People v. Morales

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ALFONSO IGNACIO MORALES,

Defendant and Appellant.

S136800

Los Angeles County Superior Court

VA-071974

August 10, 2020

Justice Kruger authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Groban concurred.

PEOPLE v. MORALES

S136800

Opinion of the Court by Kruger, J.

A jury convicted defendant Alfonso Ignacio Morales of four

counts of first degree murder (Pen. Code, § 187) and other

crimes. For each murder, it found true the special

circumstances that Morales committed multiple murders and

murder in the commission of a burglary. (Id., § 190.2, subd.

(a)(3), (17).)1 The jury returned a verdict of death. This appeal

is automatic. (Id., § 1239, subd. (b).) We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 13, 2002, the bodies of Miguel Ruiz (who was

known as Mike), Maritza Trejo, Ana Martinez, and Jasmine

Ruiz were discovered in the home they shared.2 Mike, Maritza,

and Ana had been fatally stabbed. Jasmine, who was then eight

years old, had been sexually assaulted and died from

asphyxiation. Morales was linked to the murders through

physical evidence, including shoe prints and a palm print found

at the home, fingerprints found on goods stolen from the home,

1

For one of the four murders, the jury also found true the

special circumstances of murder involving torture, a lewd act on

a child under the age of 14, and sexual penetration by force.

(Pen. Code, § 190.2, subd. (a)(17), (18).)

2

Because several of the victims and witnesses shared the

same last names, we will occasionally refer to them by their first

names. We intend no disrespect to any of the individuals in

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DNA found on Jasmine’s body, and bloody clothes and knives

located on Morales’s property. Morales also admitted to law

enforcement officers that he had been in the house at the time

of the murders, though he denied committing them.

Morales was charged with four counts of first degree

murder (counts 1–4; Pen. Code, § 187, subd. (a)); one count of

first degree robbery (count 5; id., § 211); one count of first degree

burglary (count 6; id., § 459); one count of a forcible lewd act

upon a child (count 7; id., § 288, subd. (b)(1)); and one count of

sexual penetration by a foreign object (count 8; id., § 289, subd.

(a)(1)). Morales was also charged with the following special

circumstances: multiple murders (counts 1–4; id., § 190.2, subd.

(a)(3)); murder in the commission of a robbery (counts 1–4; id.,

§ 190.2, subd. (a)(17)(A)); murder in the commission of a

burglary (counts 1–4; id., § 190.2, subd. (a)(17)(G)); murder by

torture (count 4; id., § 190.2, subd. (a)(18)); murder in the

commission of a lewd act upon a child under the age of 14 (count

4; id., § 190.2, subd. (a)(17)(E)); and murder in the commission

of sexual penetration by a foreign object, force, and violence

(count 4; id., § 190.2, subd. (a)(17)(K)). Finally, Morales was

charged with the following enhancements: personal use of a

deadly and dangerous weapon in commission of a felony (counts

1–3, 5, and 6; id., § 12022, subd. (b)(1)); great bodily injury on a

person 70 years of age or older (count 3; id., § 12022.7, subd. (c));

use of force, violence, duress, menace, and fear of immediate and

unlawful bodily injury (count 7; id., § 1203.066, subd. (a)(1));

substantial sexual contact with a victim who is under 14 years

of age (count 7; id., § 1203.066, subd. (a)(8)); and great bodily

injury (counts 7–8; id., § 12022.8).

The jury convicted on all counts and found true the special

circumstances of multiple murders and murder in the

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commission of a burglary on all four murder counts. With

respect to count 4, concerning Jasmine’s murder, the jury also

found true the special circumstances of murder by torture,

murder in the commission of a lewd act upon a child under the

age of 14, and murder in the commission of sexual penetration

by a foreign object, force, and violence. In addition, the jury

found true several enhancement allegations: personal use of a

deadly and dangerous weapon in commission of a felony (on

counts 1, 2, 3, and 6); use of force, violence, duress, menace, and

fear of immediate and unlawful bodily injury (count 7);

substantial sexual contact with a victim who is under 14 years

of age (count 7); and great bodily injury (counts 7 and 8). At the

penalty phase, the jury returned a verdict of death. The

superior court sentenced Morales to death.

A. Guilt Phase Evidence

In 2002, Mike lived with his common law wife Maritza, his

grandmother Ana, his stepdaughter Maritza Raquel Trejo (who

was known as Raquel), and his and Maritza’s eight-year-old

daughter Jasmine in a three-bedroom home in Whittier.

Jasmine and Raquel shared a bedroom. Morales, who was in his

mid-20’s at the time, lived around the corner from the family.

Morales and Mike were friends; Morales would visit the family’s

home almost every day to hang out with Mike.

On his visits, Morales sometimes briefly interacted with

Raquel and Jasmine, usually sharing just quick hellos. But on

one occasion Morales made Raquel uncomfortable by standing

in the backyard, staring at her through her bedroom window,

and asking her to come outside. After the encounter, Morales

apologized to Mike and Maritza and bought the whole family

dinner. Morales also once asked Raquel on a date, and she said

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“maybe,” though she did not want to go out with him, so she

avoided him on the night of their date. Thereafter, she felt

uncomfortable around him and began staying in her room

whenever he came over to the family’s house.

Sometimes when Morales visited Mike at home, he would

drive his car (a green Mustang), though he lived just down the

street. Hector Alvarez, a neighbor of the family, would see

Morales’s Mustang at the house approximately four days a

week. About two months before the murders, Alvarez stopped

seeing Morales’s car in front of the family’s house, and about a

month before the murders, he stopped seeing Morales at the

house. Raquel also realized about a week before the murders

that Morales had stopped coming to the house.

The murders occurred sometime after 9:00 p.m. on

Thursday, July 11, 2002, and before 8:30 a.m. on Friday, July

12, 2002. Mike and Maritza were last seen alive between 8:30

and 9:30 p.m. on Thursday night, when one of Mike’s friends

visited them at their home for 15 to 30 minutes. Raquel spent

the night at her uncle’s house that night. The family’s back-door

neighbor, Doris Morris, saw a step stool against the wall of her

property that abutted the family’s property on either Thursday

or Friday morning: At trial in 2005, Morris testified she saw the

stool on Thursday morning at around 8:00 a.m. and moved it at

about noon, but in an interview with law enforcement officers

on Saturday, July 13, 2002, Morris said she had seen the stool

on Friday morning at around 6:00 a.m. and moved it at about

11:00 a.m. Morris’s backyard was not enclosed, so someone

could walk directly from Morris’s backyard to Morales’s house

down the street.

