indicated “he somewhat resembled the suspect.” Owens

claimed to have identified the runner with “75 to 85 percent

accuracy.” During trial, Owens pointed to Gomez in the

courtroom when asked to identify the running man.

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Wilcox testified that Gomez’s prints did not match the

latent prints lifted from the Oldsmobile at the crime scene.

Wilcox further testified that it is generally impossible to “put a

time date as to the appearance of that fingerprint on that

particular object . . . unless there is some type of outside specific

force that acts on that fingerprint.” Further, all six of the

fingerprint lifts taken from the cellphone recovered by the police

were “badly smeared or basically not of sufficient quality to do

the latent print comparison.” Wilcox was not directed to

perform fingerprint analysis on lifts taken from other surfaces

besides the vehicle and cellphone.

At trial, Lancaster testified that the Oldsmobile was not

registered to Gomez. He also acknowledged that prints lifted

from the radio found inside the vehicle, prints from the baggie

found near Luna’s body, prints from an ATM card found near

Luna’s body, and prints lifted from a gold chain and cross

around Luna’s neck did not match Gomez’s prints.

d. The Acosta and Dunton Murders

The defense recalled Detective Joya, who testified that the

cut-off barrel and wood stock of the shotgun linked to the Acosta

and Dunton murders were sent to the crime lab, but she could

not recall if any of the prints matched Gomez. Joya also testified

that she interviewed Witness No. 1 on July 15, 1997, and August

20, 1997. During the July 15 interview, Witness No. 1 told Joya

“[Gomez] had told him that they’re going to send someone over

to fuck up [Dunton] and [Acosta].” In the interview on August

20, Witness No. 1 told Joya “that [Gomez] told him that

they — that they have their orders for [Dunton] and [Acosta].”

Witness No. 1 did not indicate to Joya that by using the term

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“they,” Gomez was referring to himself. Joya further testified

that “they” was a reference to a group of people.

The defense also recalled Detective Winter, who testified

that she interviewed Witness No. 1 on July 24, 1997. During

the interview, Witness No. 1 said that Gomez “always drove.”

Witness No. 1 would ask Gomez for permission to carry the

shotgun, because Gomez was driving, and that sometimes

Gomez would let him. During this same interview, Witness No.

1 told Winter that Dunton asked him to get rid of Boxer.

B. Penalty Phase

1. Prosecution Evidence

The prosecution’s aggravation case consisted of testimony

concerning Gomez’s prior felony convictions and violent criminal

activity. The prosecution first presented evidence that Gomez

had been convicted of a 1991 robbery. The victim, Jorge Lucho,

testified that Gomez approached him when he was walking

home late at night. Gomez threatened Lucho with a pointed

screwdriver and demanded his wallet. Lucho turned over the

wallet, which contained only one dollar; Gomez said Lucho

“surely was carrying more money and that [Lucho] should go

with him to the alley to try and get some more.” At that point,

Lucho was able to run away, but he heard Gomez threaten to

kill him if he didn’t give any more money. Police officers

thereafter discovered Gomez hiding behind a mattress in a

metal shed in the backyard of a house several blocks from where

he had confronted Lucho. Upon arresting Gomez, the police

officers found a “homemade metal sharp object” on Gomez’s

person. The arresting officer testified that Gomez “had a

bewildered look, eyes wide open.” Gomez was transported to the

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general hospital, where he was diagnosed as being under the

influence of an opiate.

The prosecution next introduced evidence that while

incarcerated for the 1991 robbery and a separate drug charge,

Gomez was convicted of assault and possession of a deadly

weapon.

Finally, the prosecution presented evidence relating to

several violent incidents that occurred when Gomez was in

custody awaiting trial in the instant case. Deputy Sheriff Chad

Millan testified that in June 1998, he escorted Gomez to the

hallway to search him for hidden contraband or weapons.

Gomez “was instructed to strip out of his underwear,” was then

“waist chained,” and “asked to do a squat down and a cough too

and release anything that might be secreted in his anus.”

Gomez initially did not comply and then pulled an object from

“between his buttocks.” Fearing that the object was a weapon,

Gomez was ordered to drop the object; when Gomez refused to

do so, Millan sprayed him with pepper spray. Gomez turned

away, began peeling paper “covering off what seemed like the

blade,” and ran down the hallway. Millan followed him and

confronted him, kicking him in the back of the head. Gomez

turned around, said “fuck you, punk,” and stabbed Millan three

times in the rib and knee with a shank.

Deputy Sheriff Timothy Vanderleek testified that he

responded to a disturbance in Gomez’s cell in November 1999.

When he entered the cell, he had liquid that smelled like urine

thrown on his face. Deputy Sheriff Frank Montoya testified that

he had several violent interactions with Gomez in December

1999, while Gomez was jailed during his trial. Montoya

encountered Gomez walking back from court carrying a large

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bag of candy, which was not authorized because Gomez had been

placed in the “high security discipline” cell. Montoya confronted

Gomez and advised him that he could not possess the candy

until he “gets out of discipline”; this caused Gomez to get angry

and start shouting profanities. When Montoya attempted to

grab the bag, Gomez turned around and head butted him. After

Gomez was brought to the ground, Gomez said, “You fucked up,

Montoya. You fucked up. I’m going to kill you. I’m going to kill

you and I’m going to kill every deputy here.”

The next day, Montoya let Gomez out of the locked shower

area and asked him to show Montoya his hands. Montoya

testified that Gomez “thrust” his hand “through the bars toward

[Montoya’s] office,” and that Gomez was holding “a plastic

handled comb with the teeth cut out, and there was a razor fixed

to it, like a slashing instrument.” Gomez was unable to reach

Montoya with his weapon, so he “started breaking the razor and

the plastic comb into little pieces and threw it down the shower

drain.” As he did that, Gomez said, “fuck you . . . I’m going to

kill you. I might have missed you this time, or I’ll get you later

or I’ll get some other deputy that’s slower.” Montoya testified at

trial that he maintained daily contact with Gomez after these

two incidents; although Gomez continued to threaten Montoya,

he did not try to attack him physically again. Another deputy

at the jail, Keith Holly, testified that he went to Gomez’s cell to

inform Gomez that he had been found guilty of various offenses

in violation of jail disciplinary rules, and that Gomez would

therefore lose various privileges for 30 days. Gomez responded,

“Fuck this discipline time. I should have fucking slashed

Montoya’s throat when I had a chance. . . . Just wait until those

fucking deputies take me to court and I’ll slash one of those

fuckers.”

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2. Defense Evidence

The defense first offered the testimony of Michael Pickett,

a regional administrator for the Department of Corrections.

Pickett testified that a defendant like Gomez “can only be

assigned to a Level 4 institution” and would most likely be sent

to the most secure classification of facility, known as a “Security

Housing Unit” or “SHU.” Pickett explained that “it’s not a

perfect world at a Level 4 prison” despite the high security and

that homicides as well as assaults occurred at such facilities.

Based on what he knew about Gomez, Pickett predicted that

Gomez would be moved to the Corcoran SHU facility or the

Pelican Bay State Prison SHU facility, where he would be

confined to a cell for roughly 23 hours per day. He would leave

his cell only for exercise in a yard adjacent to the SHU or for

medical and legal visits, during which he would be shackled and

escorted by a guard. Pickett also testified that all visits with a

Level 4 SHU inmate are “non-contact,” meaning there would be

a Plexiglas partition between the inmate and the visitor. On

cross-examination, Pickett detailed a race-related riot that

occurred at Pelican Bay State Prison the previous morning.

Pickett also opined that there is a higher level of violence at the

more highly secured prison facilities because the inmates in

such facilities are more violent. Pickett further testified that

murders and violent assaults have been ordered by prison gang

members in the SHUs against prisoners in the general

population.

The defense also presented the testimony of Gomez’s

sister, Mercedes Sanabria. She testified that Gomez has three

children under the age of 12 and that she has brought the

children to visit Gomez at the county jail. Sanabria further

testified that the children love their father and that she loves

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her brother. She said to the jury “that despite what my brother

has done, we are real sorry, but we all love him, and we just

don’t want him to be executed.”

II. PRETRIAL ISSUES

A. Preemptive Denial of Gomez’s Right to Self-

Representation

Nine months before jury selection, Gomez invoked his

right to represent himself under Faretta v. California (1975) 422

U.S. 806. At that time, the court warned him, “[Y]ou can’t go

back and forth on this. If you want to represent yourself, that’s

fine. That’s going to cause a delay in the proceedings, and you

just can’t keep switching back and forth between being

represented by counsel and representing yourself.” After

determining that Gomez’s waiver of the right to counsel was

knowing and intelligent, the court granted Gomez pro se status.

But two weeks later, Gomez expressed his desire to “relinquish”

his pro se status and asked that the court reappoint counsel.

The following colloquy ensued:

“THE COURT: Is that what you want to do, Mr. Gomez?

“GOMEZ: Yes.

“THE COURT: I told you before you can’t switch back

and forth.

“GOMEZ: I know that.

“THE COURT: I’m going to hold you to this kind of a

change. I think it’s a good change for

you. I think you’re doing the right thing.

All I’m saying is I’m not going to let you

bounce back and forth. You have a right

to represent yourself, I recognize that

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and gave that to you, and as of this

moment you do represent yourself. And

it’s better for you and it’s better for me

as well to have an attorney who knows

the rules and will effectively represent

you to do that for you. So at this point

you understand that if I’m going to

change back, this is a final change.

“GOMEZ: I understand that, yeah.

“THE COURT: And that’s what you want to do?

“GOMEZ: Yes, sir.

“THE COURT: Okay. Mr. Nardoni is appointed then.”

Gomez argues that this colloquy amounted to a

preemptive denial of Gomez’s constitutional right to self-

representation. Quoting People v. Windham (1977) 19 Cal.3d

121, 128, he contends that when “ ‘a motion to proceed pro se is

timely interposed, a trial court must permit a defendant to

represent himself upon ascertaining that he has voluntarily and

intelligently elected to do so, irrespective of how unwise such a

choice might appear to be.’ ” Because the court gave Gomez the

impression that he could not ask to represent himself, he argues,

he never had the opportunity to invoke such a right, even if such

requests had been timely. But because Gomez never re-invoked

his Faretta right, he cites to our decisions in People v. Dent

(2003) 30 Cal.4th 213 (Dent) and People v. Lancaster (2007) 41

Cal.4th 50, 69–70 (Lancaster) as precedent for the proposition

that where the court entirely forecloses the possibility of future

self-representation, Faretta is violated.

In Dent, the defendant’s appointed counsel failed to show

up on time for the first day of trial. (Dent, supra, 30 Cal.4th at

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p. 216.) After “delineat[ing] the history of defense counsel’s

requests for continuances and failure to appear on the record,”

the trial judge indicated that he would continue the trial once

again and relieved the defendant’s attorneys as counsel of

record. (Ibid.) He then advised the defendant that he “ ‘must

be represented by attorneys that are senior trial attorneys. And

you have got to have people here to represent you. You cannot

represent yourself in this matter.’ ” (Ibid.) When the defendant

asked to say something in response, the trial judge prevented

him from doing so without attorneys present. (Ibid.) Later,

after the defendant suggested that he would prefer to represent

himself rather than receive new counsel, the trial judge flatly

stated that he was “ ‘not going to let him proceed pro. per. . . .

Not in a death penalty murder trial.’ ” (Id. at p. 217.) The trial

court proceeded to appoint new counsel, and the defendant did

not renew his Faretta motion. (Dent, at p. 217.) On this record,

we held that “the trial court’s response was not only legally

erroneous but also unequivocal, and foreclosed any realistic

possibility defendant would perceive self-representation as an

available option.” (Id. at p. 219.)

