The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
OSWALDO AMEZCUA and JOSEPH CONRAD FLORES,
Defendants and Appellants.
S133660
Los Angeles County Superior Court
KA050813
February 28, 2019
Justice Corrigan authored the opinion of the court, in which
Chief Justice Cantil-Sakauye, Justices Chin, Liu, Cuéllar,
Kruger, and O’Rourke* concurred.
*
Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
PEOPLE v. AMEZCUA and FLORES
S133660
Opinion of the Court by Corrigan, J.
A jury convicted codefendants Oswaldo Amezcua and
Joseph Conrad Flores of the first degree murders of George
Flores, John Diaz, Arturo Madrigal, and Luis Reyes and found
true multiple-murder and drive-by-murder special
circumstance allegations.1 The jury also convicted defendants
of multiple counts of attempted willful, deliberate,
premeditated murder, some of them relating to peace officers;2
multiple counts of false imprisonment3 in a hostage-taking
incident; custodial possession of a weapon;4 and various other
offenses and enhancement allegations, including that many of
the offenses were committed for the benefit of a criminal street
gang.5 The jury returned death verdicts for both defendants.
1
Penal Code sections 187, 190.2, subdivision (a)(3), (21).
Further undesignated statutory references are to the Penal
Code.
2
Sections 664, 187.
3
Section 210.5.
4
Section 4502, subdivision (a).
5
Section 186.22, subdivision (b)(1) provides an enhanced
sentence for certain offenses if they are committed “for the
benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
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Opinion of the Court by Corrigan, J.
The trial court sentenced each defendant to death for the
murder convictions and imposed determinate and
indeterminate sentences for the noncapital convictions. This
appeal is automatic. We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase
1. Prosecution
a. April 11, 2000: Murder of John Diaz
The city of Baldwin Park is the home of the Eastside Bolen
Parque (ESBP) gang. Defendants were members of ESBP.
Not long after midnight on April 11, 2000, Paul Gonzales was
riding a bicycle on Merced Street in Baldwin Park. His half-
brother, John Diaz, rode on the handlebars. Diaz was a
member of the Monrovia gang and had a “Monrovia” tattoo
above his right knee. Gonzales was not a gang member. They
passed a black sport utility vehicle (SUV) sitting at a red light.
The SUV made a U-turn and came back toward the brothers on
the opposite side of the street, then made another U-turn and
pulled alongside them. Two people were in the car. As the
SUV pulled past them, the passenger shouted, “Where you
from?” Gonzales saw gunfire coming from inside the vehicle,
jumped off the bicycle and crouched behind a parked car. The
SUV sped away. Diaz approached Gonzales, told him to call an
ambulance, and fell to the ground. He died at the hospital.
The jury found defendants not guilty of several other
charges and was unable to reach verdicts on yet other charges,
as to each of which the court declared a mistrial.
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Opinion of the Court by Corrigan, J.
Sheriff’s Sergeant Kenneth Clark processed the scene. He
found five expended nine-millimeter shell casings, and a bullet
hole in a residence on Merced Street. Gonzales described the
shooter as being between ages 18 and 22, short-haired or bald-
headed with a light complexion.
Doctor Vladimir Levicky, M.D., performed the Diaz
autopsy. Diaz suffered a fatal gunshot wound to his left side,
which perforated his liver and inferior vena cava. A second
fatal wound to the back perforated his liver, stomach, and
aorta. A third wound to the buttocks perforated his bladder.
The bullet from Diaz’s back was retrieved and booked into
evidence.
In a recorded conversation with the trial prosecutor on
February 21, 2002, defendants admitted they did the shooting.6
Flores described how Diaz had been on the handlebars of a
bicycle that his “friend or his brother” had been riding and
noted that five nine-millimeter shell casings should have been
found at the scene. In another recorded conversation with the
prosecutor on March 28, 2002, defendants again admitted
shooting Diaz. Flores said he did not kill the victim’s brother
because he was not a gang member.
After these interviews Gonzales identified a photo of
Flores as the shooter. He did the same at trial.
Baldwin Park Police Sergeant David Reynoso, testifying as
a gang expert, opined the shooting was committed for the
6
Defendants spoke to the prosecutor on February 8 and 21
and March 28, 2002, when they were representing themselves.
The circumstances of those conversations are set out in greater
detail at pages 35–41, post.
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
benefit of ESBP. Based on defendants’ recorded conversations
with the prosecutor, Reynoso believed defendants shot Diaz
because he was a rival gang member in territory claimed by
ESBP, and the shooting was intended to promote ESBP’s
reputation.
b. May 25, 2000: Murder of Arturo Madrigal and
Attempted Murder of Fernando Gutierrez
On May 25, 2000, Arturo Madrigal was parking his
Chevrolet Blazer near the corner of Rexwood Avenue and
Maine Avenue in Baldwin Park. Madrigal’s friend Fernando
Gutierrez, who lived nearby, sat in the passenger seat. A car
stopped next to the Blazer and someone inside said, “Where
you from?” Gutierrez replied loudly, “We’re not from nowhere.”
Someone in the other car started shooting and Gutierrez
ducked under the dashboard. When the shooting stopped, he
heard blood dripping from Madrigal. Gutierrez got out of the
car and ran for help.
Gutierrez told police there had been four Hispanic men in
the car. All were between 20 and 25 years old, with shaved
heads. He testified neither he nor Madrigal belonged to a
gang. He saw the assailants only briefly and was unable to
identify anyone at trial.
Police Detective Mike Hemenway responded to the scene
to find the Blazer parked near the corner of Maine and
Rexwood Avenues with its engine running. Madrigal was dead
behind the wheel; blood flowed from his ears and head. Lisa
Scheinin, M.D., testified in lieu of the pathologist who
performed the autopsy. She reported his conclusions that
Madrigal died from a gunshot wound to the head that severed
his brain stem. Several bullets were recovered and given to
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Opinion of the Court by Corrigan, J.
investigators. Madrigal also suffered a grazing wound to one
knee.
A sheriff’s deputy recovered four expended nine-millimeter
cartridge casings and one expended bullet near the Blazer
along with one expended bullet from inside the driver’s door.
All had been fired from outside the vehicle and from the same
gun. All four bullets from the Madrigal autopsy showed six
lands and grooves with a right twist, consistent with having
been fired from a nine-millimeter Smith and Wesson
semiautomatic pistol.
Prosecution gang expert Reynoso testified that the
Madrigal shooting was committed for the benefit of ESBP. He
noted that Madrigal’s head was shaved, creating a perception
he was a rival gang member present in ESBP territory in an
act of disrespect. The shooting added to the gang’s notoriety.
In a recorded conversation on March 28, 2002, defendants
provided trial prosecutor Levine and Detective Kerfoot with
details of the shooting. Defendants were “driving around [the]
neighborhood looking for people to kill.” They saw “a gang
member [that was] in the wrong area,” driving an “older model
Blazer.” Amezcua was driving. Flores, using a nine-millimeter
pistol, fired “two to three shots” that hit the victim in the face
and neck. The passenger fled. Asked why they went out and
started shooting people, defendants explained it was their
“job.” Flores said, “[W]e were trying to better the gang and
[instill] fear to the rest of the gangs.” He explained that the
victim should not have been driving in “our hood”; he could
have driven “the long way,” but they had caught him taking
“the short way,” and Flores “domed him.”
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c. June 19, 2000: Murder of George Flores and
Attempted Murders of Joe Mayorquin, Robert
Perez, Jr., and Art Martinez
Katrina Barber7 knew both Amezcua and Flores. About
11:30 p.m. on June 18, 2000, she was parked in front of her
mother’s house in a stolen Toyota Corolla. Defendants asked
her for a ride. She drove around Baldwin Park and Alhambra
until the Corolla broke down. Barber then stole a Toyota
Cressida and drove to the home of Flores’s mother in Hemet.
They arrived about 3:00 a.m. and stayed the night. When they
left the next morning, defendants carried two black duffle
bags. One bag held Flores’s clothes. There were about 10
firearms in the other duffle.
Barber drove defendants to the La Puente home of ESBP
member Luis Reyes. The four watched television and used
crystal methamphetamine, then left the house in two vehicles.
Barber took Flores in the Cressida; Reyes drove Amezcua in
his Monte Carlo. Parked near each other in a hotel lot, Barber
saw Reyes talking with and giving something to a person in
another car.
Barber then got on the freeway to go to her mother’s house
in La Puente. In Baldwin Park, Barber drove past some men
sitting on a wall in front of a house on Ledford Street. At
Flores’s direction, Barber turned back toward the men and
stopped. The Monte Carlo with Reyes and Amezcua drove up
and also stopped in front of the Ledford Street house. Flores
7
At the time she testified, Barber was in state prison. She
had pled guilty to shooting at an inhabited dwelling during
this incident.
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said to the men, “Well, well, well, what do we have here?” One
of the seated men started to run. Standing outside the Monte
Carlo, Amezcua fired a pistol at them. Flores, still inside
Barber’s stolen car and armed with an AK-47, also shot at the
group. Then he handed Barber a .22-caliber semiautomatic,
telling her to shoot. Barber fired three or four times toward
the men without trying to hit them. One victim was shot as he
tried to get in the house. When the shooting stopped, Barber
drove away.
Robert Perez testified that on the morning of June 19,
2000, he was standing beside the wall in front of his Ledford
Street home, chatting with his friends Art Martinez, Joe
Mayorquin, and George Flores. Perez was not a gang member,
but two of his friends were inactive members of the 22nd
Street gang. All were unarmed. A Chevrolet Monte Carlo
drove by, catching his attention because the men inside were
staring at them. Perez’s brother-in-law had been murdered in
front of the house three years earlier, so he was constantly
vigilant. The car turned around and approached. Perez told
his friends to go to the back of the house, but Flores and
Mayorquin stayed to see what would happen. The Monte Carlo
and a woman driving a Toyota pulled up. Flores was seated in
the Toyota and said, “Well, well, what do we have here?”
Amezcua got out of the Monte Carlo holding a black pistol, said
something, and fired the first shot. Perez jumped for cover and
crawled toward the side of his house. He heard a metallic
sound and the firing of a second gun from around the Toyota.
When the shooting stopped Perez was uninjured, but George
Flores lay dead from a neck wound and Joe Mayorquin had
been shot in the leg. Perez later found bullet holes in his house
and garage.
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Sergeant Reynoso testified that, in his opinion, the
Ledford Street shootings were committed for ESBP’s benefit.
The location of the offense was one claimed by ESBP. Victim
George Flores belonged to a different gang but openly
displayed his tattoos in ESBP territory. Killing him promoted
ESBP’s notorious reputation.
d. June 19, 2000: Murder of Luis Reyes
After the Ledford Street shooting, Flores told Barber she
could not go to her mother’s house. As they drove toward San
Bernardino the car began to shake. Barber got off the freeway
and stopped, followed by Reyes and Amezcua in the Monte
Carlo. Gathering her things, she heard gunfire and saw
Amezcua shoot Reyes. Flores asked Amezcua, “What are you
doing that here for?” Then he and Amezcua began to pull
Reyes, bleeding and choking, from the car. Barber started to
drive the Monte Carlo away, but Reyes’s right leg was still
inside. Flores told her to “[j]ust run him over,” but she moved
him from the car before driving off. They got back on the
freeway and eventually stopped at the home of Amezcua’s
cousin in Pasadena. They took showers and ate. A few hours
later, they went to the house in Hemet, bringing the black bag
of guns inside. Flores’s mother told him that if he didn’t get
rid of the guns she would sell them. He replied that if she did,
he would have to kill her. The group stayed there three or four
days. At one point, Barber asked Flores if he was going to kill
her. He replied, “If I wanted to kill you, I would take you out
back and shoot you. Throw you in the trunk and take you in
the hills and nobody would ever know.” Barber observed that
his mother would know; he responded, “My mom wouldn’t care
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because she knew I had to do that to one of my friends,”
referring to his “homeboy Vago.”8
On June 19, 2000, Andrew Quiroz saw a man lying beside
the road and rushed to his side. The man had been shot but
was still breathing. Quiroz called for help, which arrived
within 10 minutes.