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Between 8:00 and 8:30 a.m. on Friday, Mike’s father and

his father’s wife stopped by the family’s house. They knocked

on the front door and on Ana’s bedroom window, but no one

answered, so they left after about five to 10 minutes. It was

unusual for everyone to be asleep so late. Mike did not show up

to work at 9:00 a.m., even though he had a scheduled meeting

at that time with Harold Suarez, a distant relative and

customer, and was usually very punctual. At around 9:15 a.m.,

Suarez called Mike’s cell phone; someone answered the phone,

waited for a few seconds without speaking, and then hung up.

Suarez called again five to 10 minutes later and the same thing

happened. At various times throughout the rest of the day,

Raquel and Mike’s sister-in-law, Kenelly Zeledon, attempted to

call Mike, but they could not reach him. At about 9:00 p.m.,

Raquel went to her house with her uncle. Her parents’ cars were

in the driveway, but all of the house doors were closed, and the

curtains were shut. She knocked on the doors, but no one

answered. She left the home between 10:00 and 10:30 p.m. to

stay at Zeledon’s house.

At 11:00 p.m. on Friday, Leopoldo Salgado, a local bar

manager, saw Morales at the bar. Morales, who visited the bar

frequently but did not drink, asked to talk to Salgado. Salgado

asked Morales to wait until closing, after which Morales left the

bar. At around 2:00 a.m., Salgado saw Morales sitting in his car

in the bar parking lot, but Salgado did not have time to talk at

length with Morales.

On Saturday, July 13, 2002, at around 6:00 a.m., Doris

Morris saw a large trash barrel and step stool against her wall

abutting the family’s property. The step stool was different than

the one she had seen previously. When she went outside at 6:15

a.m., both the stool and the barrel were gone.

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On Saturday morning, around 11:00 a.m., after failing to

reach Maritza by phone, Raquel and Zeledon returned to

Raquel’s house. No one responded when Raquel knocked, so she

jumped over the fence and entered the home through the

unlocked kitchen door at the back of the house. She found the

house in complete disarray, with blood and food items on the

walls and floors, towels on the floors, furniture moved, and items

missing from Mike’s office. Raquel went outside and told her

aunt about the state of the home. Zeledon entered the home and

noted the disorder. In Mike’s office, she found blood all over,

items moved around, and a pair of pants on the floor, which was

strange because Mike was usually tidy. In the master bedroom,

she noticed furniture had been moved. And in Jasmine and

Raquel’s room, there was honey all over the furniture. She then

walked into Raquel and Jasmine’s bathroom and saw Jasmine’s

lifeless body in the bathtub. On top of Jasmine was a large

statue that covered almost the entire length of her body. She

also had blood running down her leg. Zeledon then entered

Ana’s bedroom, where she found the bodies of Mike, Maritza,

and Ana. Mike was wearing only underwear (which Raquel

testified was unusual), Maritza was wearing a tank top and

shorts, and Ana was wearing a nightgown. Zeledon exited the

house, told Raquel what she had found, and asked a neighbor to

call 911.

The police arrived and began documenting and collecting

evidence. They found blood all over the house. In the entryway,

the walls and door had blood spatter and smears. In the living

room, they found blood spatter and pooled blood on the floor, as

well as potential handprints on the sofa, which was smeared

with blood. There also was a trail of blood with drag marks

leading out of the living room toward the bedrooms. It appeared

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as if someone had tried to clean up some of the blood; there were

diluted blood smears, towels on the floor, and a bucket of liquid

and a mop. In the office, there were multiple blood stains on the

walls. Police found a bloody hoop earring under the desk, which

matched an earring Maritza was found wearing. In a hamper

in the bathroom by the office, the police found a shirt and shorts

with blood stains. In the bathroom where Jasmine’s body was

found, there were bloodstains on the floor and sink and in the

bathtub. The tub also had a soap scum ring around its interior,

indicating it had been drained.

The police also documented several pieces of physical

evidence. Tomato paste, barbeque sauce, and honey had been

poured all over the walls and on the bed linens. The police

discovered a six-to-eight-inch-long purple sex toy in the bathtub,

between Jasmine’s legs. In the closet of Mike’s office, the police

found an empty package that might have contained the sex toy.

They found pieces of orange cord on the bathroom floor, on the

bed in the master bedroom, and underneath Ana’s body. On the

bodies of Mike and Maritza, they found a bottle and cleaner-like

substance. The police also took shoe impressions from multiple

locations in the home, including from a wooden chair found in

the girls’ bedroom.

In addition to documenting and collecting evidence at the

scene, officers began investigating potential leads. This effort

led them to Morales’s home. One officer noticed shoe prints near

Morales’s front door that appeared similar to the impression

discovered on the wooden chair in the girls’ bedroom. During

their conversation with Morales, the officers asked to see the

bottom of Morales’s boots. Believing the shoes might match the

impression from the chair, the officers asked Morales to come to

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the station for an interview. Morales agreed. This interview

was the first of three interviews of Morales.

In this first interview, Morales denied knowing anything

about the murders. During the course of the interview, he

mentioned that he was not allowed in the girls’ bedroom. He

agreed to give the officers his boots and consented to a search of

his house. After the interview, while officers transported him to

a different police station, Morales admitted that he was in the

victims’ house when they were murdered.

Morales was then interviewed a second time. He told the

officers he went to the family’s house on Wednesday night (later,

he said he was not sure of the day) around 8:00 p.m. and saw

through the office window two men with guns talking to Mike.

The men called Morales inside, taped his hands, and put him in

the living room. Then they began killing the family. The men

started in the office with Mike, who then came into the living

room with his throat bleeding. They then attacked Maritza, who

had been in the kitchen making coffee, and she died in the living

room. They then killed Ana, who had been in her bedroom. And

they finished by assaulting and killing Jasmine in the back of

the house. The men directed Morales to make a mess in the

house and told him to take Mike’s computer equipment.

Morales put the stolen items into a large trash barrel and

dragged it to his house.

In his third interview, Morales mostly repeated the same

story, but this time he stated that the events took place on

Thursday night at 8:00 p.m., and he said Ana was in the living

room when the men killed her and that they dragged her, Mike,

and Maritza to the back of the house. He also told officers that

he went to Mike’s home that night to repay him $50 of a $100

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debt. He mentioned that Mike had asked him not to ask Raquel

on a date again after the window incident and that he complied

with this request. Morales said that after the men finished

killing the victims, they threatened to kill him if he told anyone

what had happened, but they allowed him to leave. Morales

continued to deny having participated in the killings.