Lancaster distinguished Dent on the ground that Dent

“involved [an] outright denial of the right [to self-

representation].” (Lancaster, supra, 41 Cal.4th at p. 70.) In

Lancaster, as here, the defendant had vacillated between self-

representation and the right to counsel. After the fourth such

change of heart, the court similarly admonished the defendant:

“ ‘I do need to advise Mr. Lancaster that you cannot continue to

change between representing yourself and having appointed

counsel represent you. The reason for it is that we’ve got to move

forward, and that doesn’t allow us to do that. [¶] I think it’s a

very wise move on your part, as I said. . . . But having originally

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had an attorney, gone pro per, had an attorney, gone pro per,

now you’re back to an attorney, I can’t let you continue to change

from one to the other. It has to be a permanent decision on your

part. [¶] Even if at some point you have some disagreement with

what Mr. Rothman is doing, you can’t just say now I’m back pro

per. That’s a decision for the court to make, and it probably

would not be in your favor.’ ” (Id. at p. 69.)

We rejected the defendant’s argument that the court’s

comments were “a ‘preemptive denial’ of his Faretta right,”

noting that in light of “the court’s protracted grappling with the

logistics of providing defendant with discovery materials and

access to legal resources, the court’s concern with his repeated

alternation between self-representation and the services of

counsel was warranted.” (Lancaster, supra, 41 Cal.4th at p. 69.)

We held that “[t]he court’s reference to the need for a ‘permanent

decision’ . . . did not entirely foreclose the possibility of

defendant’s future self-representation.” (Ibid.) Rather, “it told

him it would make a decision on any renewed application,

though the request would probably not be viewed with favor.”

(Ibid.)

The instant case is more similar to Lancaster than Dent.

In Lancaster, the court warned the defendant that “ ‘you cannot

continue to change’ ” because “ ‘we’ve got to move forward,’ ”

although the decision to request counsel was “ ‘wise.’ ”

(Lancaster, supra, 41 Cal.4th at p. 69.) Here, the court said, “I’m

going to hold you to this kind of change,” and “it’s a good change

for you.” When Gomez first asked to represent himself, the court

had already warned Gomez that he could not “go back and forth

on this” because “[t]hat’s going to cause a delay in the

proceedings.” But, unlike in Dent, the court expressly told

Gomez that “[y]ou have the right to represent yourself if you

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make a knowing and intelligent waiver of your right to counsel”

and “[i]f you want to represent yourself, that’s fine,” and the

court granted Gomez’s initial request to proceed in propia

persona.

Gomez seizes on subtle distinctions in wording to argue

that while the court in Lancaster “did not entirely foreclose the

possibility of defendant’s future self-representation” (Lancaster,

supra, 41 Cal.4th at p. 69), here the court told him unequivocally

that future requests for self-representation would be denied.

But this misunderstands the import of Lancaster, which held

that the trial court’s comments, taken in context, could not be

characterized as a preemptive denial of the defendant’s Faretta

right. (Lancaster, at p. 69.) Lancaster did not hold that had the

trial court’s comments been phrased in more certain terms, such

comments would have amounted to reversible error. Instead,

we commented that the trial court’s reference to a “permanent”

decision may have been “precipitous” due to the fact that trial

was not imminent, but “the impropriety was slight” and did not

cause fundamental error. (Id. at pp. 69–70.) As we explained,

these admonitions are generally inadvisable but also reflect “the

difficulties posed by [a] defendant’s intermittent assumptions of

his own defense” and thus constitute an understandable

“attempt to discourage defendant from perpetuating those

difficulties.” (Id. at p. 70.)

That a trial court may directly deny a Faretta request

when it is designed “to frustrate the orderly administration of

justice” (People v. Marshall (1997) 15 Cal.4th 1, 23) suggests

that courts are not foreclosed from preemptively discouraging

such requests when it identifies a pattern of vacillation that,

over time, will harm the progress of trial and the defendant’s

ability to put on a defense. When considered in context, the trial

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court’s statement that “this is a final change” did not

“unequivocal[ly] . . . foreclose[] any realistic possibility [Gomez]

would perceive self-representation as an available option”

(Dent, supra, 30 Cal.4th at p. 219). Therefore, the trial court’s

warning, while inadvisable in its assertion that any chance

would be “final,” was not erroneous.

B. Trial Court’s Hypothetical During Voir Dire

Regarding Credibility of Accomplice Testimony

During jury selection, the prosecution was interested in

probing prospective jurors’ feelings regarding the propriety of

exchanging testimony against another for prosecutorial

leniency. Page 12 of the jury questionnaire asked: “How do you

feel about the situation in which the prosecution decides not to

prosecute one person in exchange for that person’s testimony

against another person?” The court asked follow-up questions

of those who expressed hesitation or distaste for such practices,

and pressed jurors to explicate their feelings in greater detail.

When a juror did not understand the question, the court

offered the following hypothetical as “an example of the kind of

thing which [the court] think[s] makes some sense to people at

least. [¶] That is say there’s a bank robbery situation. There

are two people involved, one stands outside as a lookout. The

other bank robber actually goes in to rob the bank, and in the

process kills somebody. [¶] We’ve got good evidence supposedly

in this hypothetical as to the person standing outside. We know

that person is a lookout and can be convicted for participating

in the bank robbery and is actually responsible under the law

for the robbery and the killing that occurred in the bank. But

the real person that pulled the trigger is the second person, and

law enforcement is more concerned about that person than the

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one that stood outside. [¶] Do you see a problem with the idea

of granting some lenience to this person that stood outside as a

lookout, saying that that person is either going to agree to a

lesser penalty or perhaps even be immunized entirely in order

to get that person’s testimony against the actual bank robber?”

Gomez argues that the trial court’s attempts to elucidate

the significance of the questionnaire’s inquiry into accomplice

testimony “improperly informed jurors that the prosecution

would only grant leniency to the less culpable party involved in

a crime.” Although counsel did not object to this hypothetical

during voir dire, Gomez argues that the relevant exchanges

between the court and prospective jurors amounted to

instructional error. (People v. Dunkle (2005) 36 Cal.4th 861,

929–930 [“[W]e do not deem forfeited any claim of instructional

error affecting a defendant’s substantial rights.”].) We disagree.

The trial court’s hypothetical was clearly meant to expand upon

and explain the significance of the questionnaire’s inquiry. To

the extent that the hypothetical may have suggested that the

trial court had personal confidence in the prosecutor’s choice

with respect to whom to prosecute, counsel could have objected.

But counsel did not. Accordingly, Gomez has forfeited this

claim. (People v. Fuiava (2012) 53 Cal.4th 622, 653 [“[A]

defendant may not challenge on appeal alleged shortcomings in

the trial court’s voir dire of the prospective jurors when the

defendant, having had the opportunity to alert the trial court to

the supposed problem, failed to do so.”].)

On the merits, the trial court did not err. By describing

the underlying logic for why a prosecutor might exercise

leniency with respect to one accomplice in exchange for

testimony, the trial court’s manifest intention was to add

greater granularity to the questionnaire. Each time the trial

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court engaged a prospective juror with the hypothetical, it was

expressly framed in relation to page 12 of the voir dire

questionnaire. The court described the hypothetical as an

“example” that “makes some sense to people,” suggesting that

the trial court did not personally hold the views that it

described. Its evident purpose was to draw out the prospective

jurors’ views as to the propriety of exchanging testimony for

prosecutorial leniency, not to personally vouch for the

prosecution’s choice of defendant. Moreover, the trial court later

instructed the jury about evaluating witness credibility in the

instant case, which further clarified that any views suggested

by the hypothetical were irrelevant.

C. Motion for Severance of Counts and Separate

Trials

Gomez argues that the trial court abused its discretion in

denying his motion to sever his trial from his codefendant’s trial

and his motion to sever his charges. Gomez claims that these

alleged errors, “both alone and in combination,” violated his

rights to due process, a fair trial, a reliable guilt and penalty

determination, and his right to be free from cruel and unusual

punishment under both the federal and state Constitutions.

Before trial, Gomez first moved to sever his trial for the

murders of Robert Acosta and Robert Dunton from that of

codefendant Arthur Grajeda. Gomez then moved to sever his

counts, seeking a joint trial on the charges arising from the

Acosta and Dunton murders and the Jesus Escareno murder,

and separate trials for the Xavier Salcedo robbery, the Rajendra

Patel murder, and the Raul Luna murder.

The trial court considered Gomez’s motions together and

denied them both. After stating that it was “obvious . . . that the

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defendants should be tried together on [the Acosta and Dunton

counts],” the court found that the counts against Gomez were

“tied closely together in time and to some extent in location” as

well as “in the manner in which the executions took place”; the

same witness would testify in the Escareno case and the Acosta

and Dunton case; the robbery charges involved similar items;

the Luna and Escareno homicides involved cars; and Luna’s

stolen cellphone was used to call Dunton’s house, where Gomez

occasionally stayed. Although the court expressed concern with

the number of crimes that Gomez was charged with, it

ultimately concluded that the crimes “are so well tied together

that . . . they should be tried together.”

1. Motion to Sever Trial from Codefendant’s Trial

We have frequently recognized the Legislature’s

preference for joint trials. (E.g., People v. Souza (2012) 54

Cal.4th 90, 109; see § 1098 [“When two or more defendants are

jointly charged with any public offense . . . they must be tried

jointly, unless the court order[s] separate trials.”].) Factors that

may bear on a trial court’s decision to order separate trials

include “ ‘an incriminating confession, prejudicial association

with codefendants, likely confusion resulting from evidence on

multiple counts, conflicting defenses, or the possibility that at a

separate trial a codefendant would give exonerating

testimony.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th

1, 40, quoting People v. Massie (1967) 66 Cal.2d 899, 917.)

Severance may also be appropriate where “ ‘there is a serious

risk that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.’ ” (People v. Lewis (2008) 43

Cal.4th 415, 452, quoting Zafiro v. United States (1993) 506 U.S.

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534, 539.) “If we conclude the trial court abused its discretion,

reversal is required only if it is reasonably probable the

defendant would have obtained a more favorable result at a

separate trial.” (People v. Burney (2009) 47 Cal.4th 203, 237.)

But, “[e]ven if a trial court’s severance or joinder ruling is correct

at the time it was made, a reviewing court must reverse the

judgment if the ‘defendant shows that joinder actually resulted

in “gross unfairness” amounting to a denial of due process.’ ”

(People v. Mendoza (2000) 24 Cal.4th 130, 162, quoting People v.

Arias (1996) 13 Cal.4th 92, 127.)

Gomez argues that he should have been tried separately

from Grajeda because Grajeda sought to blame the Acosta and

Dunton murders on Gomez, whom Grajeda characterized as

“violent, paranoid and drug crazed.” But, as Gomez

acknowledges, “ ‘[a]ntagonistic defenses do not per se require

severance, even if the defendants are hostile or attempt to cast

the blame on each other.’ ” (People v. Tafoya (2007) 42 Cal.4th

147, 162 (Tafoya); see also Zafiro v. United States, supra, 506

U.S. at pp. 538–539.) And we have previously suggested that

antagonistic defenses require severance only where “ ‘ “the

conflict is so prejudicial that [the] defenses are irreconcilable,

and the jury will unjustifiably infer that this conflict alone

demonstrates that both [defendants] are guilty.” ’ ” (People v.

Carasi (2008) 44 Cal.4th 1263, 1297–1298, quoting People v.