Sergeant Dean Brown responded to find Reyes lying in a
pool of blood. A stolen Toyota Cressida parked nearby
contained five shell casings. A bullet fell from the victim’s
clothing when he was lifted. Brown also found a spent bullet
and shell casing in nearby weeds. An autopsy identified 19
gunshot wounds, shot from a distance of about two feet.
Bullets recovered from the body came from a Ruger pistol
linked to Amezcua.
8
The court admonished the jury to consider Flores’s
comments only against himself. Other evidence showed that
ESBP member Paul Ponce was nicknamed Vago. Defendants
were charged with Ponce’s murder and related allegations, but
because they were acquitted of those charges, we briefly
summarize the evidence. On June 7, 2000, Katherine Schafer
and Paul Ponce were in his garage when they heard knocking
at the front door. A closed-circuit video monitor showed a car
parked in front of the house. Ponce left the garage to answer
the door. After about 10 seconds Schafer heard numerous
gunshots in quick succession. Several minutes later she found
Ponce’s body in the living room. Ponce, who had “Bolen”
tattooed on his back, had been shot many times by .22-caliber
and nine-millimeter weapons. The parties stipulated that on
the day of the homicide, Schafer told a deputy sheriff that she
had heard a vehicle drive up and seen a male subject come up
to the front door. Ponce went to the door. As soon as he
opened it Schafer heard gunshots.
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Reyes’s wallet contained a payment receipt for the Monte
Carlo. Ontario police posted a bulletin that the car was
wanted in connection with a homicide and its occupants were
considered armed and dangerous.
Detective Reynoso testified that Reyes was considered to
be a “rat” because he had cooperated with the police. He
opined that Reyes was killed because his conduct was
disrespectful to ESBP and his killing promoted ESBP’s
reputation.
e. June 24 and 25, 2000: Attempted Murder of
Peace Officer Andrew Putney and Arson of
Reyes’s Monte Carlo
During the evening of June 24, 2000, Amezcua, Flores and
Flores’s girlfriend, Carina Renteria, went to a 7-Eleven store.
Renteria drove Flores in her Honda Civic. Amezcua drove the
Monte Carlo. Amezcua sped out of the parking lot and was
followed by San Bernardino County Sheriff’s deputy Andrew
Putney. Renteria and Flores followed in the Civic.
The Monte Carlo’s license plate showed it was stolen.
Amezcua entered the 10 Freeway. He cut in and out of lanes
at speeds between 70 and 85 miles per hour. After about two
miles he made a hard right turn in front of Putney’s vehicle,
missed the offramp, and became airborne. He landed back on
the ramp and sped off. Putney followed, heard gunfire from
behind him, and a round blew out his front tire. Putney saw a
dark compact car with tinted windows, going about 90 miles
per hour. A Hispanic male was sitting in the passenger door
window firing at Putney.
Renteria testified that after they had gotten onto the
freeway, Flores told her to catch the patrol car. As she drew
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closer, Flores rolled down the window, leaned out and began
shooting. She had not known he was going to do that. Flores
told her to keep driving and get off the freeway. She drove to
his mother’s house in Hemet. Shortly thereafter, Amezcua
arrived in the Monte Carlo. He and Flores decided to burn the
car. Renteria and Flores’s mother secured a plastic gas
container. Amezcua and Flores drove the Monte Carlo to an
isolated area, and the two women followed in the Honda. After
igniting the car, the men ran back to the Honda, and all four
left together. Renteria stayed in Hemet overnight, then
returned to her sister’s house.
About 3:00 a.m. on June 25, 2000, firefighters found the
Monte Carlo on fire in San Jacinto, a city adjacent to Hemet.
Local police checked the license plate and contacted Ontario
officers. Inside the car, police found bullets, casings and shells.
Sheriff’s deputies interviewed Renteria, who thereafter
pleaded guilty to being an accessory to arson. She testified at
defendants’ trial and received no consideration for doing so.
In a recorded conversation on February 21, 2002,
prosecutor Levine told defendants, “You guys are—you’re a
good shot.” Flores said, “Yeah, it’s hard to shoot when you’re in
a vehicle and both vehicles are moving and one’s turning.”
Levine said, “You hit that car a lot of times,” and Flores
replied, “Yeah. Oh, and . . . I should’ve had the other gun.”
In a recorded conversation on March 28, 2002, Flores said
they “do quite a bit of traveling, okay.” Amezcua added, “With
our duffle bags.” Flores said, “Black . . . duffle bags.” Later,
Detective Kerfoot asked, “What’d you guys do with your duffle
bags?” Flores said they couldn’t tell him because “[i]f we ever
get out, will we be able to go get ’em and we’ll be able to finish
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our mission? ’Cause our mission was not completed.” Kerfoot
asked, “What was your mission?” Amezcua replied, “To kill as
much people as I could. [¶] Cops included.”
f. July 4, 2000: Attempted Murders of Peace
Officers; Assault with a Semiautomatic
Firearm; Assault with a Firearm; False
Imprisonments on Santa Monica Pier
Close to midnight on the night of July 3–4, 2000, Police
Officer Robert Martinez received a radio call reporting that a
triple homicide suspect had made a call from a public
telephone on the Santa Monica pier. Martinez went to the pay-
phone, verified the number, and waited for additional units.
Martinez and six assisting officers walked toward the end of
the pier and saw defendants standing outside an arcade.
Flores matched the description of the suspect. Flores
approached the officers, while Amezcua went into the arcade.
Martinez began to pat down Flores, who tried to turn away.
Martinez grabbed him and both men fell to the ground. Flores
was subdued by a police dog. He had a semiautomatic AP9
handgun and a loaded semiautomatic pistol on his person.
Martinez told Sergeant Michael Braaten another suspect
had gone into the arcade. As arcade patrons began to leave,
officers took up various positions. Martinez yelled, “He’s to the
right,” and Amezcua grabbed a woman named Cathy Yang.
Using her as a shield, he fired at Braaten, who took cover
behind a pillar. Officer Cristina Coria shouted, “I[’ve] been
hit,” and Martinez carried her out of the line of fire. Officer
James Hirt was also shot in the leg. Hirt saw Amezcua with
his left arm around a woman’s neck and his right hand
pointing a gun. Officer Steven Wong was struck in the right
hip.
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Jing Huali was leaving the arcade when she heard
gunshots. She saw Amezcua holding someone and pointing a
gun at her. She was wounded in the left leg during the
gunfire.
Lorna Cass and Paul Hoffman were in the arcade with
their respective children. They heard the sound of gunshots
and took cover. Cass saw a man holding an Asian woman
hostage. The man said to move the arcade machines closer
together to form a barricade and told everyone still in the
arcade to come together so he could see them.
Bonnie Stone and Michael Lopez were also present. Stone
saw Amezcua with a gun in his hand holding an Asian woman
around her neck. Amezcua controlled about 15 hostages,
directing them where to sit. He told Lopez to reload bullets
from one magazine into another and gave him the empty
magazine as a “souvenir.” After a few hours, Amezcua began
letting hostages leave, singly and in pairs. He eventually
surrendered after about five hours.
g. Defendants’ Weapon Possession in Custody
On January 29, 2001, Sheriff’s Deputy Armando Meneses
found a homemade stabbing device, or shank, hidden under the
toilet rim in Amezcua’s cell.
On April 30, 2001, a deputy found two large pieces of
metal capable of being made into weapons hidden in the
corners of Flores’s bunk. Flores occupied the cell alone.
2. Defense
The parties stipulated that Andre Acevedo would have
testified that Carina Renteria told him she was driving a car
with three passengers when a police car drove in between
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them. The two men in the back seat told her to pull alongside
the officer. When she did so, “they” rolled down the window
and began shooting.
B. Penalty Phase
1. Prosecution
a. Amezcua’s Custodial Possession of a Weapon
On November 19, 2004, a sheriff’s deputy found a shank
hidden in Amezcua’s jail cell.
b. Flores’s Armed Robbery
On March 29, 1995, David Wachtel, Buddy Jacob, and a
woman named Karen were parked in Baldwin Park, talking.
Flores and another man approached and tapped on the
window. Flores asked if they had any money. Initially,
Wachtel refused to give him money or his wallet. Flores
showed him a gun and said, “Don’t make me make you.”
Flores took Wachtel’s pager and wallet, Jacob’s necklace, and
$20 from Karen’s purse. Flores left and police were
summoned. Wachtel identified Flores at a preliminary
hearing.
c. Flores’s Threat Against Jail Officer
On May 10, 2001, Sheriff’s Deputy Dustin Cikcel removed
contraband including excess sheets and food from Flores’s cell.
Flores was belligerent and later said, “You will see, Cikcel.
Maybe not today, but you will see when you are not expecting
it.” Cikcel took the comment as a threat.
d. Crimes Against Timothy Obregon and Alicia
Garcia
On June 13, 2000, Timothy Obregon was living in Baldwin
Park. He was not in a gang but was a friend of ESBP member
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Richard Robles. That evening, Robles called and asked
Obregon to give his “homeboys” a ride home. Robles brought
defendants to Obregon’s house, introduced them, and gave
Obregon $40. Flores put a large, dark duffle bag in the trunk.
Obregon’s girlfriend, Alicia Garcia, went along for the ride.
Garcia sat in the front passenger seat with Amezcua and
Flores in the rear.
Flores told Obregon to take the 10 Freeway east. No one
spoke, which made Obregon nervous. At one point, Garcia
complained it was taking a long time and asked how far they
were going. A minute or two later, Obregon heard gunfire.
Shots went through the windshield and Garcia “squirmed” in
her seat. Amezcua reloaded his gun and started to point it at
Garcia’s head. Flores told him not to do that. Garcia started
to cry and said, “He shot me, and I am dying.” Blood streamed
down from a hole in her chin. Obregon felt something at the
back of his neck and Flores said, “Better drive straight,
motherfucker, or I will shoot you with this nine.”
At Flores’s direction Obregon left the freeway at the next
exit. The road was lined with tall cornfields. Flores said he
would let them go in a place where Obregon could get help and
told him to stop in a residential neighborhood. Obregon and
Flores got out of the car. Flores demanded money, which
Obregon gave him. Obregon lifted Garcia from the car and put
her down on the sidewalk. Flores asked Obregon, “Do you
know me?” Obregon answered in the negative, saying he
would “tell them that we got carjacked” and he “[wouldn’t] say
anything.” Defendants left in the car and Obregon went to a
nearby house to seek help. Getting no response, he ran to a
Circle K store a half block away. Police and paramedics soon
arrived and treated Garcia, who had bullet holes in her breasts
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and chin. Garcia survived, but the incident changed her
personality. She became frightened of “everybody and
everything.”
e. Victim Impact Evidence
Maria de Los Angeles Calvo, the mother of victim George
Flores, testified he was the youngest of her four children. He
was happy and friendly, much loved by family and friends, and
enjoyed baseball and family gatherings. He wanted to study
electronics. Attending George’s funeral was the saddest, most
difficult thing she ever had to do. Many things continued to
remind her of him. George’s own son repeatedly asked her why
his father was gone. Michelle Gerena, a close friend, described
learning of George’s death. She testified that George “was the
kind of person you could call at [two] o’clock in the morning. If
you needed him, he’d get out of bed for you” and “do whatever”
was needed. He loved his son and wanted everyone to be
happy. His friends continually remember and think about
him.