Significant physical evidence connected Morales to the

crime. The police conducted a sexual assault examination of

Jasmine, and sperm found in Jasmine’s anus conclusively

matched Morales’s DNA profile; sperm found in her vagina was

consistent with Morales’s DNA. Morales’s palm print was found

on the handle of the mop located in the entryway. Morales’s

shoe matched the impression found on the wooden chair in the

girls’ bedroom. Blood from the tip of Morales’s shoelace matched

Maritza’s profile, and Mike was a possible contributor. In

Morales’s shed, they found the trash barrel with electronics from

the family’s home. Morales’s fingerprints were on many of the

items in the barrel. And in Morales’s bedroom, officers found a

model car and watches that belonged to Mike, jewelry, and a

little girl’s wristwatch.

Later that year, in October 2002, Morales’s stepfather

found two ammunition boxes underneath a woodpile in

Morales’s backyard. One of the boxes contained, among other

things, bloody clothes, including boxers, and a six-inch Vaquero

folding knife. The other box contained similar items, including

a black jacket, a dagger in a sheath, a five-inch United knife in

a sheath, and two bloody fingerless gloves. Morales’s stepfather

identified several of these items (but not the knives) as

belonging to Morales. Blood on the United knife handle

matched Maritza’s DNA profile, with Morales as a possible

contributor; blood on the Vaquero knife matched Mike’s profile,

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with Maritza as a possible contributor. The base of the third

knife tested negative for blood, but the wooden handle yielded

weak positive results. Blood on the jacket matched Maritza’s

profile, with Morales as a possible contributor. Sperm cells on

the boxers matched Morales’s profile, while blood and an

epithelial cell were consistent with both Jasmine’s and

Morales’s profiles.

Medical examiners conducted autopsies of each of the four

victims. Mike had multiple sharp-force injuries on his body,

including on his neck and back. The cause of death was a slicing

wound to the front of his neck, which severed his jugular veins.

Such a wound is not immediately fatal and could have given

Mike time to stagger a few feet before collapsing. The wound to

his neck was consistent with an attack from behind. One of his

wounds was consistent with a double-edged knife and another

was consistent with a single-edged knife, indicating that the

attacker had used two different knives. Mike had no defensive

wounds. A postmortem injury to his right wrist was consistent

with being dragged with a cord after death.

Maritza was stabbed 31 times and cut 14 times; some

injuries were consistent with a single-edged knife while others

were consistent with a double-edged knife. She had at least five

fatal wounds — on her neck, chest, and back — and the injuries

were consistent with someone who had struggled with and fled

her attacker. Some of the wounds were clustered on various

parts of her body, including her neck and back.

Ana suffered two fatal sharp-force wounds to her neck; the

wounds were consistent with an attacker holding two different

weapons. Ana also had a blunt-force injury to her scalp and

other minor injuries, but no defensive wounds.

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Jasmine died from asphyxiation, either by body

compression or drowning. Dried foam found around her nose

and mouth suggested she had been drowned. She also had small

petechiae (tiny hemorrhages on the skin) all over her neck and

face, suggesting body compression on the upper chest.

Extensive injuries to her genitalia and anus, including severe

tearing, stretching of the skin, hemorrhaging, and bruising,

suggested the use of extreme force by a blunt object. She also

suffered other minor injuries, including fingernail marks on her

ankle and genitals, scratches on her thighs, and small abrasions

on her left buttock and foot. She likely suffered these injuries

while alive, but she may or may not have been conscious.

The prosecution called Sheriff’s Deputy Paul Delhauer to

testify as a crime scene reconstruction expert. Delhauer had

examined between 800 and 900 cases in his career and had

frequently analyzed blood spatter, knife wounds, and blood

stains. Delhauer testified to the potential relative locations and

sequence of the murders, as well as the manner of the killings,

based on his analysis of the reports and documents in the case,

personal observations made at the scene, blood stains and

spatter in the home, the autopsy reports, other physical

evidence found in the home, and his own experiments. He also

testified that the crime scene appeared to have been staged to

mislead investigators about what had occurred.

The defense presented one guilt phase witness,

investigator Richard Salazar. Salazar testified that an object

Delhauer had identified as a bidet hose, which Delhauer

suggested might have been used to cleanse Jasmine’s vaginal

and rectal areas, was actually a hose that attached to a hookah

pipe, which was used for smoking tobacco and other substances.

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B. Penalty Phase Evidence

During the penalty phase, the People called several family

members of the victims to provide victim impact evidence:

Raquel, Zeledon, Mike Rodriguez, Sr. (Mike’s father and Ana’s

son), Luz Ruiz (Rodriguez’s wife), and Olga Lizzette Ruiz (Mike’s

sister). These family members testified about their previous

relationships with the victims, the personalities of the victims,

and the impact of the murders on their lives. The People also

introduced several pictures of the victims and a one-minute

video of Jasmine.

The People introduced two prior criminal act allegations

against Morales. A law enforcement officer testified that while

Morales was in jail in December 2002, the officer discovered in

Morales’s cell a plastic spoon with one side sharpened and a

thread wrapped around the handle. The officer believed this

item was a shank, though Morales had claimed he used it to

transport written messages to other prisoners (i.e., as a “fishing

line”). Another officer testified that in February 2003, he found

a contraband razor blade and what he believed to be a

homemade handcuff key in Morales’s cell.

Morales’s witnesses testified about his upbringing, his

learning disability, and his record in school and at work.

Morales grew up with his mother, his sister Yvonne, and his

brother Emi. When Morales was young, his father left the

family. After that, many of his mother’s subsequent partners

were abusive toward Morales. One partner physically abused

Morales. Another partner, who was an alcoholic, verbally

abused Morales starting at the age of 10, mostly about Morales’s

apparent lack of intelligence. When Morales was in his teens,

Emi died unexpectedly in a rockslide in Yosemite. Morales was

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devastated and became isolated after Emi’s death. Yvonne said

she would not wish Morales’s childhood on anyone. Morales’s

mother described him as a child in a man’s body. He often

needed his mother’s help doing a variety of tasks, like filling out

paperwork.

Morales also struggled in school. As early as the first

grade, he was at the bottom of the class. Throughout most of his

education, he attended special education classes. His fourth

through sixth grade teacher testified that Morales seemed

depressed and was not very social. By the eighth grade, Morales

was reading at only a first grade level, with a very limited

vocabulary. He was withdrawn and dejected and often picked

on by other kids. These trends continued in high school.

Two experts testified that Morales had a severe learning

disability. While Morales’s IQ was average or just below

average in certain subjects, he struggled in subjects that

required him to express himself. This discrepancy was

consistent with someone with a learning disability, as opposed

to someone with an intellectual disability. One expert testified

that Morales’s truancy was likely tied to his learning disability.

The second expert confirmed these findings. He concluded that

Morales had suffered from long-standing brain damage and

learning disabilities. While Morales had an average IQ, he

struggled expressing his thoughts. Morales also tended to react

impulsively, rather than after considered thought.