Hardy (1992) 2 Cal.4th 86, 168.)

Gomez does not contend that such a conflict exists here.

Rather, he claims that Grajeda received an inherent

“advantage” as “a ‘lesser’ participant” in the crime. Such an

advantage, Gomez argues, necessarily “work[s] to the

disadvantage of a ‘greater’ participant, and indeed the very

existence of such advantages and disadvantages undermines

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the principle of individual guilt.” But this argument merely

homes in on one aspect of Grajeda’s antagonistic defense, i.e.,

that Grajeda played a lesser role than Gomez in murdering

Acosta and Dunton. And “ ‘[i]f the fact of conflicting or

antagonistic defenses alone required separate trials, it would

negate the legislative preference for joint trials and separate

trials “would appear to be mandatory in almost every case.” ’ ”

(People v. Thompson (2016) 1 Cal.5th 1043, 1081.)

Gomez also claims that he was prejudiced during the

penalty phase because the jury knew that the prosecution had

sought the death penalty for him but not for Grajeda. We have

previously rejected this argument (Tafoya, supra, 42 Cal.4th at

pp. 163–164), and Gomez offers no reason why we should revisit

our precedent here. Accordingly, we reject Gomez’s claims that

the trial court should have severed his trial from Grajeda’s.

2. Motion to Sever Counts

Section 954 allows for the joint trial of “two or more

different offenses connected together in their commission . . . or

two or more different offenses of the same class of crimes or

offenses.” Where joinder is proper under section 954, “[t]he

burden is on the party seeking severance to clearly establish

that there is a substantial danger of prejudice requiring that the

charges be separately tried.” (People v. Soper (2009) 45 Cal.4th

759, 773.) In determining whether a court abused its discretion

in declining to sever properly joined charges, we first consider

“the cross-admissibility of the evidence in hypothetical separate

trials.” (Id. at p. 774.) If the evidence is cross-admissible, then

this “is normally sufficient to dispel any suggestion of prejudice

and to justify a trial court’s refusal to sever properly joined

charges.” (Id. at pp. 774–775.) If not, then we also consider

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“(1) whether some of the charges are particularly likely to

inflame the jury against the defendant; (2) whether a weak case

has been joined with a strong case or another weak case so that

the totality of the evidence may alter the outcome as to some or

all of the charges; or (3) whether one of the charges (but not

another) is a capital offense, or the joinder of the charges

converts the matter into a capital case.” (Id. at p. 775.)

Moreover, “[e]ven if a defendant fails to demonstrate the trial

court’s joinder ruling was an abuse of discretion when it was

made, reversal may nonetheless be required if the defendant can

demonstrate that ‘the joint trial resulted in such gross

unfairness as to amount to a due process violation.’ ” (People v.

Landry (2016) 2 Cal.5th 52, 77.)

Gomez concedes that all of his counts were properly joined

under section 954 and that he should have been tried for the

Acosta, Dunton, and Escareno murders in the same proceeding.

But he contends that each of the remaining cases should have

been tried separately because the evidence underlying those

cases was not cross-admissible; the Acosta, Dunton, and

Escareno murders were particularly inflammatory; the evidence

linking Gomez to the Luna and Patel murders was weaker than

the evidence linking him to the other crimes; and the Luna

murder did not initially involve a capital crime, whereas the

other murders did.

In denying Gomez’s motion for discretionary severance,

the trial court noted that a shotgun was used in the Acosta,

Dunton, Escareno, and Luna murders; Witness No. 1 was a

witness to the Acosta, Dunton, and Escareno murders; and

Luna’s cell phone was used to call Dunton’s house, where

“Gomez was at least a part time resident.” The trial court was

also aware that the prosecution planned to tie the Salcedo

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robbery to its broader theory that “Gomez was ripping off dope

dealers in the Harbor area.”

Even if cross-admissibility alone did not justify the trial

court’s denial of Gomez’s severance motion, the balance of the

remaining factors does not show that the trial court abused its

discretion. (See People v. Simon (2016) 1 Cal.5th 98, 123

(Simon) [“Although cross-admissibility of evidence is often an

independently sufficient condition justifying a trial court’s

denial of severance, it is not a necessary one.”].) First, neither

the Acosta and Dunton double homicide nor the Escareno

homicide was more inflammatory than the other crimes.

Although evidence of gang membership can be particularly

inflammatory (see, e.g., People v. Williams (1997) 16 Cal.4th

153, 193) and the prosecution’s theory of the Acosta and Dunton

murders was that they were gang related, we do not agree that

the jury would have been more inflamed by that crime than the

murder of Patel, who appeared to be unknown to Gomez, or the

murder of Luna, who was murdered at the home that he shared

with his family. And although the Salcedo robbery did not

involve a murder, “the animating concern underlying this factor

is not merely whether evidence from one offense is repulsive,”

but “ ‘ “whether strong evidence of a lesser but inflammatory

crime might be used to bolster a weak prosecution case’ on

another crime.” ’ ” (Simon, at p. 124.) The Salcedo robbery does

not raise such a concern because, as Gomez acknowledges, the

trial court was aware that the victim’s testimony would be

offered in that case.

Second, the Luna and Patel cases were not so weak as to

risk prejudicial joinder. Although the other cases may have

been supported by eyewitness testimony, more substantial

forensic evidence, or both, “a mere imbalance in the evidence

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between the joined crimes does not signal a risk that one charge

will be prejudicially bolstered.” (People v. Johnson (2015) 61

Cal.4th 734, 752.) And the trial court was aware that

substantial evidence linked Gomez to the Luna and Patel

murders, including evidence showing that Gomez was near

Luna’s home around the time of his murder and that Gomez had

possession of Patel’s jewelry and car.

Third, although the Luna murder was not initially

charged as a capital crime, this factor does not carry substantial

weight in favor of finding prejudice. Even if the Luna murder

had been tried separately, Gomez still would have faced the

death penalty based on the other murders. Thus, joining

Gomez’s charges “neither converted the entire matter into a

capital case nor bolstered the possibility of [Gomez] receiving a

death sentence.” (Simon, supra, 1 Cal.5th at p. 128.)

We therefore conclude that the trial court did not abuse its

discretion in denying Gomez’s motion for four separate trials.

Moreover, upon reviewing “events after the court’s ruling,” we

do not find that “joinder actually resulted in ‘gross unfairness’

amounting to a denial of [Gomez’s] constitutional right to fair

trial or due process of law.” (People v. Merriman (2014) 60

Cal.4th 1, 46.) Despite the trial’s relative length and complexity,

and even if the prosecution’s closing arguments occasionally

“encouraged the jury to aggregate the evidence,” the record does

not suggest that the jury was unable to decide each count

separately as it was specifically instructed to do. Indeed,

although an “error in denying severance cannot be saved by the

fact that the jury was unable to agree on a verdict as to

[improperly joined charges]” (People v. Smallwood (1986) 42

Cal.3d 415, 433), the fact that the jury acquitted Gomez of the

charge that he robbed Luna and could not reach a verdict on the

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Escareno charges does tend to show that “the jury was capable

of, and did, differentiate among [Gomez’s] crimes” (People v.

Jones (2013) 57 Cal.4th 899, 927; see Simon, supra, 1 Cal.5th at

p. 130).

Accordingly, we are not convinced it was “ ‘reasonably

probable that the jury was influenced [by the joinder] in its

verdict of guilt.’ ” (People v. Merriman, supra, 60 Cal.4th at

p. 49.) Nor are we convinced by Gomez’s unsupported claim that

his right to a reliable penalty phase determination was violated.

III. GUILT PHASE ISSUES

A. Sufficiency of the Evidence

1. The Luna Murder

Gomez argues that the evidence was insufficient to convict

him of the murder of Raul Luna. In his view, the evidence at

best showed that two people were present in Raul Luna’s front

yard when he was murdered but did not show Gomez shot Luna.

“When the sufficiency of the evidence to support a

conviction is challenged on appeal, we review the entire record

in the light most favorable to the judgment to determine

whether it contains evidence that is reasonable, credible, and of

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

defendant guilty beyond a reasonable doubt.” (People v. Elliott

(2013) 53 Cal.4th 535, 585 (Elliott).) Our review must “presume

in support of the judgment the existence of every fact the jury

could reasonably have deduced from the evidence.” (People v.

Manibusan (2013) 58 Cal.4th 40, 87.) Even where, as here, the

evidence of guilt is largely circumstantial, our task is not to

resolve credibility issues or evidentiary conflicts, nor is it to

inquire whether the evidence might “ ‘be reasonably reconciled

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with the defendant’s innocence.’ ” (Id. at p. 92; see People v.

Maury (2003) 30 Cal.4th 342, 403.) The relevant inquiry is

whether, in light of all the evidence, a reasonable trier of fact

could have found the defendant guilty beyond a reasonable

doubt. (People v. Towler (1982) 31 Cal.3d 105, 117–118.)

Gomez argues that “there was no evidence at all that

Gomez shot Luna.” The evidence showed that a car pulled up to

Raul Luna’s residence and then drove away. Rudy Luna

testified that he then heard two men talking to one another

immediately before the murder and that one of the accomplices

identified Raul Luna before shooting him in the head. This

evidence suggests that Luna was murdered through a joint

undertaking of two accomplices. That they were speaking to one

another at the time of the murder indicated that they were

working together. And that one of the accomplices specifically

identified Raul Luna immediately before he was murdered

suggests that he was the intended target of the coperpetrators’

criminal objectives. So even without indicating who was the

shooter, substantial evidence suggested that the two worked

together to deliberately murder Raul Luna according to a

predetermined plan.

To prove that a defendant is an accomplice the

prosecution must show that the defendant acted “with

knowledge of the criminal purpose of the perpetrator and with

an intent or purpose either of committing, or of encouraging or

facilitating commission of, the offense. ” (People v. Beeman

(1984) 35 Cal.3d 547, 560.) “The aider and abettor doctrine

merely makes aiders and abettors liable for their accomplices’

actions as well as their own. It obviates the necessity to decide

who was the aider and abettor and who the direct perpetrator or

to what extent each played which role.” (People v. McCoy (2001)

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25 Cal.4th 1111, 1120.) Here, the jury need not have

unanimously agreed on which accomplice personally shot Luna

and which aided or abetted the murder. (See People v.

Santamaria (1994) 8 Cal.4th 903, 918 [“[A]s long as each juror

is convinced beyond a reasonable doubt that defendant is guilty

of murder as that offense is defined by statute, it need not decide

unanimously by which theory he is guilty. [Citations.] More

specifically, the jury need not decide unanimously whether

defendant was guilty as the aider and abettor or as the direct

perpetrator.”].)

The sole issue in dispute as to Gomez’s sufficiency

challenge is whether Gomez was one of the two accomplices, and

substantial evidence places Gomez at the crime scene at the

time of the murder. The evidence connected Gomez to both the

Oldsmobile that was likely used as part of the murder’s

commission and the surrounding area of Luna’s residence

immediately after the murder. First, investigators found

Gomez’s fingerprints on an Oldsmobile parked about 150 to 200

yards from the crime scene. The car was conspicuously parked

with the windows down, key in the ignition, with a warm engine,

and with wet tires — all evidence suggesting the car had been

recently driven. Seven unspent 12-gauge shotgun shells, which

matched the unspent shotgun shell discovered near Luna’s

body, were found in the back of the car and connected the vehicle

to the murder. And Luna’s neighbor, William Owens, testified

that he saw Gomez running down the street around the time of

Luna’s murder.