Vivian Gonzales described her son, John Diaz, as a loving
and caring man. He had a daughter and was planning to
marry. She heard the gunshots that killed her son, and his
cousin came to tell her John had been shot. She saw her son
lying on the grass, dying. She wanted to go to him and hold
him but could not bear to watch him die. Attending his funeral
was heartbreaking. Because visiting his grave is too sad, she
made a garden and finds comfort there in her memories of him.
She no longer celebrates Christmas. She is always angry and
sometimes doesn’t even want to get out of bed.
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2. Defense
Neither defendant presented evidence at the penalty
phase.
II. DISCUSSION
A. Jury Selection Issues
1. Trial Court’s Refusal To Ask Prospective Jurors if
They Would Always Vote for Death if a Defendant
Were Convicted of Multiple Murders
Defendants contend the trial court deprived them of their
right to a fair trial and impartial jury by rejecting a joint
defense request that the juror questionnaire ask whether, if
jurors found a defendant guilty of five murders with special
circumstances, they would always vote for the death penalty.
The court expressed concern that the question as phrased
would cause prospective jurors to prejudge the evidence. It
suggested asking, “If you found a defendant guilty of five
murders, would you always vote for death and refuse to
consider mitigating circumstances (his background, etc.)?” The
prosecutor and counsel for Flores agreed to the modification.
Counsel for Amezcua did not object, and the question was
included.
Defendants acknowledge the trial court’s wide latitude in
conducting voir dire, including in the choice and format of
questions to be asked. (People v. Landry (2016) 2 Cal.5th 52,
83; Code Civ. Proc., § 223.) Preliminarily, they forfeited this
claim when neither objected to the court’s modification.
(People v. Thompson (2010) 49 Cal.4th 79, 97; People v.
Robinson (2005) 37 Cal.4th 592, 617.) Were the claim
preserved, it would lack merit.
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In Morgan v. Illinois (1992) 504 U.S. 719, the high court
recognized that “part of the guarantee of a defendant’s right to
an impartial jury is an adequate voir dire to identify
unqualified jurors.” (Id. at p. 729.) Prospective jurors are
unqualified if their views would prevent or substantially
impair their performance in accordance with the instructions
and oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424.)
Inadequate voir dire prevents the trial court from removing
prospective jurors who will not follow the court’s instructions.
(Rosales-Lopez v. United States (1981) 451 U.S. 182, 188.)
The original defense question sought to identify jurors who
would always vote to impose the death sentence if they
convicted defendants of five murders. Defendants cite People
v. Cash (2002) 28 Cal.4th 703, which held the trial court erred
in prohibiting voir dire about Cash’s prior murder, “a fact
likely to be of great significance to prospective jurors” and one
that “could cause some jurors invariably to vote for the death
penalty.” (Id. at p. 721.) Here, defendants reason, the trial
court’s reframing of the question to include reference to
mitigating evidence “blurred the call of the original question in
a way that suggested that only evidence of mitigating
circumstances would suffice to prevent a death verdict.”
The argument fails. The modification eliminated a
reference to special circumstances, which the court was
concerned prospective jurors would not understand. It asked
whether the juror would refuse to consider mitigating evidence.
Such an inquiry is generally relevant to uncovering
prejudgment of penalty in a case involving multiple murder.
The modified question did not ask how a panelist might react if
the defense presented no mitigating evidence. But the court
had no indication that the defense would ultimately make that
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Opinion of the Court by Corrigan, J.
choice, nor did counsel request the question be modified.
Further, defense counsel had the opportunity to orally question
prospective jurors. Defendants point to no instance in which
the court restricted such inquiry, undermining their ability to
discern whether a juror could or would not follow the law. The
voir dire process as a whole sufficed to identify unqualified
jurors. Defendants are correct in asserting broadly that the
absence of a mitigating factor may not be considered an
aggravating factor (People v. Siripongs (1988) 45 Cal.3d 548,
583) and that the aggravating evidence in a given case may
still fail to warrant the death penalty, even in the absence of
mitigation. (People v. Brasure (2008) 42 Cal.4th 1037, 1061–
1062.) They do not persuasively suggest how the modified
question might reasonably have been understood to imply the
contrary.
2. Excusal of Prospective Juror for Cause
Defendants contend that the trial court erroneously
excused a prospective juror who expressed reservations about
the death penalty but said she could vote for death if the
aggravating evidence were strong enough. The error, they
claim, violated their rights to a fair trial, an impartial jury,
and a reliable penalty determination under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal
Constitution.
a. Jury Selection Procedures
The questionnaire here included the following questions:
“Are you so strongly opposed to the death penalty that you
would always vote for life in prison without the possibility of
parole and never vote for death for a defendant convicted of
first degree murder and a special circumstance?”
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Opinion of the Court by Corrigan, J.
“Are you so strongly in favor of the death penalty you
would always vote for death and never vote for life in prison
without the possibility of parole for a defendant convicted of
first degree murder and a special circumstance?”
“Are you so strongly opposed to the death penalty that you
would always vote against death regardless of what evidence
of aggravation or mitigation is presented?”
“Are you so strongly in favor of the death penalty that you
would always vote for death regardless of what evidence of
aggravation or mitigation is presented?”
“In a penalty phase, would you want to hear evidence of
aggravation and mitigation?”
“In a penalty phase would you always vote for death,
regardless of the mitigating evidence?”
“In a penalty phase would you always vote for life,
regardless of the aggravating evidence?”
“Regardless of your views of the death penalty, would you
be able to vote for death for a defendant if you believed, after
hearing all the evidence, that the death penalty was
appropriate?”
“Will your feelings about the death penalty impair your
ability to be a fair and impartial juror in this case?”
Before voir dire examination, the court instructed, “Jurors
who would never impose death cannot sit in this case.
[¶] Jurors who would never impose life cannot sit on this
case.” The court elaborated: “Now, in my experience and that
of other judges . . . people kinda break [themselves] down into
four categories in a case like this. [¶] We have the category
number one people. These are folks that don’t believe in the
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
death penalty. And that’s fine. Many of you said you could
never impose death and I respect that decision. I am not here
to try to change your mind. [¶] . . . [¶] We have a category
two person. This is the person who’s strongly in favor of the
death penalty. He is [kind] of an eye for an eye guy who says if
this person, this defendant, committed murder with special
circumstances, he must die. [¶] I don’t care about his personal
history or background. I don’t care about the mitigating
evidence. Murder means he should be executed. That is a
category number two person. We have some of those in this
group. [¶] Then we have what I call the category three person.
And this is the person who says, You know, I believe in the
death penalty. I think it’s appropriate for society to have a
death penalty. But, you know, I know myself. And I don’t
think I could ever vote to put somebody to death.
[¶] . . . [¶] Nothing wrong with being a category three
person. . . . [¶] . . . The category four person is the person who
says, you know, I can go either way. I want to hear it all. . . .
Many of you said I want to hear everything that I am entitled
to hear before I have to make such a decision. But many of you
said I could make such a decision. And that’s all we’re after.
We want people that can make the decision.” The court asked
all prospective jurors to say which category they belonged in.
Prospective Juror No. 74 wrote in her questionnaire that
she had “no opinion one way or the other” about the death
penalty, but “I just don’t want to be the one to decide; I
wouldn’t choose to kill someone.” She had never held a
different opinion on the question. When asked in the
questionnaire “Are you so strongly opposed to the death
penalty that you would always vote for life in prison without
the possibility of parole and never vote for death for a
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
defendant convicted of first degree murder and a special
circumstance?” she answered, “Yes.” But in response to the
question “Are you so strongly opposed to the death penalty that
you would always vote against death regardless of what
evidence of aggravation or mitigation is presented?” she
answered, “Unsure.” When asked, “In a penalty phase would
you always vote for life, regardless of the aggravating
evidence?” she answered, “Probably.” But when asked,
“Regardless of your views on the death penalty, would you be
able to vote for death for a defendant if you believed, after
hearing all the evidence, that the death penalty was
appropriate?” she answered, “[I]f I thought it appropriate, yes.”
Asked whether her feelings about the death penalty would
impair her ability to be fair and impartial, she answered in the
negative. And when asked, “Would you like to serve on this
jury?” she answered in the negative, stating in part, “Don’t
want to decide if defendants should die if it comes to that.”
During questioning by the trial court, Prospective Juror
No. 74 initially categorized herself as “pretty much a three,”
but said, “It would have to be for me to put someone to death,
the aggravating evidence be a lot and there would be like no
mitigating evidence. So it’s a good chance that I am a three.”
The court asked, “Well, but are you saying that you could put
somebody to death?” Prospective Juror No. 74 replied, “It
would have to be really harsh circumstances.” The court said,
“That is all right. It’s up to the People to persuade you. [¶] I
am saying that number threes are people who say, Judge, I
know myself, I could never, regardless of what the evidence
was, put somebody to death. [¶] Are you that person?” Again,
she equivocated: “Well, I could be a four with three
tendencies.” The court replied, “Yes, and we’re not allowing
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
that this morning. No four with three tendencies. But I
understand what you are saying. [¶] So are you a three or a
four? [¶] You sound like you are a four?” She answered: “I
could be a four.”
During questioning by counsel for Flores, Prospective
Juror No. 74 acknowledged that in the penalty phase she
would lean toward life instead of death, “but if I thought the
aggravating was enough, then you know it would be hard, but I
could make the decision.” The prosecutor then vividly
described the reality of the penalty phase decision making
process: “Let’s stop. Think about it. It’s not movies anymore.
It is not T.V., not filling out questionnaires. It’s really can you
do it? To sit on this jury, you have to be able to do that if it’s
warranted. And this is very real stuff. . . .[¶] Is there anybody
that has listened to what I’ve said and starting to think, whoa,
wait a minute, in front of the defendants, I am going to have to
come back and return a verdict of death in front of them.
[¶] Maybe with their family sitting out in the audience, I have
to tell a mother that her son is going to be put to death?
[¶] . . . [¶] Has anybody had any kind of change of heart, any
change of feeling inside of them based on what I have said at
all?” Prospective Juror No. 74 raised her hand and said, “I
don’t think I could do it,” and confirmed it was her “final
determination.” The court excused her for cause over defense
objection.
b. Analysis
Both the federal and state constitutions guarantee
criminal defendants the right to trial before an impartial jury.
(Duncan v. Louisiana (1968) 391 U.S. 145, 149–150; Turner v.
Louisiana (1965) 379 U.S. 466, 471; U.S. Const., 6th & 14th
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
Amends.; Cal. Const., art. I, § 16.) Prospective jurors cannot be
excluded for cause simply because they voice general objections
to the death penalty or express conscientious or religious
scruples against its imposition. (Witherspoon v. Illinois (1968)
391 U.S. 510, 522.) Prospective jurors in a capital case may be
excluded for cause, however, if their views would prevent or
substantially impair the performance of their duties.
(Wainwright v. Witt, supra, 469 U.S. at p. 424.) “[I]n
determining whether the removal of a potential juror would
vindicate the State’s interest without violating the defendant’s
right, the trial court makes a judgment based in part on the
demeanor of the juror, a judgment owed deference by reviewing
courts.” (Uttecht v. Brown (2007) 551 U.S. 1, 9.) “When the
prospective juror’s answers on voir dire are conflicting or
equivocal, the trial court’s findings as to the prospective juror’s
state of mind are binding on appellate courts if supported by
substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1,
10.)
Defendants contend that Prospective Juror No. 74’s
questionnaire responses reflected a juror without a fixed
opinion regarding the death penalty, but one with concerns
about herself returning a verdict that would end someone’s life.
In urging error, they rely on statements she made during voir
dire characterizing herself, in the trial court’s taxonomy, as a
“category number four” juror, one who would “lean towards . . .