On rebuttal, the People introduced evidence that Morales

had been dismissed from a vocational program during high

school. As part of the program, Morales had tried various jobs

and a remedial program. He was fired from his job as a summer

camp counselor because he dunked a seven-year-old camper’s

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head in the toilet. And he was dismissed from the remedial

program because he was not attending all of his classes.

Because of these incidents and his refusal to abide by the

vocational program’s requirements, he was eventually

dismissed from the program.

II. DISCUSSION

A. Guilt Phase Issues

1. Sufficiency of the Evidence of Premeditation and

Deliberation

Morales challenges his first degree murder convictions on

the ground that the evidence was insufficient to show he

committed the murders with premeditation and deliberation.

We reject the challenge.

“When considering a challenge to the sufficiency of the

evidence to support a conviction, we review the entire record in

the light most favorable to the judgment to determine whether

it contains substantial evidence — that is, evidence that is

reasonable, credible, and of solid value — from which a

reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

We determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307,

319.) In so doing, a reviewing court “ ‘ “presumes in support of

the judgment the existence of every fact the trier could

reasonably deduce from the evidence.” ’ (People v. Edwards

(2013) 57 Cal.4th 658, 715 [161 Cal.Rptr.3d 191, 306 P.3d

1049].)” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)

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“Murder is the unlawful killing of a human being, or a

fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).)

If the murder is “willful, deliberate, and premeditated,” it is first

degree murder. (Id., § 189, subd. (a).) “ ‘ “In this context,

‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’

means ‘formed or arrived at or determined upon as a result of

careful thought and weighing of considerations for and against

the proposed course of action.’ ” ’ ([People v. Jurado (2006)

38 Cal.4th 72, 118].) ‘ “An intentional killing is premeditated

and deliberate if it occurred as the result of preexisting thought

and reflection rather than unconsidered or rash impulse.” ’

(Ibid.; see also People v. Anderson (1968) 70 Cal.2d 15, 24–34 [].)

‘The true test is not the duration of time as much as it is the

extent of the reflection. Thoughts may follow each other with

great rapidity and cold, calculated judgment may be arrived at

quickly . . . .’ (People v. Thomas (1945) 25 Cal.2d 880, 900

[156 P.2d 7].)” (People v. Potts (2019) 6 Cal.5th 1012, 1027.)

In People v. Anderson, supra, 70 Cal.2d at page 26

(Anderson), we identified “three basic categories” of evidence

this court has generally found sufficient to sustain a finding of

premeditation and deliberation: (1) planning activity, or “facts

about how and what defendant did prior to the actual killing

which show that the defendant was engaged in activity directed

toward, and explicable as intended to result in, the killing”;

(2) motive, or “facts about the defendant’s prior relationship

and/or conduct with the victim from which the jury could

reasonably infer a ‘motive’ to kill the victim”; and (3) manner of

killing, or “facts about the nature of the killing from which the

jury could infer that the manner of killing was so particular and

exacting that the defendant must have intentionally killed

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according to a ‘preconceived design’ to take his victim’s life in a

particular way for a ‘reason’ . . . .” (Id. at pp. 26–27.)

In the years since Anderson, “ ‘we have emphasized that

its guidelines are descriptive and neither normative nor

exhaustive, and that reviewing courts need not accord them any

particular weight.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 324.)

Anderson provides “a framework to aid in appellate review,” but

it does not “define the elements of first degree murder or alter

the substantive law of murder in any way.” (People v. Perez

(1992) 2 Cal.4th 1117, 1125.)

Here, focusing on the three Anderson categories, Morales

argues that the prosecution failed to introduce evidence of

planning activity, motive, or a manner of killing sufficient to

find he committed the murders with premeditation and

deliberation, as opposed to rash impulse. We disagree; sufficient

evidence supported a finding of premeditation and deliberation.

As for planning activity, the People presented evidence

that Morales surreptitiously entered the victims’ home and

attacked Mike by surprise before killing the other victims.

Specifically, a law enforcement officer testified that the family’s

back-door neighbor, Doris Morris, had told him on Saturday,

July 13, 2002, that she had seen a step stool by her back wall on

Friday morning at around 6:00 a.m. (Though Morris testified at

trial that she saw the stool at 8:00 a.m. on Thursday, the jury

could have believed Morris’s contemporaneous statement to be

more reliable than her testimony in court several years later.)

Further, Mike was wearing only his underwear when he was

attacked; Raquel testified that Mike did not walk around the

home in his underwear. The fatal slicing wound to Mike’s neck

was consistent with an attack from behind, and Mike did not

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have any defensive wounds. And finally, the evidence showed

that Mike was the first victim — indeed, Morales himself told

officers as much in his own recounting of the sequence of the

murders by unknown third parties. Based on all this evidence,

the jury could have inferred that Morales covertly entered the

victims’ home with a plan to kill Mike before moving on to the

other victims.

Morales suggests that the evidence of planning activity

was undermined by the fact that no evidence definitively showed

he was armed when he entered the victims’ home. Although

knives used to commit the murders were later found in

Morales’s backyard, no evidence established that the knives

belonged to Morales, as opposed to the victims. The same is true

of the bloody fingerless gloves that were found along with the

knives in Morales’s backyard. But a jury might well consider

the very fact that Morales used gloves and three different knives

as supporting an inference that Morales did not spontaneously

pick up these tools once inside the home, but instead arrived

prepared to attack. In any event, even assuming Morales found

the knives in the residence rather than arming himself before

entry, the evidence of the surprise attack on Mike makes it

reasonable to infer that Morales sought out the knives to

effectuate that surprise, and did not pick up the three knives out

of spur-of-the-moment impulse. (See People v. Perez, supra,

2 Cal.4th at p. 1126; People v. Wharton (1991) 53 Cal.3d 522,

547.)

The People also supplied evidence of a possible motive.

The evidence suggested that a rift had grown between Morales

and the victims. Morales had previously made Raquel

uncomfortable by standing at her window and staring at her.

He also had asked her out, but she avoided him on the night of

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their date and then began avoiding him whenever he came over.

During his interviews with the police, Morales told them he was

not allowed in Raquel and Jasmine’s bedroom, and he said that

Mike had asked him not to ask Raquel out again after the

window incident. Sometime thereafter, about a month before

the murders, the family’s neighbor, Hector Alvarez, stopped

seeing Morales at their home, even though Alvarez had

previously seen Morales there about four times a week. Raquel

confirmed that about a week before the murders she realized

Morales had stopped coming over. Morales also admitted to

owing Mike a small sum of money, which he said was the reason

he went to the family’s house on the morning of the murders.