Further, the evidence tended to show that Gomez used

Luna’s cell phone immediately after Luna’s murder. Over the

course of five hours after Luna’s death, 10 calls were made from

Luna’s cell phone; the last call was made to Dunton’s house,

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where Gomez occasionally stayed, suggesting that Gomez used

Luna’s phone to call home. And Witness No. 1 testified that

Gomez had brought Luna’s phone to Dunton’s apartment.

In sum, the record contains substantial evidence that

Luna’s murder was the object of a joint criminal effort

perpetrated by two men working in concert. Substantial

evidence showed that Gomez was one of these men and therefore

could properly be convicted of first degree murder without a

specific finding that he personally was the shooter. The jury’s

verdict — finding Gomez guilty of first degree murder but

declining to convict him of the firearm enhancement — is

supported by substantial evidence.

2. The Patel Murder

Gomez argues that “[n]o physical or forensic evidence

linked Gomez to the Patel killing” and that “[t]he only evidence

connecting [him] to the crimes against Patel . . . was the highly

unreliable testimony of Witnesses #1 and #3,” which Gomez

argues is “incredible as a matter of law.” He seizes upon Witness

No. 1’s checkered past, highlighting his prolonged drug

addiction and regular association with drug traffickers, as well

as his apparent readiness to lie to authorities during the course

of their investigations. He adds that the government gave

Witness No. 1 a $30 per diem during the trial, despite his

admissions outside of the presence of the jury that he was

willing to feign hallucinations in order to collect Social Security

benefits for mental disability, a fact that would tend to show

that Witness No. 1 would not hesitate to lie in exchange for

government benefits.

“In deciding the sufficiency of the evidence, a reviewing

court resolves neither credibility issues nor evidentiary

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conflicts.” (People v. Young (2005) 34 Cal.4th 1149, 1181

(Young).) Witness No. 1 may not have been an ideal witness for

the prosecution, but his testimony indicated that Gomez

possessed Patel’s car after his murder and that Gomez believed

he needed to destroy inculpatory evidence of Patel’s murder that

could be found within. Moreover, Witness No. 1 testified that

Gomez admitted to murdering Patel, stating that he “hated to

kill that guy.” Nothing about this testimony is “physically

impossible or inherently improbable” (Young, at p. 1181), nor

can Witness No. 1’s story be discounted without resort to

“ ‘ “ ‘inferences or deductions’ ” ’ ” about his motivations to

perjure himself (People v. Thompson (2010) 49 Cal.4th 79, 124).

His “testimony [could have been] vulnerable to impeachment for

numerous reasons” (People v. Brown (2014) 59 Cal.4th 86, 105),

such as his hallucinations (whether real or fabricated) and his

role as an accomplice after the fact of the crime. But these

“ ‘doubts about the credibility of the in-court witness should be

left for the jury’s resolution.’ ” (People v. Hovarter (2008) 44

Cal.4th 983, 996.)

Gomez also argues that the testimony of Witness No. 1 and

Witness No. 3 “contradicted each other in significant respects”

such that neither could be believed. He points out that while

Witness No. 3’s testimony suggested that Gomez exchanged

Patel’s jewelry for drugs the same night of the murder, Witness

No. 1 testified that Gomez brought the jewelry to Dunton’s

house and left it there overnight. In essence, Gomez argues that

because Witness No. 1 and Witness No. 3 gave conflicting

accounts of the time that Gomez possessed Patel’s jewelry, we

must conclude that their testimony was “physically impossible.”

But “[r]esolution of conflicts and inconsistencies in the

testimony is the exclusive province of the trier of fact” (Young,

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supra, 34 Cal.4th at p. 1181) in the “absence of patent falsity,

inherent improbability, or other reason to question [the

testimony’s] validity” (People v. Prunty (2015) 62 Cal.4th 59, 90).

Despite the various reasons for discounting Witness No.

1’s credibility and the minor conflicts between Witness No. 1’s

and Witness No. 3’s testimony, sufficient evidence supported the

jury’s determination of guilt. Patel’s body was discovered near

the Terminal Island Freeway on-ramp without his white Camry

or jewelry. Investigators found a trail of blood stretching 75 feet

from Patel’s body, which was consistent with the county medical

examiner’s testimony that Patel could have walked or run 75

feet after receiving his stab wounds, but not after receiving the

gunshot wound to the head, as well as with the spent shell

casings found both near Patel’s body and around 90 to 100 feet

away. Although the precise timeline of when Gomez arrived at

Witness No. 3’s home is unclear, she did testify that she saw a

white car parked in the driveway while Gomez was there.

Moreover, Witness No. 1 testified that Gomez eventually asked

him to burn the car in an apparent attempt to destroy evidence

that would inculpate Gomez. Witness No. 1 was instructed to

inspect the trunk “to make sure there wasn’t no blood in it,” and

Dunton testified that Gomez was worried about his fingerprints.

As noted, Witness No. 1 testified that before Gomez asked him

to burn the car, Gomez expressed that he had “hated to kill that

guy.” Two days after investigators found Patel’s body, they

found his car with its interior burnt.

In sum, a rational jury could have credited Witness No. 1’s

and Witness No. 3’s testimony that Gomez admitted to the

crimes against Patel, despite their inconsistencies, and could

also rationally conclude that Gomez possessed the car

immediately after Patel’s murder and attempted to destroy

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evidence of the crimes. Substantial evidence supports the jury’s

finding that Gomez is guilty of kidnapping, robbing, and

murdering Patel.

3. The Acosta and Dunton Murders

Gomez argues that although the evidence presented

supported the jury’s finding that Gomez used a shotgun to kill

Acosta and Dunton, there is insufficient evidence to support a

jury’s finding of premeditation and deliberation. The thrust of

the prosecution’s case for premeditation was that Grajeda and

Gomez’s Mexican Mafia ties required them to kill Acosta and

Dunton for their failure to pay “taxes” to the gang. But Gomez

argues that it was he who was marked for violent retaliation,

undermining the possibility that he cooperated with Grajeda to

execute Acosta and Dunton. Rather than coldly following the

dictates of the Mexican Mafia’s rules, Gomez argues that he

acted rashly out of fear those rules would be turned upon him.

First degree murder “has the additional elements of

willfulness, premeditation, and deliberation which trigger a

heightened penalty.” (People v. Chiu (2014) 59 Cal.4th 155,

166.) These elements require “more than a showing of intent to

kill; the killer must act deliberately, carefully weighing the

considerations for and against a choice to kill before he or she

completes the acts that caused the death.” (Ibid.) “ ‘ “The true

test is not the duration of time as much as it is the extent of the

reflection. Thoughts may follow each other with great rapidity

and cold, calculated judgment may be arrived at quickly.” ’ ”

(People v. Koontz (2002) 27 Cal.4th 1041, 1080, citing People v.

Mayfield (1997) 14 Cal.4th 668, 767.) We have previously noted

that evidence of planning, motive, and manner of killing is often

relevant to this inquiry. (People v. Halvorsen (2007) 42 Cal.4th

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379, 419–420 (Halvorsen), citing People v. Anderson (1968) 70

Cal.2d 15, 26–27; accord People v. Sandoval (2015) 62 Cal.4th

394, 424.)

The evidence supported the conclusion that Gomez was at

least aware of a calculated plan to execute Acosta and Dunton.

Witness No. 2 observed Gomez and Grajeda having a private

conversation the day before the murder. As Witness No. 1 and

Gomez approached the apartment, Gomez stated that “they sent

somebody to fuck [Dunton] and [Acosta] up.” And the moments

immediately preceding the murders strongly suggested that

Gomez was part of this calculated plan and that he intended to

enforce Mexican Mafia rules. Witness No. 1 testified that

Gomez was sitting at the dining room table with a pump shotgun

in front of him, while Grajeda held the shotgun belonging to

Dunton and Witness No. 1. Grajeda said “[y]ou know the rules,”

to which Gomez added “[y]eah, forward and backward.” Dunton

responded, “if I got to go, I’m going to go like a man.” Witness

No. 1 then heard four shots and footsteps as Grajeda and Gomez

fled the scene.

There was also evidence of motive. Both Gomez and

Grajeda had ties to the Mexican Mafia. Sergeant Valdemar

testified that someone who was placed on a “green light list,” i.e.,

marked for assault or murder by the Mexican Mafia, could

remove him or herself from the list by carrying out a murder on

the Mexican Mafia’s behalf. Witness No. 2 testified that on the

evening before Acosta and Dunton’s murder, Grajeda told him

that he wanted to take care of Gomez for failing to pay taxes to

the gang. Witness No. 2 and Grajeda then went to Dunton’s

house, where Witness No. 2 noticed that Gomez was “nervous”

and “walking back and forth,” and as noted, Gomez and Grajeda

had a private conversation. When Witness No. 2 and Grajeda

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drove away, Grajeda again stated that he wanted to kill Gomez

and possibly Dunton if he didn’t pay his taxes. This evidence is

consistent with the prosecution’s theory that Gomez killed

Acosta and Dunton on behalf of the Mexican Mafia in order to

remove himself from the green light list discussed by Valdemar.

Finally, the manner of killing tended to show that Gomez

acted with premeditation and deliberation: Acosta and Dunton

were shot from close range in the head or neck. (See Halvorsen,

supra, 42 Cal.4th at p. 422 [victims “were shot in the head or

neck from within a few feet, a method of killing sufficiently

‘ “particular and exacting” ’ to permit an inference that

defendant was ‘acting according to a preconceived design’ ”].)

As for Gomez’s claim that his role in the Acosta and

Dunton murders was an instant reaction to being targeted for

violent retaliation, the tenor of the conversation between

Acosta, Dunton, Grajeda, and Gomez was suggestive of a

situation over which Grajeda and Gomez had control. Dunton’s

words that “if I got to go, I’m going to go like a man” indicated

resignation to a death he believed to be imminent due to the

circumstances, an inference that would not have been lost on

Gomez. Grajeda’s reference to the “rules” requiring the killing

of Acosta and Dunton was affirmed and adopted by Gomez,

indicating that he had undertaken to apply Mexican Mafia rules

in concert with Grajeda. These facts are inconsistent with the

notion that Gomez acted rashly out of fear that he was about to

be executed. There is also little indication that Acosta and

Dunton attempted to fire upon Gomez first, even though Acosta

was armed at the time of his death. Since our task is not to

“resolve[] . . . credibility issues [or] evidentiary conflicts”

(Young, supra, 34 Cal.4th at p. 1181), and because we consider

the evidence in the “light most favorable to the judgment”

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(Elliott, supra, 53 Cal.4th at p. 585), we conclude there was

sufficient evidence to support the jury’s finding of premeditation

and deliberation.

B. Gomez’s Refusal to Appear in Court

One morning of trial, Gomez refused to come to court,

eventually causing a 38-minute delay in the day’s proceedings.

The court required presentation of evidence concerning Gomez’s

refusal to attend the proceedings and instructed the jury that it

could consider this evidence as tending to prove consciousness

of guilt. Gomez argues that the trial court’s instruction and

admission of the evidence not only constituted an abuse of

discretion, but also violated his federal and state constitutional

rights. He further claims that the trial court failed to act as a

neutral arbiter, thus violating his constitutional rights to due

process.

1. Background

On December 14, 1999, the second day of his trial, Gomez

refused to go to court for trial. The guard assigned to his cell

block alerted the court, which issued an extraction order. Upon

hearing of the order, Gomez got up and voluntarily came to

court. As a result of his delay, that day’s proceedings started 38

minutes late.