[life] instead of death,” but could vote for death, even though
“it would be hard,” if she “thought the aggravating was
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
enough.”9 They observe that it was only after the prosecutor
asked whether any juror had had a change of heart and could
not return a death verdict before defendants and their family
that Prospective Juror No. 74 said, “I don’t think I could do it.”
They maintain the question about defendants’ family overly
emotionalized the inquiry.
Prospective Juror No. 74 gave equivocal and conflicting
answers throughout the process. She obviously thought about
her own views and did her best to explain them. Her final
reply to the prosecutor’s question constituted substantial
evidence on which the trial court could base its excusal.
(People v. Fuiava (2012) 53 Cal.4th 622, 659–661.) There was
nothing improper in the prosecutor’s request that she assess
her own ability to return a death verdict in the concrete
situation in which she might find herself if she served. There
was no error.
B. Guilt Phase Issues
1. Courtroom Security
Defendants contend their rights to a fair trial,
presentation of a defense, and the presumption of innocence
were prejudiced by heightened courtroom security measures
not based on case-specific reasons. They claim the court
deferred to the sheriff regarding the level of security and failed
to state on the record why the need for the measures employed
9
While we do not endorse a taxonomy like the one
employed in this case, we recognize that it may be a helpful
starting point for determination of a prospective juror’s
qualification to serve, provided the court, as here, supplements
it with follow-up questions.
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Opinion of the Court by Corrigan, J.
outweighed potential prejudice to the defendants. We reject
the contention.
At the start of jury selection, there were eight uniformed
deputy sheriffs in the courtroom. Counsel for Amezcua
objected, saying, “I think that it’s onerous. I think that this is
a difficult enough case without having the impression that
would be left by having so many sheriff[’]s deputies sitting in
the courtroom throughout this trial, so I would object to the
number of sheriffs that are here. [¶] My understanding is that
neither of these gentlemen, Mr. Amezcua or Mr. Flores, have
acted up in court and that at this point, there is no reason for
that kind of a security detail to be present in front of the jury.”
Counsel for Flores joined in the objection. The court replied, “I
normally leave security issues up to the bailiffs, to the experts.
I feel that in this case, given that there have been a number of
incidents at the jail, that there is understandably some concern
above that present in most cases. I will watch the issue. [¶] I
feel that I am going to allow the number of bailiffs to remain
for today. I feel that this is going to be very quick. The jurors
are going to be in and out in a matter of minutes.[10] I will give
some additional thought to the number of bailiffs that are
necessary, but given the fact that we have two defendants, we
have had a number of incidents at the jail, I think it’s
important for us to have what the security people call a show of
force. [¶] My thought is that once we get going with the trial,
and I do expect that there will be no problems. I think that
10
The day’s session included introductions, distribution of
questionnaires, preinstructions, and some hardship excusals,
but no voir dire.
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
Mr. Amezcua and Mr. Flores have conducted themselves in a
very appropriate manner at all times with this court, and I
think that once we get going, that the sheriff will see that
there is probably not the need to have such a number of
bailiffs, but your objection is noted for the record.”
Counsel for Amezcua noted that both defendants were
belted to their chairs with one hand cuffed to their belt, and
expressed doubt that either defendant could even stand up.
The court observed that the defense table had been draped to
prevent prospective jurors from seeing defendants’ cuffed
hands. Counsel for Flores objected, arguing that jurors would
be able to infer that defendants were shackled from the fact
only their left hands would be above the table. The court
overruled the objection, noting that precautions had to be
taken in this case. Shortly thereafter prospective jurors
entered the courtroom. The record does not reflect whether
these security arrangements were maintained during the rest
of the proceedings. The defense made no further objections on
this topic.
“We begin with the familiar principle that a ‘trial court has
broad power to maintain courtroom security and orderly
proceedings. [Citations.]’ [Citation.] For this reason, decisions
regarding security measures in the courtroom are generally
reviewed for abuse of discretion. [Citations.] [¶] However,
despite our traditional deference to the trial court in this area,
some extraordinary security practices carry an inordinate risk
of infringing upon a criminal defendant’s right to a fair trial.
These exceptional practices must be justified by a
particularized showing of manifest need sufficient to overcome
the substantial risk of prejudice they pose. For example,
visible physical restraints like handcuffs or leg irons may erode
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
the presumption of innocence because they suggest to the jury
that the defendant is a dangerous person who must be
separated from the rest of the community. [Citations.] . . . In
addition to their prejudicial effect on the jury, shackles may
distract or embarrass a defendant, potentially impairing his
ability to participate in his defense or serve as a competent
witness on his own behalf. [Citations.] . . . [¶] Because
physical restraints carry such risks, the United States
Supreme Court has long considered their use inherently
prejudicial. [Citations.] Thus, a criminal defendant may not
appear before the jury in shackles unless the trial court has
found that the restraints are justified by a state interest
specific to the particular trial. [Citation.] . . . [¶] . . . [¶] But
the stringent showing required for physical restraints like
shackles is the exception, not the rule. Security measures that
are not inherently prejudicial need not be justified by a
demonstration of extraordinary need. [Citations.] In contrast
to physical restraints placed on the defendant’s person, we
have upheld most other security practices when based on
proper exercises of discretion. . . . [Citations.] . . . [W]e have
consistently upheld the stationing of security or law
enforcement officers in the courtroom.” (People v. Stevens
(2009) 47 Cal.4th 625, 632–634.)
In Holbrook v. Flynn (1986) 475 U.S. 560, Justice Marshall
explained why different rules apply to physical restraints and
the deployment of security personnel. “The chief feature that
distinguishes the use of identifiable security officers from
courtroom practices we might find inherently prejudicial is the
wider range of inferences that a juror might reasonably draw
from the officers’ presence. While shackling and prison clothes
are unmistakable indications of the need to separate a
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
defendant from the community at large, the presence of guards
at a defendant’s trial need not be interpreted as a sign that he
is particularly dangerous or culpable. . . . Our society has
become inured to the presence of armed guards in most public
places; they are doubtless taken for granted so long as their
numbers or weaponry do not suggest particular official concern
or alarm.” (Id. at p. 569.)
Defendants contend the trial court abused its discretion by
deferring to the sheriff’s determination that eight uniformed
officers were needed to secure the courtroom in this trial
instead of justifying the practice by reference to case-specific
facts. The contention is not borne out by the record. In
overruling defendants’ objection to the presence of eight bailiffs
at the outset of the trial, the court alluded to the many
incidents in which Amezcua and Flores were involved in
violent or nonconforming conduct in jail. Both were
categorized as “K-10,” or “high security and/or administrative
segregated, noteworthy cases.” In an earlier hearing to
determine whether defendants would be allowed to possess
writing implements in their cells, evidence demonstrated the
following: (1) An October 2, 2000 search of Flores’s cell yielded
a five-foot long wooden broom handle, a large piece of jagged
mirror, two altered razors, and excessive linens, all
contraband. (2) On November 2, 2001, both defendants, along
with others, were being removed from their cells for visits.
Defendants managed to slip out of their handcuffs and waist
chains and stabbed inmate Steve Matson with a homemade
shank. (3) On September 2, 2001, Amezcua was outside his
cell cleaning up the tier entrance. He assaulted inmate Steve
Harvey by stabbing him through the bars of his cell. (4) On
May 10, 2001, Flores became belligerent and threatened
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
Deputy Cikcel with the words, “You’ll see — maybe not today,
but you’ll see it when you’re not expecting it.” (5) An April 30,
2001 search of Flores’s cell uncovered excessive linen and two
pieces of metal capable of being fashioned into shanks. The
metal pieces were 12 and eight inches long. (6) A January 29,
2001 search of Amezcua’s cell revealed a five-and-a-half-inch-
long shank with a cloth handle. (7) On January 5, 2001, Flores
initially refused to leave his cell. After he did so, deputies
found a tattoo kit, several pieces of carbon paper (commonly
used in tattooing), loose razor blades, and a pair of orange jail
pants that had been cut off into shorts. Subsequent searches of
defendants’ cells yielded pencils, which defendants were not
permitted to possess because of their potential use as stabbing
weapons. At another hearing on jail security matters, Deputy
John Kepley testified that on April 20, 2002, Amezcua’s cell
contained a pencil and a quantity of jail-made alcohol. Kepley
testified to six incidents between November 2001 and
September 2002 in which Flores was either insubordinate and
noncompliant with jail staff or was found to possess
contraband or weapons in his cell.
The trial court did not improperly substitute the bailiffs’
discretion for its own determination regarding the necessary
level of courtroom security. The court’s comments reflect its
permissible consideration of the bailiffs’ views, as well as its
own assessment that the case presented security concerns
above those present in most cases and its sense that a “show of
force” was appropriate. The court did not abdicate its
authority over courtroom security.
Defendants argue that because the enumerated incidents
occurred several years before the start of trial and none
reflected courtroom misbehavior, they fail to support the
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
court’s ruling. They point out that the judge described their
conduct during court proceedings as “very appropriate.” But it
is settled law that a defendant’s violent custodial behavior can
support a court’s exercise of discretion to order extra courtroom
security. (See, e.g., People v. Lomax (2010) 49 Cal.4th 530,
559–562; People v. Hawkins (1995) 10 Cal.4th 920, 944.)
Nothing in the record compels an inference that the conditions
initially giving rise to the need for extra security had abated by
the time of trial. (See People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 390–392.) Finally, during a hearing
after the court’s November 2, 2002 ruling, Amezcua said in
court that he wished he had a gun, simulated a gun with his
hand, pointed his finger at the prosecutor, and made a
“shooting noise.” Defendants characterize the incident as
“mere macho posturing,” but the trial court could properly
consider the conduct in a less benign light and take it into
account in approving these security arrangements.
The cited incidents of violent or nonconforming custodial
behavior are likewise a particularized showing of manifest
need for physical restraints. There was no abuse of discretion
in the trial court’s shackling order. (People v. Stevens, supra,
47 Cal.4th at p. 632; People v. Duran (1976) 16 Cal.3d 282, 293,
fn. 12.)
Even if defendants could establish an abuse of discretion,
the record fails to reflect any prejudice, defendants’ generic
assertions to the contrary notwithstanding. (See People v.
Hernandez (2011) 51 Cal.4th 733, 746; People v. Watson (1956)
46 Cal.2d 818, 837.) The assertions that the jury noticed
limitations on defendants’ freedom of movement or inferred the
court viewed defendants as a threat are mere speculation
unsupported by any affirmative indications in the record. (See
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Opinion of the Court by Corrigan, J.
People v. Ervine (2009) 47 Cal.4th 745, 773; People v. Cleveland
(2004) 32 Cal.4th 704, 740.) Nor do defendants point to
anything in the record affirmatively suggesting that the
restraints had any effect on their ability to conduct their
defense. “ ‘[W]e have consistently held that courtroom
shackling, even if error, [is] harmless if there is no evidence
that the jury saw the restraints, or that the shackles impaired
or prejudiced the defendant’s right to testify or participate in
his defense.’ ” (People v. Williams (2015) 61 Cal.4th 1244,
1259.) Moreover, the trial court expressed confidence that once
the trial was under way there would be no problems and the
need for such a number of deputies would abate. The record
does not reveal whether the court’s prediction was borne out,
but defendants did not renew their objection.
2. Admission of Autopsy Results
Defendants were convicted of the first degree murder of
Arturo Madrigal during a drive-by shooting for the benefit of a
criminal street gang. (§§ 187, subd. (a), 190.2, subd. (a)(21),
186.22, subd. (b)(1).) A deputy medical examiner other than
the one who performed the autopsy testified as to the results.
Defendants assert the testimony violated their right of
confrontation under the Sixth Amendment.