Though there was evidence Morales had apologized for the

window incident and had complied with Mike’s request to stop

seeking to date Raquel, the jury could have inferred from this

evidence that Morales and Mike had a falling out regarding

Raquel or the money Morales owed Mike, such that Morales was

no longer welcome at Mike’s home. Based on this evidence, the

jury could have determined that Morales had a motive for the

murders.

The jury might also have inferred from the evidence that

Morales was motivated to kill Maritza, Ana, and Jasmine to

“silence [them] as [] possible witness[es]” to the murder of Mike,

and in Jasmine’s case “to silence her as a possible witness” to

her own assault. (People v. Pride (1992) 3 Cal.4th 195, 248.)

And lastly, Morales stole several expensive items, including

watches and computer equipment, from the home, suggesting an

additional motive: to steal from the family and then kill them

to avoid identification. (See People v. Perez, supra, 2 Cal.4th at

pp. 1126–1127.)

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The manner of killing also supports the jury’s finding of

premeditation and deliberation. Evidence showed that Mike

suffered a fatal slicing wound to his neck from behind, which

severed both of his jugular veins. The nature of this injury

suggests that it was designed to kill Mike. (See People v. Booker

(2011) 51 Cal.4th 141, 152, 173 [multiple stab and cut wounds

to the neck that severed right carotid artery and jugular vein

indicated victim was killed deliberately]; see also Anderson,

supra, 70 Cal.2d at p. 27 [“[D]irectly plunging a lethal weapon

into the chest evidences a deliberate intention to kill . . . .”];

People v. Potts, supra, 6 Cal.5th at p. 1028 [multiple stab

wounds to chest suggested killing was premeditated and

deliberate].) Likewise, the injuries to Ana and Maritza

suggested a deliberate intent to kill. Ana suffered two fatal

wounds to her neck, and Maritza suffered 45 stab and cut

wounds, some of which were clustered on her neck and back, and

at least five of which were fatal wounds delivered to her neck,

chest, and back, respectively. (Cf. People v. San Nicolas (2004)

34 Cal.4th 614, 658 [“The jury also fairly could have concluded

that defendant was intent upon killing April due to the sheer

number of wounds on April’s body, many of which individually

would have been fatal.”]; People v. Pride, supra, 3 Cal.4th at

p. 248 [“Over 40 of the 69 stab wounds were located on [the

victim’s] chest and back. They were ‘clustered’ — in some cases

‘symmetrically’ — on the left side, near the heart. Based on the

number and placement of the wounds and the apparent fact that

[she] was the second victim, the jury could infer her death was

calculated and was not the product of an unconsidered explosion

of violence.”].) As to Jasmine, there was evidence that she died

either from body compression or drowning. From the evidence,

the jury could have concluded that Morales put the large statue

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on Jasmine’s unconscious body in a filled bathtub in order to be

certain she would drown, demonstrating a deliberate intent to

kill.

The killing of the victims was also prolonged, a fact that

“supports an inference of deliberation.” (People v. Sandoval

(2015) 62 Cal.4th 394, 425.) Morales’s attacks on both Maritza

and Ana involved “multiple weapons” and “numerous stabs and

slashes” suggesting the attacks were extended. (People v. Potts,

supra, 6 Cal.5th at p. 1028.) So too with the attack on Jasmine;

the evidence tended to show she was assaulted while alive and

then killed. Moreover, the evidence showed the attacks

“ ‘occurred in stages,’ ” as reflected by Morales’s own description

of the events and demonstrated by the evidence that, after Mike

was attacked, Maritza then struggled with his attacker before

she, too, was killed. (Ibid., quoting People v. Streeter (2012)

54 Cal.4th 205, 244.) And the jury could have interpreted the

evidence as showing that Morales had to “travel through the

house” to kill the victims. (Potts, at p. 1028.) Significant

amounts of blood in the office, entryway, and living room

suggested attacks occurred in each of those locations. Moreover,

Morales’s story to the police as well as the location of Jasmine’s

body suggested Jasmine was killed in the back of the home, as

opposed to in the front of the home where the evidence showed

the other attacks occurred.

Finally, Morales’s actions after the murder could have

reasonably contributed to the jury’s finding that he committed

the murders with premeditation and deliberation. The jury

could have reasonably inferred from the evidence that Morales

stayed at the home after he murdered Mike to kill the other

members of the family, and that, after killing the remaining

family members, he stayed to steal items and to “stage” the

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crime scene by cleaning up some of the blood and making a mess.

He also took the time to hide his bloody clothes, the bloody

gloves, and the murder weapons in his backyard. The jury

reasonably could conclude these actions were inconsistent with

impulsive and rash behavior. (See People v. Perez, supra,

2 Cal.4th at p. 1128 [“[T]he conduct of defendant after the

stabbing, such as the search of dresser drawers, jewelry boxes,

kitchen drawers and the changing of a Band-Aid on his bloody

hand, would appear to be inconsistent with a state of mind that

would have produced a rash, impulsive killing. Here, defendant

did not immediately flee the scene.”]; People v. Potts, supra,

6 Cal.5th at p. 1028 [“Further, a jury could quite reasonably

infer that a person who followed a horrific double homicide by

opening a package of cookies was not surprised and dismayed by

what he had done, as one who acted impulsively might be.”]; cf.

People v. Famalaro (2011) 52 Cal.4th 1, 36 [holding that

defendant’s choice to hide bloody gloves and murder weapons

was an attempt to conceal evidence relevant to premeditation

and deliberation of the killing].)

In sum, the evidence of planning, motive, manner of

killing, and Morales’s actions after the murder, taken together,

was sufficient to support the jury’s finding that the murders

were premeditated and deliberate.

2. Admission of Crime Scene Reconstruction Expert

Testimony

Morales argues that the trial court violated both state

evidence law and his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights by admitting testimony of the People’s crime

scene reconstruction expert. We reject the argument.

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a. Background

As noted, at trial, the People called Sheriff’s Deputy Paul

Delhauer as a crime scene reconstruction expert. At a pretrial

hearing, defense counsel sought to exclude certain opinions

included in Delhauer’s expert report. In response, the

prosecution signaled it did not intend to solicit Delhauer’s

opinions on the challenged issues: Delhauer would only testify

about crime scene staging, as well as physical items at the scene

and evidence of the manner and method of death. Defense

counsel noted he had not challenged the portions of the report

regarding staging, subject to the prosecution setting a proper

foundation for Delhauer’s training and experience. The court

agreed Delhauer would not be permitted to testify beyond his

expertise but stated it would not exclude Delhauer’s

observations about the crime scene.

The People called Delhauer as their final witness at trial.