Before the jury was seated, the trial judge apprised the

parties of the situation and then said, “At some point this is

probably information that is going to go to the jury.” He

continued, “It’s now 40 minutes after the starting time was set,

so I’m not sure what the options are, but it does seem to me that

at least it will come out eventually in the penalty phase.” When

the jurors were seated, he informed them that “the reason for

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the delay may well be presented to you later during the trial. If

you’re frustrated by it, you’re no less frustrated than I was.”

At the next break, defense counsel moved for a mistrial.

He argued: “The court informed the jury that the reason for the

delay may be brought out in trial at some later time. The

inference that the court gave, and I think improperly gave to

this jury, was that it was a result of one of these two

defendants.” Even “if a delay was caused by Ruben Gomez,”

counsel continued, “I can’t think of a reason how that would be

admissible in the guilt phase of trial unless perhaps he were to

testify.” The court disagreed and said that “[i]t does show a

consciousness of guilt that Mr. Gomez . . . refused to come to

court as the court had ordered, so the jury will find out about it

one way or another through evidence.” The court then said it

would “do even more than that if this happens again,” noting “I

can call my own witnesses.” The court subsequently denied the

motion for a mistrial.

The next day, before the jury was seated, the trial court

elaborated on its previous comments. “[T]he first point,” the

court said, “is that a defendant in a capital trial has no right to

be absent.” The court then explained that its research suggested

that “evidence of conduct inconsistent with innocence may show

consciousness of guilt.” Finally, it noted that “the court on its

own motion may call witnesses and interrogate them under

Evidence Code Section 775.” In sum, the court explained, “my

concern is that I think it does show a consciousness of guilt that

a defendant refuses to come to court . . . . [¶] Someone who is

innocent will stay for trial in order to clear his name.”

Defense counsel objected, distinguishing the cases cited by

the court as concerning defendants escaping from custody or

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skipping bail. The trial court interjected: “No. The point is the

refusal to come to court . . . . Someone who is guilty . . . has a

reason not to come to court . . . . [¶] A person who is innocent

will stay for trial in order to clear his name and win lawful

liberty.” The court continued: “You may have another solution

to this, but I don’t plan to let it go. I don’t plan to let either

defendant play with the court and the jury and say I’m going to

come when I’m ready. . . . I was here until 8 o’clock last night

doing research on the computer trying to find a case exactly in

point, and I didn’t find one. So I’m going to be a pioneer.” The

court added: “We’re going to have witnesses testify . . . [¶] what

we will have is evidence on the subject, and the jury then can

draw its own conclusion as to why a defendant refuses to come

to court.”

The court then held a hearing regarding the admissibility

of the proposed testimony outside the presence of the jury under

Evidence Code section 402. The prosecution and the defense

examined Deputy Sheriff John Ganarial, who had been assigned

to take Gomez to court on the morning of December 14, 1999.

Ganarial testified that Gomez said “fuck court” several times

when Ganarial asked him to get ready for court around 5:50 a.m.

After Ganarial told him several more times to get ready, Gomez

responded, “They bring me back whenever they want, I’ll go to

court whenever I want.” Ganarial testified that Gomez was

ultimately escorted from the cell to court around 9:00 a.m. that

morning. Ganarial further testified that Gomez had otherwise

been “cooperative as far as being transported . . . to the court for

purposes of trial.” After Ganarial’s testimony, the court said, “I

do think that the initial incident that we were talking about on

December 14th showed a consciousness of guilt.” Defense

counsel then repeated his objection to the evidence and argued

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that no precedent holds that the jury may infer consciousness of

guilt from an in-custody defendant’s refusal to attend trial. At

the end of the hearing, the trial court ruled that Ganarial’s

testimony was admissible to show consciousness of guilt.

On the sixth day of trial, the prosecution called Ganarial

to testify before the jury about Gomez’s delay. Ganarial

explained that on the morning in question, he attempted several

times to get Gomez to leave his cell for court to no avail.

Ganarial then notified the court bailiff of Gomez’s refusal; the

bailiff subsequently informed him that there was an extraction

order for Gomez. Soon after being informed of this order, Gomez

voluntarily came to court. In the course of his testimony,

Ganarial also said that Gomez was housed in a disciplinary unit

of the jail, that he was waist-chained and handled by a

“movement team” when he was transported to court, that he was

fed through a slot in his cell door, and that on the morning in

question, he responded to Ganarial’s wake-up calls with “fuck

court” multiple times. After the court excused Ganarial, the

defense moved to strike the testimony as irrelevant, which the

court denied.

At the conclusion of the trial, the judge gave the following

instruction to the jury: “If you find that the defendant Gomez

voluntarily absented himself from this trial by refusing to come

to court, you may consider that as a circumstance tending to

prove a consciousness of guilt. That conduct, however, is not

sufficient by itself to prove guilt, and its weight and significance,

if any, are for you to decide.”

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2. Improper Instruction and Admission of Evidence

as to Gomez’s Consciousness of Guilt

a. Forfeiture

Reviewing courts will generally not consider a challenge

to the admissibility of evidence unless there was a “ ‘ “specific

and timely objection in the trial court on the same grounds

sought to be urged on appeal.” ’ ” (People v. Champion (1995) 9

Cal.4th 879, 918, quoting People v. Raley (1992) 2 Cal.4th 870,

892; see Evid. Code, § 353, subd. (a).) The Attorney General

contends that Gomez objected only under Evidence Code section

352, thus forfeiting any other challenges to the admission of

evidence regarding Gomez’s refusal to come to court.

We disagree. The record shows that counsel argued

repeatedly and at length that the admission of the evidence

would constitute state-law error. First, in moving for a mistrial

on the basis of the trial court’s initial statements to the jury,

defense counsel argued, “If a delay was caused by Ruben Gomez,

I can’t think of how that would be admissible in the guilt phase

of trial.” Then, after the court initially expressed its intention

to introduce evidence of Gomez’s delay, defense counsel

responded, “I’d ask the court to reconsider its legal analysis of

the situation,” and began to argue that the delay could not

support an inference of consciousness of guilt before being cut

off by the court. And after the section 402 hearing, defense

counsel had another extended argument over whether Gomez’s

delay showed a consciousness of guilt. At that point, defense

counsel also raised the issue of character evidence, noting that

the evidence was “prejudicial because it’s another form . . . of

the court or the prosecution putting on character evidence when

you can’t really do that.” Finally, after Ganarial’s testimony

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before the jury, counsel moved to “strike his testimony as being

irrelevant to the charges for what Gomez is presently on trial.”

But even if these objections were not specific enough to be

preserved for appeal, Gomez’s claims would still be reviewable.

“Reviewing courts have traditionally excused parties for failing

to raise an issue at trial where an objection would have been

futile . . . .” (People v. Welch (1993) 5 Cal.4th 228, 237.) Here,

the record suggests that the trial court would have rejected any

objection to the testimony. During the initial argument, the

court told defense counsel, “You may have another solution to

this, but I don’t plan to let it go,” and explained that even if it

could not “find a case exactly in point,” it was “going to be a

pioneer.” The trial court added: “I’m not going to let this go.

I’m not going to let the defendants control the court.” Then,

after hearing Ganarial’s testimony at the section 402 hearing,

the court told defense counsel, “I have no doubt but what it

shows a consciousness of guilt.” It was reasonable for defense

counsel to believe, based on the trial court’s statements, that any

further objections regarding the admission of the evidence

would be futile. For this reason too, Gomez’s evidentiary claims

are not forfeited.

Neither is Gomez’s challenge to the jury instruction

forfeited. We have held that objections at trial are not necessary

to preserve appellate review of allegedly erroneous

consciousness of guilt instructions. (See People v. Hannon

(1977) 19 Cal.3d 588, 600; § 1259.) In any case, defense counsel

argued at length that no authority supported the trial court’s

conclusion that Gomez’s refusal to come to court possibly

indicated consciousness of guilt.

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Finally, Gomez has not forfeited his constitutional claims.

In People v. Partida (2005) 37 Cal.4th 428, we explained that,

although a defendant is barred from bringing due process claims

on grounds distinct from those raised at trial, “defendant may

argue an additional legal consequence of the asserted

error . . . is a violation of due process.” (Id. at p. 438.) The

defendant in Partida had unsuccessfully objected at trial to the

admission of evidence under section 352. On appeal, he argued

that the trial court’s rejection of this argument violated his due

process rights; this Court held that his claim was not forfeited.

(Partida, at pp. 438–439.) Here, Gomez argued at trial that the

consciousness of guilt instruction was unsupportable by

evidence of his delay and that this evidence was irrelevant, more

prejudicial than probative, and impermissible character

evidence. On appeal, he argues that the trial judge’s rejection

of these arguments violated his due process rights — that is, he

argues that “an additional legal consequence of the asserted

error” was a violation of his due process rights. (Id. at p. 438.)

As in Partida, “[t]his he may do.” (Id. at p. 439.)

b. Merits

“ ‘It is an elementary principle of law that before a jury can

be instructed that it may draw a particular inference, evidence

must appear in the record which, if believed by the jury, will

support the suggested inference.’ ” (People v. Alexander (2010)

49 Cal.4th 846, 920–921.) “No evidence is admissible except

relevant evidence” (Evid. Code, § 350), and “relevant evidence”

is defined as “evidence . . . having any tendency in reason to

prove or disprove any disputed fact that is of consequence to the

determination of the action” (id., § 210). “The most common

evidentiary device” is the “permissive inference,” “which

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allows — but does not require — the trier of fact to infer the

elemental fact from proof by the prosecutor of the basic one and

which places no burden of any kind on the defendant.” (County

Court of Ulster County, N.Y. v. Allen (1979) 442 U.S. 140, 157

(Ulster County).)

We have not before considered whether a defendant’s brief

refusal to attend trial proceedings may give rise to an inference

of consciousness of guilt. But, as the Attorney General points

out, we have previously held in different circumstances that a

defendant’s absence from trial can support such an inference. In

People v. Carrera (1989) 49 Cal.3d 291, we held that evidence

concerning a defendant’s escape from prison after being arrested

and charged was admissible as indicating a consciousness of

guilt. (Id. at pp. 313–314; see People v. Schafter (1911) 161 Cal.

573 [evidence of a plan to escape prison while awaiting trial was

admissible as showing a consciousness of guilt].) And in People

v. Snyder (1976) 56 Cal.App.3d 195, the Court of Appeal

concluded that after the defendant skipped bail and missed the

guilt phase of his trial, the trial court properly instructed the

jury that it could consider the defendant’s absence in

determining his guilt. (Id. at p. 199; see People v. Sherren (1979)

89 Cal.App.3d 752 [finding no error in the trial court taking

judicial notice that the out-of-custody defendant missed two

pretrial hearings and instructing the jury that flight can show a

consciousness of guilt].) These holdings are reflected in the

pattern jury instruction that says flight, attempted flight,

escape, or attempted escape after the commission of a crime

“may be considered . . . in deciding whether a defendant is guilty

or not guilty.” (CALJIC No. 2.52.)

Gomez argues that his temporary refusal to attend trial is

analogous to other situations in which we have indicated that a

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jury should not be permitted to consider a defendant’s absence.

In People v. Sully (1991) 53 Cal.3d 1195, the defendant yelled at

jurors after they found him guilty of murder and he informed

the court that he would continue to disrupt the proceedings if he

were present. (Id. at p. 1238.) The court subsequently allowed

the defendant to be absent from the penalty phase, which

resulted in a capital sentence. (Id. at p. 1240.) On appeal, we

held that although the trial court informed the jury that the

defendant was voluntarily absent, “[a]n instruction to disregard

defendant’s absence would have been proper on defendant’s

timely request.” (Id. at p. 1241.)