Madrigal was shot and killed on May 25, 2000. Two days
later, Dr. Carrillo performed an autopsy, and wrote a report
concluding that Madrigal died from a homicidal gunshot. Dr.
Carrillo was away from the office during trial because his wife
had just had a baby. In his stead the prosecutor called Dr.
Lisa Scheinin, a medical examiner in the same office.
Dr. Scheinin described Dr. Carrillo’s observations and
conclusions about wounds and the trajectory of the fatal bullet,
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
as recorded in his autopsy report. The report itself was not
admitted into evidence.
Defendants did not object to Dr. Scheinin’s testimony, thus
failing to preserve the claim in this post-Crawford case. (See
Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).)11
Defendants establish no ground for relief because admission of
the testimony, even if error, was harmless beyond a reasonable
doubt.
“The Sixth Amendment’s Confrontation Clause provides
that, ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’ ”
(Crawford, supra, 541 U.S. at p. 42.) Crawford held that the
clause bars introduction of “testimonial” hearsay against a
defendant unless the witness is unavailable and the defendant
had a prior opportunity for cross-examination. (Id. at p. 68;
see also id. at p. 42.) Subsequent decisions by the high court
and this court have sought to clarify what a “testimonial”
statement is in the context of written reports documenting
scientific testing. (See Melendez-Diaz v. Massachusetts (2009)
11
Defendants contend that the omission was ineffective
assistance of counsel. (See Strickland v. Washington (1984)
466 U.S. 668, 687 [ineffective assistance entails deficient
performance resulting in prejudice].) Not so. Defendants fail
to overcome the presumption that the lack of objection was
sound trial strategy. (Id. at p. 689.) The autopsy results were
unimportant given the other evidence that Madrigal died of a
gunshot wound to the head, and an objection would only have
called attention to this routine evidence with little prospect of
gain, as Dr. Carrillo could well have been made available to
testify. In any event, as discussed in the opinion text,
admission of the autopsy findings resulted in no prejudice.
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Opinion of the Court by Corrigan, J.
557 U.S. 305, 310–311; Bullcoming v. New Mexico (2011)
564 U.S. 647, 664–665; Williams v. Illinois (2012) 567 U.S. 50,
57–58; id. at pp. 103–104 (conc. opn. of Thomas, J.); People v.
Dungo (2012) 55 Cal.4th 608.) A comprehensive definition of
the term “testimonial” awaits articulation. (Dungo, at pp. 648–
649 (dis. opn. of Corrigan, J.).)
However, we need not address the question in depth
because any error here was harmless. (Chapman v. California
(1967) 386 U.S. 18, 24.) The cause of Madrigal’s death was
undisputed. Defendants acknowledged their responsibility in
pretrial statements. Flores admitted he “domed” Madrigal and
shot him in the face. A responding officer testified he saw
Madrigal inside the Blazer with blood coming from his ears
and head. Photographic evidence corroborated the testimony.
Extensive evidence demonstrated that Madrigal died as the
result of a gunshot wound to the head.12 Defendants contend
the improperly admitted autopsy results supplied necessary
corroboration, for purposes of the corpus delicti rule,13 of
12
The same reasoning obviates any need to discuss People
v. Sanchez (2016) 63 Cal.4th 665, 686, as it may apply here.
13
“In every criminal trial, the prosecution must prove the
corpus delicti, or the body of the crime itself — i.e., the fact of
injury, loss, or harm, and the existence of a criminal agency as
its cause. In California, it has traditionally been held, the
prosecution cannot satisfy this burden by relying exclusively
upon the extrajudicial statements, confessions, or admissions
of the defendant.” (People v. Alvarez (2002) 27 Cal.4th 1161,
1168–1169 [holding that the truth in evidence provision of
Proposition 8 did not eliminate the independent-proof rule
insofar as it prohibits conviction absent evidence of the crime
independent of the defendant’s out-of-court statements].)
“ ‘The independent proof may be by circumstantial evidence
34
PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
Flores’s confession that he “domed” Madrigal. The contention
lacks merit. The responding officer’s testimony and the
photographic evidence provided ample corroboration.
3. Admission of Statements Made to Deputy District
Attorney Levine
On January 7, 2002, the trial court granted defendants’
requests to represent themselves. (See Faretta v. California
(1975) 422 U.S. 806.) They continued to represent themselves
until May 6, 2002, when the court allowed them to revoke their
Faretta requests. Both were represented by counsel for the
remainder of the proceedings. In February 2002, trial
prosecutor Darren Levine met with defendants, at their
request, to provide discovery. In an unrecorded conversation,
defendants made spontaneous statements about the charged
crimes and other offenses. Levine and a law enforcement
officer met with them again on February 21, 2002. A third
meeting took place on March 28, 2002, with investigator
Thomas Kerfoot in attendance. Levine surreptitiously
recorded the February 21 and March 28 conversations. In the
interval between the two conversations, a preliminary hearing
was held in connection with the Santa Monica pier charges.
Following an expanded investigation, Levine convened a grand
jury. It indicted defendants for the murders of John Diaz and
Arturo Madrigal and the attempted murders of Paul Gonzales
[citation], and it need not be beyond a reasonable doubt. A
slight or prima facie showing, permitting the reasonable
inference that a crime was committed, is sufficient.
[Citations.]’ [Citation.] It is not necessary for the independent
evidence to establish that the defendant was the perpetrator.”
(People v. Wright (1990) 52 Cal.3d 367, 404.)
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Opinion of the Court by Corrigan, J.
and Fernando Gutierrez, with numerous weapons, gang, and
special circumstance allegations. The indictments were later
folded into the amended information on which the case went to
trial. The trial court denied defense motions to exclude
redacted recordings of the statements. Defendants were
convicted of the offenses against Diaz, Madrigal, and
Gutierrez.
Defendants contend that the statements should have been
excluded under Penal Code section 1192.4 and Evidence Code
section 1153 because they were part of settlement negotiations.
Their suppression motion below did not assert this ground.
Instead the defense relied on three other grounds not renewed
here. Their appellate claim is thus forfeited. (Evid. Code,
§ 353, subd. (a).) It also lacks merit.14
Evidence Code section 1153 provides that “[e]vidence of a
plea of guilty, later withdrawn, or of an offer to plead guilty to
the crime charged or to any other crime, made by the
defendant in a criminal action is inadmissible in any action or
14
Defendants contend that because they were
“unrepresented” during the conversations, prosecutor Levine
should be held to a “higher standard,” and should have advised
defendants of the exclusionary rule regarding statements made
in the context of settlement negotiations. Under this “higher
standard” defendants should not be held to have forfeited
review. Setting aside the questionable assumption that a
prosecutor has an obligation to provide legal advice to
defendants who have exercised their Faretta rights, the
contention is unavailing; defendants had given up their pro per
status more than a year before their appointed counsel moved
to suppress the February 21 and March 28 statements. We
review the claim based on the actions and decisions by counsel
in pursuing their objections.
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Opinion of the Court by Corrigan, J.
in any proceeding of any nature, including proceedings before
agencies, commissions, boards, and tribunals.” Penal Code
section 1192.4 provides that “[i]f the defendant’s plea of guilty
pursuant to Section 1192.1 [plea of guilty specifying degree of
crime] or 1192.2 [plea before committing magistrate] is not
accepted by the prosecuting attorney and approved by the
court, the plea shall be deemed withdrawn and the defendant
may then enter such plea or pleas as would otherwise have
been available. The plea so withdrawn may not be received in
evidence in any criminal, civil, or special action or proceeding
of any nature, including proceedings before agencies,
commissions, boards, and tribunals.” In the enactment of
these sections the Legislature extended the earlier rule from
civil cases to prohibit evidence of offers to compromise. (People
v. Wilson (1963) 60 Cal.2d 139, 156; see former Code Civ. Proc.,
§ 2078.) At least one case has extended the exclusionary rule
to admissions made in the course of plea negotiations. (People
v. Tanner (1975) 45 Cal.App.3d 345, 349–351.)
We assume without deciding that the rule extends to mere
admissions made during plea negotiations, as opposed to
withdrawn pleas or offers to plead. Even so, defendants’
statements do not fall under section 1192.4 because they were
not made in the course of any plea negotiations. Settlement of
the case was never on the table. Defendants were seeking to
take credit for several uncharged murders and other crimes
they had committed so that they could be tried, convicted, and
sent to death row. They asked only that the prosecutor exert
efforts to see they received the minimum restitution fine. They
did not condition their admissions on any such agreement.
It is true, as defendants observe, that the subject of a non-
life sentence arose during the February 21 conversation. After
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Opinion of the Court by Corrigan, J.
discussing discovery and the upcoming preliminary
examination, Flores alluded to an offense (the Diaz killing)
that law enforcement evidently had not yet tied to defendants.
Prosecutor Levine asked defendants, “Why do you want me to
make all these murders on you? I don’t get it.” Flores replied,
“Because I enjoy staying here . . . .” Levine went on jocularly:
“You don’t have a thing for me or anything?” Flores responded,
“Nah, nah, we just — we think you’re cool, you know. And
then after the trial we’ll give you another one.” Levine asked,
“You can give me another murder that you did?” Flores
replied, “Another one.” Levine asked why. Flores answered,
“Why not?” Evidently testing their sincerity, Levine reminded
defendants of an earlier conversation: “When you came to me
— remember last time you said to me ‘give me — give me the
50 years.’ [¶] . . . [¶] And without the ‘L [a life sentence].’
[¶] . . . [¶] I don’t think you want the death penalty. You said
that.” Flores answered, “I’m gonna help. If you give me 50
years without the ‘L,’ I can get married and get a bone yard
visit. [¶] . . . [¶] But if you give me the ‘L,’ I have no sex.”
Levine said he understood the point, but firmly rejected any
suggestion he might be open to seeking a noncapital sentence:
“[N]othing personal . . . but . . . if there’s a death penalty, this
is the case that — that warrants it.”
After Levine’s assurance that he would pursue a death
sentence, defendants continued to make statements. They
shifted to diverse topics, mentioning their other criminal
activities and philosophy, and a recipe for pruno [jail-made
alcohol]. Eventually, Amezcua said, “Okay if we talk about
these murders, right, that we did,” and “Can we talk about
restitution?” Flores said, “See, that’s what we wanna do.
Okay, we’re gonna get a lot of restitution. We’ll give you a
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
murder if [you] drop our restitution, so it’ll only be 200 instead
of a whole (unintelligible) of restitution, which we’ll never be
able to pay.” Defendants explained to Levine that death row
inmates have restitution deducted from their books [money
that can be spent in prison]. Flores commented, “Our thing is
this, see, if we buy a TV, we’re gonna have to pay restitution.”
He elaborated: “So, now I’m going to death row, something
different, something new, right? And I don’t wanna have a lot
of restitution because when I buy a TV, they’re gonna make me
pay to the victims in (unintelligible) or right up front.”
After further discussion of defendants’ criminal activities,
Flores again urged a $200 restitution fine. He said they had
now admitted three murders and could reveal two more.
Levine asked, “[W]hy are you giving it to me?
[¶] . . . [¶] And . . . that doesn’t bother you that I’m gonna use
that against you[?]” Amezcua replied, “We know that already.”
Flores said, “We don’t care. The whole thing is, we want death,
right?”
During the March 28 conversation, Levine observed that
“a number of times in court you guys have said that you
wanted us to come talk to you about some cases and maybe
work out something, either with regard to, uh, restitution issue
. . . .” Amezcua and Flores agreed. Both defendants confirmed
they understood that “all this stuff” discussed during their
conversations could be used against them; that they could have
an appointed lawyer present; and that they did not have to
speak with Levine. They agreed that Levine and Kerfoot were
present at their request and that they wanted to speak with
them. Flores’s only expressed concerns were that the record be
clear that each defendant incriminated himself alone and that
the prosecution would not “go after” Barber or Flores’s mother.