Delhauer had been a criminal profiler and crime scene analyst

(otherwise known as a crime reconstructionist) since 1999. He

had a bachelor of arts degree and had taken a college-level

physics for health sciences course, but most of his training and

experience had come through work. He had worked in various

departments of the sheriff’s office. In 1995, he spent six months

in the coroner’s office, where he conducted more than 200 death

investigations and saw between 300 and 400 stab wounds. He

eventually landed in the homicide bureau, where he was trained

in, among other topics, homicides, sexual assault investigations,

blood spatter analysis, and crime scene reconstruction.

Delhauer examined between 800 and 900 cases, including 70

murder investigations, while in the homicide bureau. Over the

course of his career, he had been directly involved in or assisted

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in more than 6,000 criminal cases. Since becoming a

reconstructionist, he had consulted on more than 300 cases.

Delhauer had also received specific training relevant to

crime scene reconstruction, including blood spatter analysis. In

addition to training he received through his department,

Delhauer took a 40-hour class in which he learned about the

dynamics and composition of blood and conducted around 40

experiments aimed at reproducing bloodshed. In his trainings,

he also learned about different blood stains and pattern stains.

He had conducted nearly 200 of his own reconstruction

experiments for his cases, which included experiments on

bloodshed, blunt force trauma, and sharp force and stab wounds.

Specifically as to knife wounds, he had conducted relevant

examinations at the coroner’s office, interviewed the surviving

victims of knife attacks, and conducted between 40 and 50 of his

own experiments with various media, including meat and

modeling clay, to reproduce knife wounds. He also continually

maintained his education on these issues. He had previously

qualified as an expert in Los Angeles County Superior Court

eight or nine times.

After describing his experience and training, Delhauer

explained how he had prepared to testify as an expert in the

case. Before testifying, he had been to the crime scene for an

hour and a half on the morning of Saturday, July 13, 2002; read

all of the crime reports, interviews, forensic reports, and autopsy

reports in the case; examined all of the photographs taken by

law enforcement officers and the coroners; and conducted his

own experiments.

Delhauer then briefly shared his overarching conclusions

about how he believed the murders had been committed. He

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believed the victims were killed in the following order: Mike,

Maritza, Ana, then Jasmine. Mike had been killed from behind,

likely by surprise, as indicated by Mike’s lack of defensive

wounds and the debilitating slice wound to the front of his neck,

which Delhauer believed was Mike’s first injury. He believed

Mike was attacked in the office. Maritza likely entered Mike’s

office while or just after Mike was attacked. She was attacked

in the office and then chased to the house’s entryway, where she

was eventually killed. There was less evidence as to how Ana

had been killed, but he believed she was the third person

murdered. She likely was in the back of the house when she

heard sounds and came into the living room. In the living room,

blood stains close to a broken statue suggested the assailant

might have used the statue to create the blunt force trauma on

Ana’s head. Finally, he testified that he believed Jasmine had

been sexually assaulted and then drowned while unconscious.

He based this conclusion on the lack of indicators of

strangulation and the lack of evidence of splashing or attempts

to escape from under the large statue that had been placed on

top of her body in the bathtub.

The rest of Delhauer’s testimony was aimed at supporting

these conclusions. Delhauer testified about the evidence in the

house room by room, beginning with the house’s entryway. He

first described the blood spatter patterns in the entryway.

Defense counsel objected on the grounds of speculation and lack

of foundation, but the court overruled the objection. Delhauer

testified that the spatter showed that someone had been moving

toward the front door and had attempted to open it, at which

point the person was attacked and then fell to the ground.

Defense counsel again objected, and the parties had a side bar

with the court. The court found that Delhauer qualified as an

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expert witness, and that he could testify about what he believed

had happened, as long as it was based on the evidence (like the

blood stains) and it was within his expertise. At that point, the

defense lodged a continuing objection for lack of foundation.

Delhauer then continued with his analysis of the entryway blood

spatter. He concluded by saying he believed the murders had

not started in the entryway. He believed the blood was

Maritza’s. He opined that Maritza had entered the entryway

already wounded, tried to open the front door, suffered a

continued attack, and fell down to the floor, where she was

continually stabbed. She was then dragged away to the back

rooms, as indicated by drag marks on the floors.

Delhauer next testified about evidence in Mike’s office.

Based on blood spatter on clothes on the floor of the office,

Delhauer testified Mike had not been wearing the clothes when

he was killed. Over a defense objection, Delhauer testified that

the blood spatter in the office showed that someone who was

bleeding had moved from the office to the living room; he later

testified that some of the spatter was consistent with Mike

moving out of the room. He concluded that some of the blood

spatter in the office was consistent with Mike’s fatal neck injury,

which he believed had been inflicted from behind. He also

testified that one of Morales’s knives was consistent with Mike’s

neck wound. Bloody clothes were found in a hamper in the office

bathroom, along with a rubber hose. Delhauer believed the hose

was for use with a bidet, which is used to clean the vagina and

anus, and that it had been wiped clean of blood. He opined on

cross-examination that the hose may have been used to clean

Jasmine’s vaginal and rectal areas. Maritza’s earring was also

discovered under the office desk. From this and some blood

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spatter on one of the walls, Delhauer concluded Maritza suffered

the stab wound to her ear in the office.

Turning to the living room, Delhauer identified certain

blood stains as drag marks, which he concluded were made

when the assailant dragged the bodies of Maritza and Mike to

the back of the house, as also evidenced by the ligature marks

on Mike’s arm. He also identified one large blood stain and one

smaller stain in that room. The larger stain near the couch was

consistent with Mike’s injury, while the smaller stain may have

been made when Ana was killed or when Mike or Maritza was

dragged through the area. He testified that the elbow of a

human-shaped statue in the living room was consistent with the

pattern injury on Ana’s head. Delhauer also described how the

food items and other random objects strewn about the house

suggested someone had staged the crime scene to create a false

narrative about what had happened at the scene.

After discussing pictures of Ana’s bedroom, where Mike’s,

Maritza’s, and Ana’s bodies were discovered, Delhauer

discussed pictures of Jasmine in the bathtub and her injuries,

and then turned to pictures of Jasmine’s bedroom. He opined

that an herbal salad dressing stain on Jasmine’s bed was

consistent in shape with the purple sex toy found in the bathtub

between Jasmine’s legs. Finally, Delhauer testified about some

of the items found in the ammunition boxes in Morales’s

backyard. Delhauer concluded that two of the three knives

found in the boxes had been used in the attack.