We reaffirmed Sully and extended its holding to the guilt

phase of trial in People v. Medina (1995) 11 Cal.4th 694. There,

the defendant was disruptive during his murder trial’s guilt

phase and was allowed to leave; he chose to remain absent for

the duration of the guilt and penalty phases of the trial. (Id. at

p. 737.) On appeal, he argued that the court on its own initiative

should have instructed the jury to disregard his absence. (Id. at

p. 739.) Citing Sully, we held that the trial court had no duty to

instruct the jury to disregard the defendant’s absence but

suggested that such an instruction would have been proper if

requested. (Id. at p. 740.)

We conclude that this case has more in common with the

Sully line of cases than the cases cited by the Attorney General

involving prison escapes and skipping bail. Unlike the absences

in Carrera or Snyder, Gomez’s brief refusal to attend court was

not an attempt to elude prosecution or punishment. Ganarial’s

testimony suggests that Gomez intended merely to disrupt the

proceedings temporarily. Ganarial recounts Gomez saying,

“They bring me back whenever they want, I’ll go to court

whenever I want.” This disruptive intent is further supported

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by the obscenities that Gomez repeatedly directed at the court

during the delay.

The Attorney General presents two additional theories for

why evidence of Gomez’s delay could support a permissive

inference of consciousness of guilt. First, he cites several cases

that have held that in-custody defendants’ efforts to prevent the

production of evidence could support an inference of

consciousness of guilt. (See, e.g., People v. Watkins (2012) 55

Cal.4th 999, 1027 [defendant’s refusal to participate in a lineup

could indicate consciousness of guilt]; People v. Farnam (2002)

28 Cal.4th 107, 164 [defendant’s refusal to provide a hair or

blood sample]; People v. Ellis (1966) 65 Cal.2d 529, 536–539

[defendant’s refusal to provide a voice sample].) These cases are

supported by a series of pattern jury instructions regarding

efforts to fabricate or suppress evidence. (See CALJIC No. 2.03

[making false or misleading statements about the charged crime

can support an inference of consciousness of guilt]; CALJIC No.

2.04 [trying to fabricate evidence or induce false testimony can

support an inference of consciousness of guilt]; CALJIC No. 2.05

[authorizing someone else to fabricate evidence can support an

inference of consciousness of guilt]; CALJIC No. 2.06

[attempting to suppress adverse evidence can support an

inference of consciousness of guilt].)

These cases and jury instructions concern situations in

which a defendant seeks to interfere with evidence, presumably

out of fear that it would incriminate them. Here, by contrast,

Gomez attempted neither to thwart the production of evidence

nor to fabricate false evidence.

The Attorney General also urges that we apply a line of

cases upholding permissive inferences where the prosecution

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presented evidence of defendants acting in ways that innocent

people would not. For example, we upheld a permissive

inference of consciousness of guilt based on the fact that the

defendant had tattooed the number “187,” the Penal Code

section defining murder, on his forehead after the alleged

murder was committed because “it would be unlikely that an

innocent person would so advertise his connection to murder.”

(People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on

another point as recognized in People v. Harris (2008) 43 Cal.4th

1269, 1306; see also People v. Hartsch (2010) 49 Cal.4th 472,

505.) But this case presents a different scenario; there is no

reason to think Gomez’s refusal to come to court was indicative

of his consciousness of guilt. He may simply have been tired; as

Ganarial testified, inmates on trial are woken before 6:00 a.m.

Or he may have been frustrated by the trial process and wanted

to assert more control over it. Cases like Ochoa do not support

the Attorney General’s argument that evidence of Gomez’s delay

was properly admissible to support an inference of

consciousness of guilt.

In sum, the evidence concerning Gomez’s brief refusal did

not have a “tendency in reason to prove” consciousness of guilt;

it therefore should have been excluded as irrelevant. (Evid.

Code, § 210.)

For the same reasons, the admission of this evidence and

the jury instruction violated Gomez’s rights to due process. “The

due process clauses of the federal Constitution . . . require a

relationship between the permissively inferred fact and the

proven fact on which it depends.” (People v. Mendoza, supra, 24

Cal.4th at p. 180.) Permissive inferences are therefore

constitutionally suspect when, “under the facts of the case, there

is no rational way the trier could make the connection permitted

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by the inference.” (Ulster County, supra, 442 U.S. at p. 157.) In

other words, “ ‘[a] permissive inference violates the Due Process

Clause only if the suggested conclusion is not one that reason

and common sense justify in light of the proven facts before the

jury.’ ” (People v. Yeoman (2003) 31 Cal.4th 93, 131, quoting

Francis v. Franklin (1985) 471 U.S. 307, 314–315.) Here, the

trial court’s proposed inference—that Gomez’s brief refusal to

attend trial proceedings reflected consciousness of guilt—was

“ ‘not one that reason and common sense justify in light of the

proven facts before the jury.’ ” (Ibid.) Thus, the trial court’s

decision to admit evidence regarding Gomez’s refusal to attend

court and its jury instruction on consciousness of guilt violated

Gomez’s constitutional rights to due process.

c. Prejudice

Although the trial court erred in allowing the jury to

consider the circumstances of Gomez’s brief absence, we

conclude that the errors were harmless under the applicable

state and federal standards. (People v. Watson (1956) 46 Cal.2d

818, 836 (Watson); People v. Brown (1988) 46 Cal.3d 432, 447–

448 (Brown); Chapman v. California (1967) 386 U.S. 18, 24

(Chapman).) Gomez contends that the trial court’s errors, “by

[their] nature, provided an all-purpose rejoinder . . . to jurors’

doubts about Gomez’s guilt” and “invited jurors [at the penalty

phase] to assuage any lingering doubts about Gomez’s guilt with

the thought that if Gomez himself knew he was guilty, he must

be.” Gomez also argues that Deputy Sheriff Ganarial’s

testimony regarding the manner by which Gomez was held in

custody and brought to court was inherently prejudicial.

But the fact that the jury did not find Gomez guilty on all

counts suggests that the trial court’s errors did not have the

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sweeping effect that Gomez contends. Moreover, the

prosecution did not rely significantly on Gomez’s absence or the

circumstances surrounding that absence and made no mention

of the episode during its closing argument.

Further, in light of the considerable evidence presented

over the months-long trial, we conclude that the trial court’s

errors did not carry material weight at the guilt phase. Salcedo

himself testified that Gomez robbed him at his home. Forensic

evidence gathered from a nearby car placed Gomez in the area

of Raul Luna’s house around the time of his murder, as did the

testimony of Luna’s neighbor, William Owens. Luna’s cellphone

was used to call Robert Dunton’s house, where Gomez had been

staying, and Witness No. 1 testified that Gomez brought the

phone to Dunton’s house, where it was later recovered by the

police. Moreover, both Witness No. 1 and Witness No. 3 testified

as to Gomez’s role in the crimes against Rajendra Patel, and

their accounts were consistent with the forensic evidence

gathered on the freeway on-ramp and from Patel’s car. Witness

No. 1 also testified that Gomez was present at the murders of

Acosta and Dunton, and the testimony of Witness No. 1, Witness

No. 2, and Sergeant Valdemar tended to show that Gomez killed

Acosta and Dunton on behalf of the Mexican Mafia. Detective

Winter also testified that in the course of investigating the

murder of Jesus Escareno, Gomez mentioned “a couple of guys

that were shot and brains were splattered all over the place,”

which matched the description of the Acosta and Dunton

murders. And Gomez’s fingerprints were found on a shotgun

that matched the spent cartridges found at the Acosta and

Dunton murder scene.

We are also not convinced that the trial court’s errors

influenced the jury’s decision at the penalty phase. Gomez was

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accused of committing five murders in less than two months,

and the jury convicted him of committing four of those murders.

The prosecution also offered substantial evidence concerning

additional violent acts committed by Gomez, both before the

crimes at issue here and while in jail awaiting trial for those

crimes, none of which Gomez disputed. In contrast, the defense

presented relatively little mitigation evidence, consisting solely

of expert testimony regarding high security state prisons and

the testimony of his sister.

In light of the foregoing, we conclude that the trial court’s

errors did not affect the jury’s verdicts in this case. (Watson,

supra, 46 Cal.2d at p. 836; Brown, supra, 46 Cal.3d at pp. 447–

448; Chapman, supra, 386 U.S. at p. 24.)

3. Claim of Trial Court Bias

Gomez claims that the trial court not only erred in

admitting the evidence regarding his brief refusal to attend trial

and permitting the jury to infer consciousness of guilt from it,

but also demonstrated improper judicial bias in violation of his

constitutional rights.

As with Gomez’s other claims, the Attorney General

argues that Gomez’s failure to raise the trial court’s bias below

precludes us from considering it on appeal. But we have held

that a defendant’s failure to object to judicial bias “does not

preclude review . . . when objecting would be futile.” (People v.

Sturm (2006) 37 Cal.4th 1218, 1237.) In particular, we reasoned

in Sturm that “the evident hostility between the trial judge and

defense counsel” left defense counsel in the fundamentally

unfair position of either objecting to the judicial misconduct and

risking retaliation against his client or sacrificing the claim on

review. (Ibid.)

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The record reveals a similarly unfair choice for defense

counsel here. As described above, the trial judge was clear in

his intent to present the evidence concerning Gomez’s refusal to

attend court. In response to defense counsel’s argument that

the brief absence was irrelevant to Gomez’s consciousness of

guilt, the trial judge referred to a time he had jailed a lawyer

after trial on contempt charges and then said, “All I’m saying is

that you challenged me, and I’m responding to the challenge.”

He continued, “You did move for a mistrial making it a major

issue . . . . This is what I’m doing.” Given the trial court’s

expressed intentions, it is reasonable to believe that any

objection concerning judicial bias would have futile. Thus,

Gomez has not forfeited his claim that the trial court failed to

serve as a neutral arbiter.

Nevertheless, we reject the claim on its merits. We have

explained that trial judges violate due process when they

“ ‘officiously and unnecessarily usurp[] the duties of the

prosecutor’ ” and appear to be “ ‘allying . . . with the

prosecution.’ ” (People v. Clark (1992) 3 Cal.4th 41, 143 (Clark),

quoting People v. Campbell (1958) 162 Cal.App.2d 776, 787.)

But in reviewing such claims, our role “ ‘is not to determine

whether the trial judge’s conduct left something to be desired,

or even whether some comments would have been better left

unsaid. Rather, we must determine whether the judge’s

behavior was so prejudicial that it denied [the defendant] a fair,

as opposed to a perfect, trial.’ ” (People v. Snow (2003) 30 Cal.4th

43, 78.)

Although we are troubled by the trial judge’s insistence on

being “a pioneer” and his encouragement of Ganarial’s

testimony, his actions do not amount to a constitutional

violation. To be sure, the trial judge might have “ ‘officiously

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and unnecessarily usurp[ed] the duties of the prosecutor’ ” if he

had introduced evidence as to Gomez’s delay on behalf of the

court, as originally discussed. (Clark, supra, 3 Cal.4th at

p. 143.) But the judge did not do so here. Indeed, he recognized

the problems that would arise if the court called Ganarial, so the

prosecution agreed to call Ganarial to testify before the jury as

a prosecution witness.

We also disagree with Gomez’s claim that the trial court

improperly arranged for the presentation of Ganarial’s

testimony “in an effort to punish Gomez for his disrespect to the

court.” We cannot say, based on this record, that the trial court

admitted the evidence and instructed the jury on consciousness

of guilt out of a desire to harm or disadvantage Gomez. Rather,

the trial court appears to have acted pursuant to its duty to

control the trial proceedings (§ 1044) and under the erroneous

but honest belief that a defendant’s refusal to attend trial was

relevant evidence as to a defendant’s consciousness of guilt.