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Opinion of the Court by Corrigan, J.
The conversation turned to a crime committed in Redlands,
and Flores raised the possibility that defendants would admit
to two more murders. Amezcua asked, “So how much of a
guarantee can we have on the restitution though?” Levine told
defendants the decision would be up to the judge, but he would
use his best efforts to persuade the judge to order $200 in
restitution fines. Defendants raised the fate of Katrina
Barber. Levine said he would push for a state prison sentence
that would allow her to be released immediately based on time
already served. Defendants then described the Diaz and
Madrigal murders as well as their attempts to kill Gutierrez
and Gonzales.
The February 21 and March 28 conversations never
involved a potential plea to any of the offenses or allegations
ultimately charged in this case. Defendants’ argument to the
contrary relies on the reference to their earlier exploration of a
50-year non-life sentence. Levine promptly rejected that
option and defendants never again alluded to it. Nonetheless
they continued to disclose information about other offenses.
Defendants contend that because they were seeking resolution
of “aspects” of the case, specifically restitution, this court
should read Evidence Code section 1153 and section 1192.4
broadly and accord them the benefit of the exclusionary rule.
We decline the invitation. Defendants would not plead to a
death sentence and the prosecutor would offer nothing less.
The public policy embodied in section 1192.4 and Evidence
Code section 1153, which favors “the settlement of criminal
cases without the necessity of a trial” (People v. Wilson, supra,
60 Cal.2d at p. 156), would not have been furthered by
exclusion of statements made here. Their admission was not
improper. At no point in any of the conversations did either
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Opinion of the Court by Corrigan, J.
defendant actually make, or engage in negotiations that would
have led to their making, “an offer to plead guilty to the crime
charged or to any other crime,” as provided in Evidence Code
section 1153. (Italics added.) Their revelations of guilt for
other, uncharged crimes to reduce their obligations to pay
restitution and maximize their in-prison spending ability do
not bring them within the statute.
4. CALJIC No. 3.00
Defendants contend the trial court erred in giving the jury
former CALJIC No. 3.00, which told them that each principal
involved in the commission of the crime, whether as a direct
perpetrator or an aider and abettor, is “equally guilty” of the
offense. Neither Amezcua nor Flores objected or requested any
modification of the standard language. Nonetheless, section
1259 allows us to reach the merits of any claim of instructional
error that potentially affects a party’s substantial rights.
(People v. Johnson (2016) 62 Cal.4th 600, 639.) Defendants
each assert error as to different convictions.
Amezcua raises the CALJIC No. 3.00 issue in connection
with his conviction as an aider and abettor in the Diaz and
Madrigal murders and the attempted murder of Fernando
Gutierrez during the Madrigal killing. As noted, Flores was
the actual killer in those instances. Diaz was killed by nine-
millimeter gunfire while riding on the handlebars of a bicycle
pedaled by Paul Gonzales. Gonzales identified Flores as the
shooting passenger in a black SUV that made two U-turns to
drive past the bike. He did not identify the driver. The
prosecution introduced Flores’s extrajudicial admission that
while being driven by Amezcua, Flores fired five shots from a
nine-millimeter weapon, killing a man riding on bicycle
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
handlebars. Hearing this admission, Amezcua laughed and
said to the prosecutor, “Catch me?” The prosecution also
introduced admissions of Flores that he was the shooter and
Amezcua the driver of a “four-runner” when Flores shot a man
in the mouth.
As to the Madrigal killing, evidence showed the victim was
parking his Chevrolet Blazer when a car stopped alongside and
someone yelled, “Where you from?” Madrigal’s passenger,
Gutierrez, said, “We’re not from nowhere.” Gutierrez told
police there were four Hispanic men with shaved heads in the
car and the passenger shot Madrigal. The fatal bullet was a
nine-millimeter. During discussions with the prosecutor,
defendants spoke of a shooting involving a Blazer. Flores said
he shot the driver in the face and neck, and that the passenger
ran. Amezcua agreed. Asked the reason for the shooting,
Amezcua said, “He was a gang member, man,” and described
the act as “a vandal type of thing. You’re driving around your
neighborhood looking for people to kill.”
Flores raises the CALJIC No. 3.00 issue in connection with
his conviction of the George Flores and Reyes murders, in
which Amezcua was the actual killer. Briefly, the
prosecution’s evidence at trial showed that defendant Flores
was riding in a stolen Toyota driven by Katrina Barber.
Defendant Amezcua rode in a Monte Carlo driven by fellow
ESBP member Luis Reyes. The cars passed a Ledford Street
residence where George Flores and several friends were
socializing outside. The Toyota and Monte Carlo turned
around and came toward the home. Amezcua got out of the
Monte Carlo, exchanged words with George Flores, and pointed
a gun at him. Shots were fired; Flores was killed; and Joe
Mayorquin was wounded. The two cars drove off. Because the
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
Toyota was experiencing engine trouble, Barber pulled off the
freeway and saw Amezcua shoot Reyes. Flores asked
Amezcua, “What are you doing that here for?” The men
partially dragged Reyes from the Monte Carlo. Even though
his right leg remained in the car, Flores told Barber to drive
away and “[j]ust run [Reyes] over.”
Defendants correctly observe that, contrary to a possible
implication of former CALJIC No. 3.00, an actual killer and an
aider/abettor are not always guilty of the same offense.
Rather, in a homicide prosecution not involving felony murder
or the natural and probable consequences doctrine, the
aider/abettor’s guilt is based on the combined acts of all the
principals and on the aider/abettor’s own knowledge and
intent. Consequently, in some circumstances an aider/abettor
may be culpable for a greater or lesser crime than the actual
killer. (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) People
v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 335
recognized that the standard instruction “generally stated a
correct rule of law,” in that “[a]ll principals, including aiders
and abettors, are ‘equally guilty’ in the sense that they are all
criminally liable.” (Id. at p. 433.) However, former CALJIC
No. 3.00 “could be misleading if the principals in a particular
case might be guilty of different crimes and the jury interprets
the instruction to preclude such a finding.” (Ibid.)
Here the prosecution sought to prove murder under
theories of premeditation, lying in wait, and drive-by shooting.
Defendants contend that as to each theory, the evidence did
not clearly show that the aider/abettor shared the direct
perpetrator’s mens rea. Consequently, the unmodified CALJIC
No. 3.00 could potentially have misled the jury into convicting
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PEOPLE v. AMEZCUA and FLORES
Opinion of the Court by Corrigan, J.
the aider/abettor without making the requisite factual
findings. The contention is unpersuasive.
Because the circumstances of this case reflected the
defendants’ joint participation in the offenses at issue with the
required intent to kill, the trial court did not err in giving the
jury the unmodified CALJIC No. 3.00. Neither the evidence
nor any theory of defense argued at trial or cited in the briefs
suggested that Amezcua and Flores entertained different
states of mind rendering them guilty of different crimes. In
relevant portions of statements to the prosecutor, both
defendants admitted to the Diaz and Madrigal killings. Flores
explained that the motivation for those offenses was
“territorial” and that, by committing them, they were trying to
instill fear in other gangs. The attempted murder of Fernando
Gutierrez in the same incident as the Madrigal killing is
indistinguishable in the relevant respect. The Mayorquin and
George Flores murders fit a similar pattern of a shooting done
for gang-related purposes and can be analyzed similarly for
purposes of the current claim of error. The Luis Reyes murder
was factually a bit different. Reyes was a fellow member of
ESBP, defendants’ own gang. Flores did ask Amezcua “[w]hat
are you doing that here for?” But almost immediately
thereafter Flores urged Katrina Barber to “run [Reyes] over”
with the Monte Carlo, evidencing his own intent to kill Reyes.
Reyes was still alive when defendants left the scene. The
evidence thus amply supported an inference that defendants
shared the same intent with respect to each of the charges, and
for that reason no modification of the instruction was
warranted.
Other instructions, moreover, reinforced the requirement
that the jury find the intent-to-kill element proven in order to
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Opinion of the Court by Corrigan, J.
convict of murder or attempted murder on a theory of aiding
and abetting. CALJIC No. 3.01, as given in this case, provided
that “[a] person aids and abets the commission of a crime when
he or she: [¶] (1) with knowledge of the unlawful purpose of
the perpetrator, and [¶] (2) with the intent or purpose of
committing or encouraging or facilitating the commission of
the crime, and [¶] (3) by act or advice aids, promotes,
encourages or instigates the commission of the crime.” The
requirement that the aider/abettor know of the perpetrator’s
unlawful purpose, intend to facilitate that purpose, and do an
act that assists or facilitates the purpose, sufficiently explained
the required mens rea. CALJIC No. 17.00, also given here,
requires the jury to decide each defendant’s guilt separately.
5. Prosecutorial Misconduct in Inviting Jury to View
the Case through the Victims’ Eyes
Defendants contend prosecutorial misconduct deprived
them of due process and a fair trial. They assert that the
prosecutor made an improper appeal to jurors’ sympathy for
the victims during guilt phase closing argument. The
prosecutor expressed concern that jurors would find
themselves benumbed by the evidence of so many murders,
arguing: “My concern, and I will just tell you right now here
my concern is okay, you see one murder. You look at that,
wow. You see two murders, wow. [¶] Three, wow. [¶] Four,
then the fifth murder you see and you start to think, wow,
people really do this. This isn’t a movie. This is not a movie.
This is not a television show, but what worries me is over time,
you can get what? More pictures you look at it, the more you
can get numb to it.” The prosecutor reminded the jurors to
“remember what justice is.” He continued: “Remember what it
must have been like to be one of their victims being shot and
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Opinion of the Court by Corrigan, J.
choking and trying to get your last breath out while your blood
is gurgling in your lungs. What it must be like to be one of
those people.” Turning to Amezcua’s actions on the Santa
Monica Pier, specifically the assault on Jing Huali, the
prosecutor said: “What do we know? Jing Huali, while she
was laying down, the defendant shot her. An assault with a
firearm. I point a loaded gun at your head, the assault is
complete. That’s it; it’s done. You do not have to fire. [¶] I
put my left arm around and I put a gun to your head, a loaded
gun, completed, done, proven. I bet you would feel assaulted if
someone had a loaded gun pointed at your head. [¶] She was
shot.”
Preliminarily, defendants failed to object to the
prosecutor’s remarks and did not request a jury admonition.
Consequently, they forfeited their misconduct claims. (People
v. Hinton (2006) 37 Cal.4th 839, 863.) Defendants seek excusal
of forfeiture on the ground that an admonition would not have
cured the harm. In the alternative, they contend trial counsel
rendered ineffective assistance in failing to make a timely
objection.
Were this court to reach the merits of the claim, it would
appear the argument crossed the line of impropriety. “The
standards governing review of misconduct claims are settled.
‘A prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct, and such actions
require reversal under the federal Constitution when they
infect the trial with such “ ‘unfairness as to make the resulting
conviction a denial of due process.’ ” [Citations.] Under state
law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally
unfair trial.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29.)
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Opinion of the Court by Corrigan, J.
Although a prosecutor may vigorously argue the case, appeals
to sympathy for the victim during an objective determination
of guilt fall outside the bounds of vigorous argument. (People
v. Pearson (2013) 56 Cal.4th 393, 441; People v. Stansbury
(1993) 4 Cal.4th 1017, 1057; People v. Fields (1983) 35 Cal.3d
329, 362–363.) Here, as in Stansbury and Fields, by inviting
jurors to view the crime through the victims’ eyes, the
prosecutor made an improper appeal to emotion and sympathy.