On cross-examination, defense counsel elicited the

following facts: Delhauer had a liberal arts degree in

communications, with no master’s degree and no degrees in

criminal forensics or science. He believed he had first received

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relevant training for his expert testimony in grammar school

math and science classes, and then in high school. He had only

taken one college-level science course, in physics for health

sciences. And he never conducted any autopsies while working

at the coroner’s office. In preparing to be an expert for this case,

he had not viewed the bodies firsthand, spoken to any medical

examiners, or looked at any physical evidence other than during

his single trip to the victims’ home right after the murders. But

at the time he visited the house, he was not there in his role as

a reconstruction expert, and he did not take any notes.

Delhauer also disagreed with several of the People’s

medical examiner and criminalist witnesses on a few points.

Contrary to the medical examiner’s testimony, he believed the

attacker had cut Mike’s throat with his right hand, not his left.

And he believed the wound margins of Mike’s wound were

serrated, while the medical examiner testified they were clean.

His initial conclusions were also contrary to several of the

criminalists’ testimony, but he said he would be willing to

change his opinion on those issues. For example, though he

believed there were blood stains in the girls’ bedroom and on the

bed in the master bedroom, the criminalists testified otherwise.

Finally, defense counsel challenged the bases of some of

Delhauer’s conclusions. Defense counsel questioned Delhauer’s

conclusion that the salad dressing stain on Jasmine’s bed was

made by the sex toy, asking whether the stain was not also

consistent with a bottle of dressing found at the scene and

exposing that Delhauer had no evidence that the sex toy had

ever been placed in dressing. Delhauer also admitted that the

blood in the entryway had not been typed, so he could not say it

was from only a single person. As to Delhauer’s experiments, he

had not used the knives in evidence, and he acknowledged that

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clay is different than skin and that motion changes the size and

shape of wounds, such that he could not perfectly replicate the

injuries. Finally, defense counsel asked many questions about

Delhauer’s conclusion that the hose found in the office bathroom

was a bidet hose. Delhauer acknowledged there was no

accompanying bidet bag found in the home, no other apparent

means of using the hose, and no direct photographs of the item.

After the prosecution rested, defense counsel called a single

witness, who had spent 13 years in the Los Angeles Police

Department’s narcotics unit, to testify that tubes like the one

found in the house are used with a hookah, a device for smoking

tobacco and other substances.

After both sides rested, the parties and the court further

discussed Delhauer’s testimony. The court again confirmed that

Delhauer’s blood spatter testimony was probably “appropriate

and accurate” and that Delhauer had “an awful lot of on-the-job

training.” The court noted, however, that Delhauer had “tended

to overextend himself” when giving some of his opinions and had

“basically [given] an overview of the entire case.” But defense

counsel had also “done a very effective job of discrediting”

Delhauer, and the court told Morales he could argue as much in

closing. The court also believed that Delhauer’s testimony was

“largely cumulative.” For these reasons, the court admitted

Delhauer’s testimony over Morales’s renewed objection for lack

of foundation and speculation on state and federal constitutional

grounds.

b. Discussion

Evidence Code section 720, subdivision (a) provides that a

“person is qualified to testify as an expert if he has special

knowledge, skill, experience, training, or education sufficient to

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qualify him as an expert on the subject to which his testimony

relates. Against the objection of a party, such special

knowledge, skill, experience, training, or education must be

shown before the witness may testify as an expert.” The

witness’s expertise “may be shown by any otherwise admissible

evidence, including his own testimony.” (Id., § 720, subd. (b).)

Evidence Code section 801 provides that “[i]f a witness is

testifying as an expert, his testimony in the form of an opinion

is limited to such an opinion as is: [¶] (a) Related to a subject

that is sufficiently beyond common experience that the opinion

of an expert would assist the trier of fact; and [¶] (b) Based on

matter (including his special knowledge, skill, experience,

training, and education) perceived by or personally known to the

witness or made known to him at or before the hearing, whether

or not admissible, that is of a type that reasonably may be relied

upon by an expert in forming an opinion upon the subject to

which his testimony relates, unless an expert is precluded by

law from using such matter as a basis for his opinion.”

“ ‘The trial court’s determination of whether a witness

qualifies as an expert is a matter of discretion and will not be

disturbed absent a showing of manifest abuse.’ ” (People v.

Nelson (2016) 1 Cal.5th 513, 536.) We find such abuse only

where “ ‘ “ ‘the evidence shows that a witness clearly lacks

qualification as an expert.’ ” ’ ” (People v. Wallace (2008)

44 Cal.4th 1032, 1063.) “ ‘ “ ‘Where a witness has disclosed

sufficient knowledge of the subject to entitle his opinion to go to

the jury, the question of the degree of his knowledge goes more

to the weight of the evidence than to its admissibility.’ ” ’ ”

(Nelson, at p. 536, quoting People v. Bolin (1998) 18 Cal.4th 297,

321–322.) As with expert qualifications, we review trial court

decisions about the admissibility of evidence for abuse of

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discretion. Specifically, we will not disturb a trial court’s

admissibility ruling “ ‘except on a showing the trial court

exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of

justice.’ (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10

[82 Cal.Rptr.2d 413, 971 P.2d 618].)” (People v. Goldsmith

(2014) 59 Cal.4th 258, 266.)

Morales seeks to challenge the admissibility of Delhauer’s

testimony on two grounds. First, he argues that Delhauer’s

testimony regarding the sequence of the crimes was speculative

and lacked foundation. Second, he argues for the first time in

his reply brief that Delhauer was not qualified to interpret blood

spatter and that Delhauer’s testimony should have been

excluded for that reason as well.

As to the second argument, although Morales raised other

objections to Delhauer’s testimony in the trial court, he did not

object on the basis of Delhauer’s qualifications. We have held

that failure to specifically object to an expert’s qualifications

forfeits the objection. (See People v. Townsel (2016) 63 Cal.4th

25, 45–46; People v. Panah (2005) 35 Cal.4th 395, 478.) Morales

has now doubly forfeited the objection by waiting until his reply

brief to raise the issue. (People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4th 335, 408.)

But even had Morales not forfeited the claim, the claim

would fail under the deferential abuse of discretion standard.

Before becoming a crime scene analyst, Delhauer was trained

on blood spatter and crime scene reconstruction in the homicide

bureau and had examined between 800 and 900 cases. He also

trained for six months in the coroner’s office, where he examined

hundreds of knife wounds. And he had taken a college-level

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course in physics for health sciences. At the time of trial,

Delhauer had been working as a crime scene analyst for

approximately six years. In that role, he took a 40-hour course

on blood spatter, during which he learned about blood stains and

patterns and conducted around 40 bloodshed experiments.