In sum, we reject Gomez’s claim that the trial court failed

to serve as a neutral arbiter. In so doing, we emphasize that

although Evidence Code section 775 permits trial courts to call

witnesses and interrogate them on its own motion, judges

should resort to this power only where they “ ‘ “believe[] that

[they] may fairly aid in eliciting the truth, in preventing

misunderstanding, in clarifying the testimony or covering

omissions, in allowing a witness his right of explanation, and in

eliciting facts material to a just determination of the cause.” ’ ”

(People v. Hawkins (1995) 10 Cal.4th 920, 948.) Although

“ ‘[s]ection 1044 . . . vests the trial court with broad discretion to

control the conduct of a criminal trial’ ” (People v. Bryant, Smith

and Wheeler (2014) 60 Cal.4th 335, 386, quoting People v.

Calderon (1994) 9 Cal.4th 69, 74–75), such discretion must be

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exercised impartially in order to protect defendants’

constitutional rights to due process and to a fair trial. Trial

courts may employ different methods in order to ensure that a

disruptive defendant does not derail a trial; for example, as it

did here, the court may impose a standing extraction order to

compel a defendant to attend proceedings. What a trial court

cannot do is permit the jury to infer guilt in a manner not

countenanced by law.

C. Admission of Expert Testimony on the Mexican

Mafia

Gomez challenges the expert testimony of Sergeant

Richard Valdemar regarding the Mexican Mafia as more

prejudicial than probative, and as violative of his constitutional

rights to due process and a fair trial. Although Gomez concedes

that “some gang evidence may have probative value where a

crime is alleged to be gang-related and the gang evidence is

offered to prove motive,” he claims that Valdemar’s “testimony

about the Mexican Mafia and about shocking crimes committed

on its behalf . . . ranged far beyond any proper purpose, serving

only to instill fear [among the jurors].” As evidence of the

testimony’s inflammatory nature, Gomez points to notes passed

by members of the jury to the trial court asking whether the

jurors were “at risk” of gang violence and expressing “concern[]

about possible harassment or problems after [the jurors] are

dismissed once the verdicts are read.”

We have previously noted that “[e]vidence of the

defendant’s gang affiliation — including evidence of the gang’s

territory, membership, signs, symbols, beliefs and practices,

criminal enterprises, rivalries, and the like — can help prove

identity, motive, modus operandi, specific intent, means of

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applying force or fear, or other issues pertinent to guilt of the

charged crime. [Citations.]” (People v. Hernandez (2004) 33

Cal.4th 1040, 1049.) But, “even where gang membership is

relevant, because it may have a highly inflammatory impact on

the jury trial courts should carefully scrutinize such evidence

before admitting it.” (People v. Williams, supra, 16 Cal.4th at

p. 193.) On appeal, Gomez does not argue that the trial court

should have excluded Valdemar’s testimony in its entirety.

Rather, Gomez contends that portions of the testimony were not

relevant to establish Valdemar’s expertise or to prove the

prosecution’s theory that Gomez killed Acosta and Dunton on

the Mexican Mafia’s behalf.

Assuming Gomez did not forfeit his claims by failing to

make more timely or specific objections below (see People v.

Valdez (2012) 55 Cal.4th 82, 129, fn. 30 [“ ‘Because the question

whether defendants have preserved their right to raise this

issue on appeal is close and difficult, we assume [they] have

preserved their right, and proceed to the merits.’ ”]), we conclude

that portions of Valdemar’s testimony should have been

excluded as irrelevant, but that the admission of this testimony

did not affect the verdicts.

First, we agree with Gomez that parts of Valdemar’s

testimony offered to prove Valdemar’s “expertise” on gangs were

more prejudicial than probative, and should have been excluded.

Gomez points specifically to Valdemar’s testimony that “just

about every crime that you can imagine that’s committed on the

outside in some way was committed [by gang members] on the

inside of the [county] jail facility,” including “assaults, battery,

murder, the making of contraband weapons, the transportation,

sales and use of narcotics, robbery, extortion and rape.” Gomez

further challenges Valdemar’s statement that “a small minority,

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normally members of hard core gangs were creating much of the

problems that we were experiencing, so by isolating these people

and placing them in special units, we eliminated a lot of the

assaults that were going on.”

This evidence went well beyond its stated purpose of

demonstrating that Valdemar had “contact with gang members

in the [county] jail,” which had already been established by

Valdemar’s earlier testimony describing the nature of his work

and his “interaction with gang members in the county jail while

[he was] a deputy assigned to the county jail.” Moreover, to the

extent that the Attorney General contends this evidence was

necessary to help the jury “understand the complex rules of the

Mexican Mafia” and to “explain why [Gomez] would comply with

Mexican Mafia orders,” we disagree that these portions of

Valdemar’s testimony were more than “tangentially relevant”

(People v. Cox (1991) 53 Cal.3d 618, 660, disapproved of on other

grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22)

to that purpose. This portion of Valdemar’s testimony discussed

general gang activity in county jails rather than the specific

activity of the Mexican Mafia outside of those jails.

We further agree with Gomez that Valdemar’s testimony

regarding “the history of the Mexican Mafia, in particular where

and when it started and how it started,” as well as Valdemar’s

statement that a certain movie “fairly accurately depicts the

early years of the Mexican Mafia,” were not “ ‘necessary to

furnish the jury a context for understanding [the prosecution’s]

theory’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1063,

quoting People v. Roberts (1992) 2 Cal.4th 271, 299) regarding

the Acosta and Dunton murders. That the prosecution believed

that Gomez murdered Acosta and Dunton on behalf of the

Mexican Mafia did not open the door to any and all evidence

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regarding the gang. (Cf. Masters at p. 1064 [finding no abuse of

discretion where the trial court admitted gang-related evidence

pertinent to a particular crime but “made a painstaking effort to

exclude [irrelevant or unduly prejudicial] evidence”].) In the

absence of any apparent connection between the testimony

regarding the early history of the Mexican Mafia and the Acosta

and Dunton murders several decades later, and in light of the

generally inflammatory nature of this gang-related evidence,

the challenged testimony should have been excluded.

But we decline to find that the trial court erred by

admitting the other portions of Valdemar’s testimony that

Gomez challenges on appeal. The testimony indicating that

murder was the primary topic of conversation at Mexican Mafia

meetings surveilled by Valdemar, and the testimony suggesting

that there have been “several instances . . . in the history of the

Mexican Mafia” of “a brother kill[ing] another,” was relevant to

explain why Gomez would kill Acosta and Dunton, with whom

he occasionally lived. Moreover, in light of our conclusion in

People v. Gonzales (2006) 38 Cal.4th 932, 944–947 (Gonzales),

that the trial court did not err by admitting expert testimony

opining generally on the possibility that gang members may

intimidate witnesses and commit perjury, we similarly find no

error in the trial court’s admission of testimony suggesting that

“people will come into court and lie for [a Mexican Mafia]

associate or . . . member” and “that the [Mexican Mafia] expects

that loyal gang members would use any means possible to delay,

obstruct or reverse any kind of a criminal prosecution against

its members.” Much like the expert who testified in Gonzales,

the expert here did not opine about any individual witness’s

credibility, but rather focused his testimony on the Mexican

Mafia’s general reputation.

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In any event, we also disagree with Gomez that the

admission of any of the challenged testimony affected the

outcome of the case. Gomez argues that the jury relied on the

testimony as impermissible character evidence and that the

testimony caused the jurors to decide the entire case, including

Gomez’s punishment, based on fear. But, as Gomez concedes,

the court properly admitted evidence suggesting that Gomez

killed Acosta and Dunton on behalf of the Mexican Mafia, so the

jury would have learned about the gang and at least one of its

violent practices even if the challenged testimony had been

excluded. As for Gomez’s contention that the testimony created

an “atmosphere of fear” among the jurors such that they acted

out of “concern for their own safety,” Gomez fails to explain how

the jurors’ deliberations or verdicts at the guilt phase or the

penalty phase were influenced by fear or purported safety

concerns, and we cannot readily discern how the outcome was

affected ourselves. In light as well of the substantial evidence

presented during both the guilt and the penalty phase (see ante,

at pp. 67–68), we conclude that the trial court’s error does not

warrant reversal. (Watson, supra, 46 Cal.3d at p. 836;

Chapman, supra, 386 U.S. at p. 24.)

D. Admission of Acosta Note

Gomez claims that the trial court’s admission of the note

left by Acosta to his wife violated Gomez’s rights under the

confrontation clause of the Sixth Amendment to the federal

Constitution. (Crawford v. Washington (2004) 541 U.S. 36, 38

(Crawford).) In his closing argument, the prosecutor described

this note as “the testimony of Robert Acosta from his grave” and

argued that Acosta wrote it to inform the reader that he was

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going to Dunton’s apartment for a meeting with Grajeda, “a

known Mexican Mafia associate.”

The Attorney General argues that Gomez forfeited his

confrontation clause claim because he objected only on hearsay

grounds, relying primarily on People v. Riccardi (2012) 54

Cal.4th 758, 827, fn. 33. But we overruled Riccardi on this point

in People v. Rangel (2016) 62 Cal.4th 1192 (Rangel), where we

held that a defendant in a case tried before Crawford, like

Gomez, “does not forfeit a Crawford challenge by failing to raise

a confrontation clause objection at trial.” (Rangel, at p. 1215;

see People v. Clark (2016) 63 Cal.4th 522, 563.)

In Crawford, the high court held that the Sixth

Amendment prohibits the admission of a witness’s “testimonial”

out-of-court statements offered for their truth unless the

witness is unavailable and the defendant had a prior

opportunity for cross-examination. (Crawford, supra, 541 U.S.

at pp. 59–60.) There is no dispute that Acosta was unavailable

at trial and that Gomez had no prior opportunity to cross-

examine him. Accordingly, Gomez’s confrontation clause claim

turns solely on the question whether the Acosta note was

testimonial.

As we recently observed, “[t]hroughout its evolution of the

Crawford doctrine, the high court has offered various

formulations of what makes a statement testimonial but has yet

to provide a definition of that term of art upon which a majority

of justices agree.” (People v. Sanchez (2016) 63 Cal.4th 665,

687.) Nevertheless, “we have discerned two requirements.

First, ‘the out-of-court statement must have been made with

some degree of formality or solemnity.’ [Citation.] Second, the

primary purpose of the statement must ‘pertain[] . . . in some

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fashion to a criminal prosecution.’ [Citations.]” (People v. Leon

(2015) 61 Cal.4th 569, 603, quoting People v. Lopez (2012) 55

Cal.4th 569, 581–582.) More specifically, the primary purpose

test asks whether the statements at issue “are given in the

course of an interrogation or other conversation whose

‘ “primary purpose . . . is to establish or prove past events

potentially relevant to later criminal prosecution.” ’ (Rangel,

supra, 62 Cal.4th at p. 1214.) In its most recent application of

the primary purpose test, the high court cautioned that

“[s]tatements made to someone who is not principally charged

with uncovering and prosecuting criminal behavior are

significantly less likely to be testimonial than statements given

to law enforcement officers.” (Ohio v. Clark (2015) __ U.S. __

[135 S.Ct. 2173, 2182]; see also Sanchez, supra, 63 Cal.4th at

p. 694, fn. 19.)

We conclude that the Acosta note was not testimonial

because the record does not establish that Acosta left the note

for his wife for purposes of criminal investigation or prosecution.