The remarks here constituted but a brief part of the
argument, however, and the evidence of defendants’ guilt,
including their own admissions, was overwhelming.
Accordingly, there is no reasonable probability the impropriety
affected the guilt verdicts. (People v. Pearson, supra, 56
Cal.4th at pp. 441–442; People v. Stansbury, supra, 4 Cal.4th
at p. 1057.) Based on that want of prejudice, defendants’ claim
of ineffective assistance of counsel in failing to object to the
remarks lacks merit. Nor, contrary to Flores’s claim, did the
remarks prejudice defendants at the penalty phase, where
“ ‘considerable leeway is given for emotional appeal so long as
it relates to relevant considerations.’ ” (People v. Sanders
(1995) 11 Cal.4th 475, 551.) The terror defendants inflicted on
victims and their callousness in doing so are legitimate factors
for consideration.
C. Penalty Phase Issues
1. Trial Court’s Acquiescence in Defendants’ Refusal
To Allow Their Counsel To Present Penalty Phase
Defense
The day before closing guilt phase arguments, defendants
and their four counsel asked to meet with the court in camera.
A transcript of the closed hearing covers 24 pages. Counsel
told the court that each client had informed them repeatedly
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Opinion of the Court by Corrigan, J.
and emphatically that they did not want any defense presented
should there be a penalty phase. We summarize that hearing
in some detail.
Counsel for Amezcua reported that “throughout my
representation,” his client instructed that he did not want his
family called as witnesses. He “has expanded that now . . . he
does not wish me to put on any defense, any witness in the
course of the penalty phase.” Amezcua agreed that counsel
could prepare for the penalty phase, which he did. Counsel
explained the “nature of the penalty presentation” and told his
client that any chance for a life sentence would be “diminished
if not completely eliminated by the failure to present any
mitigating evidence.” Amezcua told his lawyer that he
understood, and his counsel believed he did so. Counsel asked
to bring the matter to the court’s attention, give the court a
chance to inquire, and “give Mr. Amezcua an opportunity to
refute anything I am saying.”
The court asked if it should discuss the situation with
each defendant separately. Counsel related both defendants
and their lawyers had discussed the question together in the
last day or two and that both defendants wished to confer with
the court together.
Counsel for Flores reported that his client had the same
intention. Counsel had reviewed the penalty-phase evidence
he had prepared and had “explained it all to him.” “I have told
him we have a much better chance of avoiding the death
penalty” by presenting mitigating evidence. Counsel had three
family members and three experts prepared to set out nine
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Opinion of the Court by Corrigan, J.
points in mitigation.15 After that explanation, Flores had said,
“ ‘No, I don’t want that. I don’t want my parents involved. I
want no witnesses on my behalf. Period.’ ”
The court asked Amezcua’s counsel to summarize the
mitigating evidence he was prepared to introduce. Counsel
replied his presentation would be “somewhat along the same
lines.” He had seven to 10 family members available to testify,
along with a psychologist and a social historian. He would
offer a three-hour tape recording of the hostage negotiations
which would reveal a different and “much softer side” of
Amezcua.
The court explained to both defendants that it wanted “to
make sure that it is very clear as to what [each] defendant
wants” and said it would ask both of them “what it is you
really want here.” “It’s also important for me to establish that
your decision is knowing and voluntarily made.”
It went on to explain, “I am also charged with the
responsibility of trying to persuade one or both of you to
change your mind, to encourage you to consult further with
your attorney before making any final decision.” The court told
defendants that “a decision not to put on mitigating evidence
could result in a verdict of death” and would “not be a basis for
a reversal of that verdict.” The judge was going to talk first
with defendants together, and then separately, “just to make
15
Testimony would address parental criminality, drug
abuse, rejection, and neglect; family instability and poverty;
Flores’s exposure to domestic abuse; and his asserted learning
disabilities and head injuries. An expert would also describe
conditions of incarceration.
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Opinion of the Court by Corrigan, J.
sure that one is not influencing the other.” The court heard
from Flores first.
Flores repeated that he understood the jury might decide
a death sentence was too harsh for him, “but I refuse to allow
my attorneys to attempt to sway their opinion.” The court
asked why. Flores replied: “I do not want my attorneys to . . .
put my family and friends or whoever on there and make it —
blame them for something I may have done.” “I did it without
them. In my mind I stand alone. . . .” “[I] am very adamant
about it — will not allow anybody, nobody to get them on the
stand.” Asked when he made this decision, Flores replied,
“2000, Fourth of July,” the day, five years earlier, when he had
been arrested. When the court observed, “You’ve been
thinking about it for quite a while,” Flores confirmed, “Yes.”
Turning to Amezcua, the court asked: “Tell me in your
own words what it is you are thinking.” Amezcua replied: “I
don’t want nobody up there crying on my behalf, when I didn’t
think about them when I was out there. . . . I care about them
but that’s my own personal thing.” Told by the court that he
“might very well get the death penalty,” Amezcua replied: “I
fully understand; right?” “Mr. Perlo and Mr. Miller [his
counsel] have a done a great job in defending me. . . . [¶] I
talked to them and his investigators, whoever, right? And, to
tell you the truth, I feel bad for not letting him do his job to the
extent I hog-tied him the whole way. . . . If he would have done
that, I would have gone pro per.”
Returning to defendant Flores, the court asked if he had
any questions about what mitigating evidence was available.
It reminded him that “your counsel have worked hard and
have developed evidence they would like to present. You
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Opinion of the Court by Corrigan, J.
understand that?” Flores responded: “Oh, yeah,” and added,
“[T]hey did a great job in that.”
The court told Amezcua: “You understand that your
counsel have put together some information, a lot of
information.” He replied: “I just want really to absolve him
from any lack of effort on his behalf. . . . It’s been my choice
from way before, I mean, I ever got arrested. I understood my
actions would get me to this point in life way before I ever got
arrested.”
The court asked both defendants if they had heard of the
phrase “suicide by cop,” and each confirmed he had. The court
said, “[M]y fear is that’s kind of what you guys are doing here.”
Flores rejected the notion: “I understand your feeling. I
understand what you are saying. . . . But my thing is I feel if I
do get death, more than likely I will die on death row by
natural causes of old age. . . . I mean there is 640 people before
me — actually 639 because one just got a reversal.”
Asked if he intended “suicide by cop,” Amezcua
responded, “No, because I will tell you the reason why it’s not.
Because the day that I got arrested I had three choices: Either
take my own life, get arrested, or either let them do it
themselves. And I knew by me taking my life was a coward
way out.” He wanted to give his family “an opportunity to say
good-bye to me and I say good-bye to them, also, and let them
understand that it’s not their fault, because they blame
themselves.”
Flores elaborated: “I don’t want to die. If I want to die
where I’m at, I’d kill myself. . . . But my thing is if I do go to
death row, I am going to get a way better appeal action. . . .
And if I go to death row, I believe there’s some technicalities in
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my case that maybe one day with [a lawyer’s] assistance with
little words or something, that they will get me back out, and I
may be old, but I believe I will be back in a level four one.”16
The court asked if their decision was based on concerns
for their safety in prison. Amezcua said: “Never been.” Flores:
“No, never.” The court then said: “And you both understand
that if you get a death verdict, you know that this is not going
to be a grounds for reversal.” Flores responded they were
“giving that piece only up,” but that all other grounds for
appeal were open. The court reminded them that they had the
right to testify and ask the jury to impose a death sentence. It
clarified that it was not encouraging them to do so and would,
in fact, discourage it. It did want to make sure they were
aware of their right to testify, “just like you have the right to
testify in the guilt phase.”
The court ended the discussion by saying: “The main
thing is to say this: You are in control of the evidence that is
offered at a penalty phase; okay? [¶] You seem to know that
already, but that is the law. And even though [defense
counsel] have prepared and want to put on the mitigating
evidence and they want to argue to the jury that you should
not get the death penalty, you are the controlling person and
you can say ‘no, I don’t want you to put that evidence on.’ ”
The court began the separate conversations with Flores
and his counsel. It noted that the prosecutor had said Flores
could have been a lawyer and the court said it had been
impressed with his intelligence. It complimented him on his
16
Level four refers to the inmate classification housing
system, a level at which Flores had been held before.
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Opinion of the Court by Corrigan, J.
affection for reading and mentioned two books by a defense
lawyer describing his courtroom work. It reminded him that,
even if he were incarcerated for life he could help other
inmates and do other worthwhile things in prison. It urged
Flores to think more about his decision while the jury was
deliberating on guilt. It reminded him that the presentation of
mitigating evidence might make a big difference. The court
asked Flores whether he had any questions.
Flores said he understood the court was fulfilling its
obligation to make sure the choice he was making was his own
and was made knowingly. Flores assured the court: “I am
fully aware that this is the decision I am making, and I am at
ease with the decision, and I know my family members
disagree with it and I’ve asked them not to come [to court]
several, several times. . . . I’d rather keep this part of my life
separate.” Flores told the court he would “take what you said
in consideration.”
The court then met with defendant Amezcua and his
defense team. It explained it knew Flores and Amezcua were
friends but wanted to make sure this decision “is your decision
and that you are not letting anybody influence you, including
Mr. Flores.” It urged Amezcua that the court “would really like
you to think about this.” It reminded him that that there is
always a potential to do good things but that a death sentence
would be more limiting than a sentence of life. It added: “I
don’t want you to make a decision . . . that you’ll regret.”
Amezcua told the court, “I thought about it for five
years. . . . And I allowed Mr. Perlo to do his extensive research
on my past.” He assured the court it need not be concerned.
The court reminded him that he would have additional time
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during guilt deliberations to reconsider his choice. Amezcua
replied: “I could have saved you the time and trouble down the
road. I am not going to sway from my decision.”
The next morning the court met with all defense counsel
and both defendants. It asked Flores and Amezcua if they had
had a chance to think about the previous day’s discussion and
whether either had changed his mind. Each defendant
confirmed he had thought about the question and his mind was
unchanged. Both defendants confirmed they wanted no
mitigating evidence presented, no prosecution witness cross-
examined, and no argument made on their behalf. Amezcua
offered to put his wishes in writing, but the court replied that
the written transcript would serve that purpose. The court
went on to discuss the case of People v. Sanders (1990) 51
Cal.3d 471, wherein the defendant had made a similar choice.
It again asked each defendant if it was his choice to have no
defense evidence or argument presented and no cross-
examination of the People’s witnesses. Again, each stated that
he had so chosen. All four counsel told the court they agreed
that those decisions reflected their client’s sincere belief.
The court read excerpts from the Sanders opinion and
explained again that, based on that precedent, counsel on
appeal could not argue it was error for the defense not to
argue, present evidence, or cross-examine. Flores responded:
“I am fully aware I am giving up our appeal action.” Asked if
he had any questions about what was being said, Amezcua
replied, “None.” After further colloquy, the court accepted the
statements of the defendants and their counsel. The penalty
phase proceeded according to defendants’ directives. When
counsel requested certain penalty phase instructions, each
defendant objected. The instructions were not given.
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Amezcua and Flores rely on the principle that when a
defendant elects to be represented by counsel, he has no right
to control the attorney’s strategic and tactical decisions
regarding the defense, including requests for jury instructions.
(People v. Hamilton (1989) 48 Cal.3d 1142, 1163, 1164, fn. 14.)