According to Gomez, the fact that Acosta left the note in a Bible,

memorialized the date and time, and signed the note with his

full name supports a finding that the statements in the note

were testimonial “because they were made with the intent that

they would be communicated to law enforcement and used in

court.” But there are equally plausible alternative explanations

that do not suggest a testimonial intent. Acosta may have

simply wanted his wife to know what had happened if he did not

return from the meeting, or he may have wanted her to pass the

note along to associates who could retaliate against Gomez and

Grajeda. That the note referred to Grajeda and Dunton by their

“street names” rather than their full names is an additional

reason to believe that the note was not specifically intended for

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law enforcement. This is not a scenario where the evidence

clearly indicates that the recipient was merely a conduit for

conveying the declarant’s statements to the police. (Cf. State v.

Jensen (2007) 299 Wis.2d 267, 286 [a letter addressed to police

and given to a friend with directions to send to police if

“ ‘anything happen[ed]’ ” to her was testimonial].) In view of the

high court’s guidance that statements “made to someone who is

not principally charged with uncovering and prosecuting

criminal behavior are significantly less likely to be testimonial”

(Ohio v. Clark, supra, 135 S.Ct. at p. 2182), we conclude that the

Acosta note was not testimonial and therefore reject Gomez’s

confrontation clause claim.

Even if the Acosta note were testimonial, any error was

harmless beyond a reasonable doubt. (Delaware v. Van Arsdall

(1986) 475 U.S. 673, 680; Chapman, supra, 386 U.S. at p. 24.)

The note does not mention Gomez, and there is no dispute that

Gomez participated in the killing of Acosta and Dunton.

Nevertheless, Gomez contends that the Acosta note was the only

evidence corroborating Witness No. 1’s testimony that Grajeda

was present at Dunton’s apartment; without this evidence,

Gomez continues, the prosecution’s theory that Gomez

committed a premeditated and deliberate killing at the behest of

Grajeda would have been severely undermined. But, as

explained above (see ante, at pp. 53–54), there is significant

evidence showing that Gomez murdered Acosta and Dunton as

part of a calculated plan on behalf of the Mexican Mafia, none of

which relies on the Acosta note. By contrast, little if any

evidence indicates that Acosta and Dunton attempted to attack

Gomez first and that Gomez shot them out of fear. Gomez

suffered no prejudice even assuming that the admission of the

Acosta note was error under Crawford.

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E. Griffin Error

In his closing argument, the prosecutor discussed evidence

that corroborated Witness No. 1’s testimony implicating Gomez

in the Escareno murder. In particular, the prosecutor pointed

to Detective Winter’s trial testimony that Gomez “knew facts of

the case which had not been revealed to the press” — namely,

that the victims’ “wallets were missing.” He noted that the

defense had presented only a couple of news articles and that

“those articles don’t give Ruben Gomez enough information to

have told this to Detective Winter.” The prosecutor then said

“there’s something even more important”: “There is absolutely

no evidence that Ruben Gomez saw those articles. There is

absolutely no evidence that Ruben Gomez read those articles.

There is absolutely no evidence that Ruben Gomez reads any

newspaper.”

Gomez contends that the prosecutor’s comments violated

Griffin v. California (1965) 380 U.S. 609 (Griffin). Griffin held

that “the prosecution may not comment upon a defendant’s

failure to testify on his or her own behalf. Its holding does not,

however, extend to bar prosecution comments based upon the

state of the evidence or upon the failure of the defense to

introduce material evidence or to call anticipated witnesses.”

(People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford); see

People v. Brady (2010) 50 Cal.4th 547, 565–566.) At the same

time, “we have held that a prosecutor may commit Griffin error

if he or she argues to the jury that certain testimony or evidence

is uncontradicted, if such contradiction or denial could be

provided only by the defendant, who therefore would be required

to take the witness stand.” (Bradford, at p. 1339.)

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The prosecutor’s comments do not amount to Griffin error.

The prosecutor did not refer to Gomez’s decision not to testify.

Rather, the prosecutor commented that the defense had failed

“to introduce material evidence” — that is, evidence that Gomez

had read about the Escareno murder in the newspaper.

(Bradford, supra, 15 Cal.4th at p. 1339.) Although Gomez

argues that only his own testimony could have contradicted the

prosecutor’s claim that Gomez did not read the articles or

newspapers in general, Gomez could have presented other

evidence to that effect. As the trial court explained, “[t]here

could, for example, have been evidence that [Gomez] subscribed

to the San Pedro Pilot, that he was an avid reader and others

around him, anyone associated with him knew that he read the

paper and commented to others about reading.” Accordingly,

the prosecutor did not violate Griffin by referring to Gomez’s

failure to introduce such evidence.

F. Admonitions Regarding Notetaking and Read-

back of Testimony

Gomez argues that by sternly advising the jury against

“not taking enough notes,” the trial court “elevated the

importance of juror notetaking over observation of the

witnesses” and therefore interfered with the jury’s “unique and

exclusive responsibility and power to evaluate the credibility of

witnesses.” Gomez highlights a number of admonitions by the

trial judge, including that he would be “very discouraged” to “see

jurors just sitting there with their notes in their laps . . . and it

won’t be recorded in your memories because you aren’t trying to

take those notes”; that the “thing that infuriates [the trial court]

the most about jurors is when they first go in to deliberations

and the first hour or two [the court] get[s] a note sent out saying

[the jury] want[s] a reread of the testimony . . . ”; that jurors

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should “take a lot of notes”; and that taking notes was part of

their “job in recording the information.” He also suggests that

the trial court tried to discourage the read-back of testimony by

not only failing to state expressly that the jury had a right to

rehear testimony, but also noting that any such requests could

not be accommodated immediately. Gomez says the trial court’s

actions violated section 1138 as well as the right to due process,

the right to a fair trial, the right to present a defense, the right

to counsel, the right to a jury trial, the right to confront

witnesses against him, and the right to a reliable and

unanimous verdict in a capital case.

We begin by noting that because Gomez did not object to

the trial court’s admonitions or request a clarifying instruction

at trial, his claims are forfeited on appeal. (People v. Livingston

(2012) 53 Cal.4th 1145, 1168–1169.) In any case, the trial

court’s various statements about the importance of taking notes

and about the read-back of testimony did not amount to error.

Although section 1137 approves of the practice of juror

notetaking, we have cautioned that notetaking implicates

certain risks, namely, that “ ‘more significance will be placed by

the jurors on their notes . . . than on their own independent

recollection. The notes may accentuate irrelevancies and ignore

more substantial issues and evidence. . . . [T]he juror with the

best notes will unduly influence and possibly mislead the other

jurors.’ [Citation.] Furthermore, note-taking may ‘distract the

jurors’ attention from the proceedings. . . . While taking notes,

the jurors may also not pay sufficient attention to the behavior

of witnesses and may thus be unable to properly assess their

credibility.’ ” (People v. Whitt (1984) 36 Cal.3d 724, 746, quoting

People v. DiLuca (1982) 85 App.Div.2d 439, 444–445 [448

N.Y.S.2d 730, 734].) In Whitt, we acknowledged that other

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jurisdictions “found error in [a court’s] failure to give [a]

cautionary instruction” regarding the risks of note taking, but

we merely opined that giving such an instruction is “the better

practice.” (Whitt, at p. 747.)

We have since held that the trial court is not required to

give such an instruction. (People v. Marquez (1992) 1 Cal.4th

553, 578.) Here the trial court’s warnings, in context, could not

have been understood as an instruction that jurors should

prioritize notetaking at the expense of their duty to make

credibility determinations. To the contrary, the trial court

emphasized that the purpose of notetaking was to “refresh your

own recollections of what goes on during the trial” and to help

the jury “keep all of this organized in your minds.” It also

“caution[ed]” that jurors should “not . . . take so many notes that

[they]’re not watching and listening as the evidence is being

presented,” that they “should watch the witness while they’re

testifying as well,” and that they should not “have [their] head[s]

buried in [their] notes all the time.”

The court’s emphasis on notetaking did not direct the jury

to elevate notetaking over observing the witnesses and evidence,

but rather served to caution the jury that notetaking can

supplement credibility determinations and ensure that jury

deliberations would not be impeded by needless requests for the

read-back of testimony. Nor do we read the court’s statements

as discouraging the read-back of testimony; there was no risk

that the jurors were unaware that they could request the read-

back of testimony if they decided that they needed it. The trial

court did not err.

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G. Alleged Instructional Errors

1. Instructions on Deciding Degree of Murder

The trial court instructed the jury that if it found Gomez

guilty of murder, it had to determine whether the murder was

of the first or second degree. The trial court then instructed the

jury with the 1996 version of CALJIC No. 8.71 as follows: “If

you are convinced beyond a reasonable doubt and unanimously

agree that the crime of murder has been committed by a

defendant, but you unanimously agree that you have a

reasonable doubt whether the murder was of the first or of the

second degree, you must give the defendant the benefit of that

doubt and return a verdict fixing the murder as of the second

degree.”

Gomez claims that the trial court unconstitutionally

skewed the jurors’ deliberations toward first degree murder by

giving this instruction because it presents first degree murder

as “the default verdict . . . unless the jurors unanimously agree[]

that they ha[ve] a reasonable doubt about the degree of murder.”

He argues that this error was compounded by the trial court’s

failure to give CALJIC No. 17.11, which instructs the jury that

if you “have a reasonable doubt as to whether [the crime] is of

the first or second degree, you must find [the defendant] guilty

of that crime in the second degree.”

In People v. Moore (2011) 51 Cal.4th 386, we said “the

better practice is not to use the 1996 revised version[] of CALJIC

[No.] 8.71 . . . , as the instruction[] carr[ies] at least some

potential for confusing jurors about the role of their individual

judgments in deciding between first and second degree murder.”

(Id. at p. 411.) But “[w]e did not hold in Moore that the 1996

revised version[] of CALJIC [No.] 8.71 . . . [was] erroneous.”

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(People v. Salazar (2016) 63 Cal.4th 214, 246 (Salazar).) Rather,

we declined to address the merits of defendant’s claim because

we concluded any error was harmless beyond a reasonable

doubt. (Moore, at p. 412.)

More recently, we rejected a defendant’s challenge to the

use of the 1996 version of CALJIC No. 8.71, concluding that “[n]o

logical reading of the instructions leads to a compelled verdict of

first degree murder.” (Salazar, supra, 63 Cal.4th at p. 247.) We

noted that the jury was also given CALJIC No. 17.40, which

states that each juror has a duty to decide the case for herself,

and CALJIC No. 8.74, which provides: “ ‘Before you may return

a verdict in this case, you must agree unanimously not only as

to whether the defendant is guilty or not guilty, but also if you

should find him guilty of an unlawful killing, you must agree

unanimously as to whether he was guilty of murder of the first

degree, murder of the second degree, or voluntary

manslaughter.’ ” (Salazar, at p. 247.) Thus, even if the

language in CALJIC No. 8.71 was confusing standing alone, we

held that “the instructions were not erroneous in this case when

considered with the rest of the charge to the jury.” (Id. at

p. 248.)

For similar reasons, we conclude that no such

instructional error occurred here. As in Salazar, the trial court’s

other instructions dispelled any potential confusion that may be

present in CALJIC No. 8.71. (See People v. Delgado (2017) 2

Cal.5th 544, 573–574 [“We have long held that ‘the correctness

of jury instructions is to be determined from the entire charge of

the court, not from a consideration of parts of an instruction or

from a particular instruction.’ ”].) In this case, the trial court

instructed the jury with CALJIC No. 17.40, which emphasizes

that individual jurors should not “decide any question i

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