In their view, the court’s permitting them to override their
attorneys’ efforts to present a penalty defense, including the
selection of jury instructions, denied them their rights to
counsel and a reliable penalty determination. They also assert
that the state’s independent interest in fair, accurate, and
reliable penalty verdicts was violated. They acknowledge that
decisions such as People v. Bloom (1989) 48 Cal.3d 1194, 1218–
1228 (Bloom), People v. Lang (1989) 49 Cal.3d 991, 1030
(Lang), People v. Sanders, supra, 51 Cal.3d at pages 526–527
(Sanders), and People v. Deere (1991) 53 Cal.3d 705, 717
(Deere), denied relief on claims arising from the failure to
present a penalty defense at trial. They distinguish those
cases as involving either self-represented defendants or
instances of ineffective assistance of counsel, a claim they are
not raising here. To the extent those decisions are inconsistent
with the position they assert here, they ask this court to
reconsider them.
Defendants’ arguments are unpersuasive. Thirty years of
precedent, beginning with Bloom, supra, 48 Cal.3d 1194, has
consistently held, among the core of fundamental questions
over which a represented defendant retains control is the
decision whether or not to present a defense at the penalty
phase of a capital trial, and the choice not to do so is not a
denial of the right to counsel or a reliable penalty
determination. (See People v. Snow (2003) 30 Cal.4th 43, 119–
121; Deere, supra, 53 Cal.3d at p. 717; Sanders, supra,
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51 Cal.3d at pp. 526–527; Lang, supra, 49 Cal.3d at p. 1030;
Bloom, at p. 1228.) “ ‘[T]he required reliability is attained
when the prosecution has discharged its burden of proof at the
guilt and penalty phases pursuant to the rules of evidence and
within the guidelines of a constitutional death penalty statute,
the death verdict has been returned under proper instructions
and procedures, and the trier of penalty has duly considered
the relevant mitigating evidence, if any, which the defendant
has chosen to present. A judgment of death entered in
conformity with these rigorous standards does not violate the
Eighth Amendment reliability requirements.’ ” (Sanders, at p.
526, fn. omitted.) Nor is a defendant deprived of his Sixth
Amendment right to counsel by virtue of counsel’s acquiescence
in the defendant’s own decision that no defense shall be
presented on his behalf. That decision is the defendant’s to
make. (Lang, at pp. 1030–1031.) Despite the general rule that
counsel is responsible for the selection of jury instructions, the
requested instructions were properly refused in the face of
defendants’ objection. As the court implicitly recognized, the
only reason for requesting them would be to seek a sentence of
life without parole rather than death, the very decision the law
commits to the defendant personally.
McCoy v. Louisiana (2018) ___ U.S. ___, 138 S.Ct. 1500,
further supports our conclusion. There the high court
distinguished between the different purviews of counsel and
client. Trial management is controlled by counsel. It
encompasses such functions as determining “ ‘what arguments
to pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.’ ”
(Id. at p. ___ [138 S.Ct. at p. 1508].) Choice of the defense
objective is the client’s prerogative. (Ibid.) Defendants claim
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that the decision to present certain mitigating evidence or
request particular jury instructions are aspects of trial
management. As such they are controlled by counsel even
after defendants made clear their desire to present no penalty
phase defense. They are incorrect. To accept their argument
would be to read out of existence the allocation of
responsibilities the high court recognized in McCoy.
The record clearly demonstrates defendants’ objective in
this case. The court engaged in extensive and careful colloquy
with defendants and their counsel to ensure that each
defendant understood the stakes involved in pursuing his
choice. It ensured each defendant had the benefit of the court’s
own counsel, as well as that of his lawyers. It confirmed that
both defense teams had prepared a case in mitigation and were
ready to present it. It gave each defendant several
opportunities to ask questions and to explain his choice in his
own words. It expressed its own concerns for each defendant
as an individual and for the preservation of each man’s
procedural safeguards. The court interacted with each
defendant directly and with courtesy. It took the same kind of
care that is required when ensuring that the waiver of any
substantial right is personally and properly made. It explicitly
found that each defendant had made his own choice knowingly
and voluntarily. The procedure employed here satisfied the
state’s interest in assuring the fairness and accuracy of the
death judgments consistently with McCoy.
2. Instruction that Death Is a Greater Punishment
than Life Imprisonment without the Possibility of
Parole
During voir dire, the trial court instructed prospective
jurors that death is a greater punishment than life
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imprisonment without parole: “The law says life without
parole is a lesser sentence. It’s less serious than death. Many
of you said [in questionnaire responses], My God, I’d rather be
dead than spend my life in prison. I’m telling you, the law that
you have sworn to follow says, No, you cannot consider that.
That may be your personal feeling. But you must agree to
follow the law and the law says life without parole is a lesser
punishment to death.” Counsel for both defendants objected,
arguing that the law allows a jury to return a verdict of life
without parole even if factors in aggravation substantially
outweigh those in mitigation. Thus, they asserted the law does
not establish that death is the more serious punishment.
Defense counsel also asserted that the instruction tended to
constrain jurors’ decisionmaking by implying that they may
not return a verdict of life without parole because it is less
serious than a death verdict. The court said it found the
question interesting and would look into it. Later during jury
selection, when a prospective juror expressed the view that
death was “the easy way out,” the court repeated that life
without parole is the lesser punishment, and the defense again
objected. The court overruled the objection, stating it had
found no law on the point, but the standard jury instructions,
providing that only if the evidence in aggravation substantially
outweighs that in mitigation may the jury return a death
verdict, represented the state of the law.
Acknowledging that several of this court’s decisions
support the trial judge’s ruling (see, e.g., People v. Tate (2010)
49 Cal.4th 635, 707; People v. Harris (2005) 37 Cal.4th 310,
361), defendants renew their claim of error. They urge that
the ranking of the death penalty as more severe than life
imprisonment without parole is arbitrary and violates the
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Eighth Amendment. The authorities to which they point do
not assist them. They point to United States Supreme Court
decisions recognizing a condemned prisoner’s autonomy
interest in forgoing appellate relief from a death sentence (e.g.,
Gilmore v. Utah (1976) 429 U.S. 1012, 1016–1017); to various
state laws recognizing a terminally ill person’s right to
physician-assisted suicide (e.g., Or. Rev. Stat. § 127.800 et seq.;
Tex. Health & Saf. Code § 166.046(e); Wash. Rev. Code Ann. §
70.245.010 et seq.), and to the asserted existence of conditions
in California prisons to argue that a rational person might
prefer death to continued incarceration (see, e.g., Brown v.
Plata (2011) 563 U.S. 493, 503–504). Obviously those cases are
factually distinguishable. The state’s policy of exacting the
ultimate penalty for only the most aggravated crimes is a
moral and normative choice independent of, and
distinguishable from, the individual preferences of either
persons potentially subject to the penalty or those who are
called upon to impose it.
D. Constitutionality of the Death Penalty Law
Defendants contend that many features of California’s
capital sentencing scheme, alone or in combination with each
other, violate the federal Constitution. They acknowledge that
this court has rejected similar claims but assert that we have
never considered the cumulative impact of the purported
defects or addressed the functioning of the system as a whole.
In their view, the asserted broad applicability of the death
penalty, in the context of a statute lacking certain procedural
safeguards, results in an unacceptable risk of constitutionally
unreliable death judgments.
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In People v. Anderson (2018) 5 Cal.5th 372, we considered
and rejected a similar argument. “Even considering the
arguments in combination, and viewing the death penalty law
as a whole, it is not constitutionally defective. Defendant’s
challenges to California’s death penalty scheme ‘are no more
persuasive when considered together,’ than when considered
separately.” (Id. at p. 426.) We reach the same conclusion
here.
Regarding defendants’ specific challenges, we adhere to
views previously expressed. Thus:
The special circumstances set forth in section 190.2
adequately narrow the class of murderers subject to the death
penalty. (People v. Thomas (2011) 52 Cal.4th 336, 365.)
Section 190.3, factor (a), does not permit the arbitrary and
capricious imposition of the death penalty. (People v. Virgil
(2011) 51 Cal.4th 1210, 1288.)
The death penalty law is not unconstitutional because it
does not require unanimous jury findings, beyond a reasonable
doubt, that particular aggravating factors (other than prior
criminality) exist or that jurors all agree on which aggravating
circumstances outweigh those in mitigation. (People v. Salazar
(2016) 63 Cal.4th 214, 255.) Nor is it the case that “ ‘the cruel
and unusual punishment clause of the Eighth Amendment, [or]
the due process clause of the Fourteenth Amendment, requires
that jurors in a capital case be instructed that they must find
beyond a reasonable doubt that aggravating circumstances
exist or that aggravating circumstances outweigh mitigating
circumstances or that death is the appropriate penalty.’ ”
(Ibid.) “ ‘The United States Supreme Court’s decisions in
Apprendi v. New Jersey [(2000)] 530 U.S. 466, and its progeny,
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do not establish a Sixth Amendment right to determination of
particular aggravating factors, or a finding that aggravation
outweighs mitigation beyond a reasonable doubt or by a
unanimous jury.’ [Citation.] Likewise, ‘neither the cruel and
unusual punishment clause of the Eighth Amendment, nor the
due process clause of the Fourteenth Amendment, requires a
jury to find beyond a reasonable doubt that aggravating
circumstances exist or that aggravating circumstances
outweigh mitigating circumstances or that death is the
appropriate penalty.’ ” (People v. Townsel (2016) 63 Cal.4th 25,
72.)
“ ‘Written findings by the jury are not constitutionally
required.’ ” (People v. Salazar, supra, 63 Cal.4th at p. 256.)
The absence of a requirement of intercase proportionality
review does not violate the Eighth Amendment. (People v.
Thompson (2010) 49 Cal.4th 79, 143.)
“[T]he jury’s consideration of unadjudicated criminal
conduct pursuant to section 190.3, factor (b), does not offend
the Fifth, Sixth, Eighth, or Fourteenth Amendments to the
federal Constitution or analogous provisions of the California
Constitution.” (People v. Young (2005) 34 Cal.4th 1149, 1226.)
The inclusion in the list of potential mitigating factors of
such adjectives as “extreme” (see § 190.3, factors (d), (g)) and
“substantial” (see id., factor (g)) does not act as a barrier to the
consideration of mitigation in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments. (People v. Foster (2010)
50 Cal.4th 1301, 1365.)
The trial court was not required to instruct that certain
sentencing factors (specifically, section 190.3, factors (d), (e),
(f), (g), (h), and (j) that are introduced by the phrase “ ‘whether
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or not’ ”) are relevant only as potential mitigators. (People v.
Mendoza (2011) 52 Cal.4th 1056, 1097.)
The California sentencing scheme does not violate the
equal protection clause of the Fourteenth Amendment by
denying capital defendants certain procedural safeguards
afforded to noncapital defendants. (People v. Johnson, supra,
62 Cal.4th at p. 657.)
California law does not violate international norms, and
thus contravene the Eighth and Fourteenth Amendments, by
imposing the death penalty as regular punishment for
substantial numbers of crimes. (People v. Merriman (2014)
60 Cal.4th 1, 107.)
E. Cumulative Error
Amezcua, joined by Flores, contends that errors in his
trial, even if not sufficiently prejudicial to require reversal of
the judgment when considered individually, do warrant
reversal when assessed cumulatively. We have concluded any
error in the prosecutor’s guilt phase closing was harmless, as
was Dr. Scheinin’s testimony relating autopsy results derived
from a different pathologist’s report. Whether considered
individually or cumulatively the errors do not warrant
reversal.
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III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
O’ROURKE, J.*
*
Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
63
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Amezcua & Flores
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S133660
Date Filed: February 28, 2019
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Robert J. Perry
__________________________________________________________________________________
Counsel:
Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Appellant Oswaldo
Amezcua.
David H. Goodwin, under appointment by the Supreme Court, for Defendant and Appellant Joseph Conrad
Flores.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Janyce Keiko Imata Blair
1609 Border Avenue
Torrance, CA 90501
(310) 606-9262
David H. Goodwin
P.O. Box 50724
Pasadena, CA 91115
(323) 666-9960
Viet H. Nguyen
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6125