Since then, he had conducted over 200 of his own reconstruction

experiments and consulted in over 300 cases. This training and

experience is comparable to that of blood spatter experts who

have been found qualified to testify in other cases. (See People

v. Hoyos (2007) 41 Cal.4th 872, 910 [qualified expert had a

bachelor’s degree in police science and management, and had

taken courses in crime scene reconstruction and bloodstain

patterns, given lectures on blood evidence, previously testified

on blood spatter evidence, conducted blood spatter analysis, and

visited homicide scenes], abrogated on other grounds in People

v. McKinnon (2011) 52 Cal.4th 610; People v. Wallace, supra,

44 Cal.4th at p. 1062 [qualified expert had six years’ experience

as a criminalist and a degree in biology, and had trained at a

criminalists institute, received 40 hours of education on blood

stains, read books and articles on the subject, and analyzed over

20 crime scenes, but had never qualified as an expert on

bloodstain interpretation]; People v. Clark (1993) 5 Cal.4th 950,

1018–1019 [“witness had: (1) attended lectures and training

seminars on the subject of blood dynamics . . . ; (2) read relevant

literature; (3) conducted relevant experiments; and (4) visited

crime scenes where ‘blood-spatter’ tests were conducted” (fn.

omitted)], disapproved on other grounds in People v. Doolin

(2009) 45 Cal.4th 390.) It is true that Delhauer’s qualifications

were in some ways less extensive than comparable experts:

Delhauer had no degree in criminal forensics or science, had

taken only one college-level science course, and had never

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conducted an autopsy. But given his relevant on-the-job

training and experience, we cannot say Delhauer “ ‘ “ ‘clearly

lack[ed]’ ” ’ ” the necessary qualifications, such that the trial

court abused its discretion in finding him qualified to testify as

an expert on blood spatter. (Wallace, at p. 1063, italics

omitted.)3

We turn, then, to Morales’s primary argument, that

Delhauer’s testimony as to the sequence of the murders should

have been excluded as speculative and lacking in foundation.

(See Evid. Code, § 801, subd. (b).) Here again, we cannot say the

trial court abused its substantial discretion in allowing the

testimony. (See People v. Goldsmith, supra, 59 Cal.4th at p. 266

[“[W]e will not disturb the trial court’s ruling ‘except on a

showing the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner . . . .’ ”].) Though

Delhauer’s initial overview of the sequence of events offered

little in the way of specific evidence for his conclusions,

particularly with respect to the sequence of Ana’s and Jasmine’s

deaths, over the course of the rest of his testimony, he presented

evidence that the trial court reasonably believed supported his

conclusions. Though Delhauer did not always tie this evidence

directly to his sequencing conclusions, we cannot say the

3

We decline Morales’s invitation to reach a different

conclusion based on a 2009 National Research Council Report

suggesting that formal scientific training, as well as experience

and experimentation, are important in conducting bloodstain

pattern analysis. This report, which was published long after

the trial in this case, does not change our conclusion that the

trial court acted within its discretion in finding Delhauer

qualified to testify as an expert based on his training and

experience.

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evidence laid no foundation for those conclusions. And, in any

event, even if the trial court erred in admitting the testimony,

we conclude that any such error was harmless.

Delhauer testified that the murderer first attacked Mike

in the office by surprise. To support this conclusion, Delhauer

noted Mike was not wearing clothes when he was killed and that

he was attacked from behind. Delhauer concluded Maritza was

attacked in the office just after Mike was attacked based on

blood spatter on the office wall and the location of her earring

under the office desk. He testified she then ran to the entryway,

where the murderer continued to attack her, based on the

consistency between the spatter in the entryway and the

numerous wounds she had suffered. The evidence that Maritza

exited the office and was attacked continuously in the entryway

supports a conclusion that her attack did not occur before Mike

was surprised. And given that the evidence showed she was first

attacked in the room in which Mike was attacked, it is at least

consistent with the evidence to say she was attacked just after

Mike.

The evidence Delhauer offered to support the sequence of

Ana’s and Jasmine’s killings is less substantial, but at least

some evidence supported his conclusions. He opined Ana had

died in the living room based on the consistency between her

head wound and a statue found on the living room floor, as well

as the small blood stain found in the room. The entryway where

Maritza died was connected to the living room, so evidence that

Ana died in that room could suggest she was killed just after

Maritza was killed nearby. And he concluded Jasmine had died

last by being drowned in the bathtub, based on the location of

her body, the foam around her mouth, and the lack of evidence

of strangulation. The evidence that Jasmine was first assaulted

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and then drowned in a different room of the house is consistent

with an opinion that she died last, when no adults remained

alive to help.

In light of the evidence supporting Delhauer’s sequence

conclusions, we conclude that the trial court did not abuse its

discretion by allowing Delhauer to testify as to this sequence. It

was not unreasonable to conclude that Delhauer’s opinions had

an adequate foundation in the trial evidence and were based on

his training and experience in crime scene reconstruction. (Cf.

People v. Robinson (2005) 37 Cal.4th 592, 631–632 [expert

testimony concerning the relative positions of the shooter and

the victims had adequate foundation where expert testified that

other possible positions would have been awkward]; People v.

Eubanks (2011) 53 Cal.4th 110, 148 [expert testimony at penalty

phase was not speculative because, “[b]ased on his extensive

training and experience, as well as on an examination of the

premises and a thorough review of the police and medical

reports in this case, [the expert] presented testimony regarding

bullet trajectories, stippling, and the relative positions of the

multiple victims and the shooter that was ‘sufficiently beyond

common experience that the opinion of an expert would assist

the trier of fact.’ (Evid. Code, § 801.)”]; People v. Nelson, supra,

1 Cal.5th at p. 537 [expert testimony about which victim was

shot first was admissible because expert relied on evidence in

the record]; People v. Prince (2007) 40 Cal.4th 1179, 1223

[“Experts on the subject of crime scene reconstruction, for

example, ordinarily may be permitted to give opinion testimony

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concerning such matters as the probable location where the

crime occurred . . . .”].)4

Morales argues that Delhauer’s opinions were

undermined by law enforcement’s failure to type the blood at

each location in the home. But contrary to Morales’s argument,

the blood at each location need not have been typed for Delhauer

to draw conclusions about the source of the blood; Delhauer

testified that he reached his conclusions by comparing the

spatter patterns to each victim’s wounds and by analyzing other

physical evidence in the home, such as the location of Maritza’s

earring. Given his qualifications, he was permitted to interpret

this evidence as he did. Delhauer’s testimony certainly would

have been strengthened by blood-typing evidence, but the

absence of such evidence did not render his opinions

impermissibly speculative and thus inadmissible.

As Morales notes, cross-examination exposed several

other weaknesses in Delhauer’s testimony, including that he

expressly disagreed with some of the coroners; he never viewed

the bodies of the victims firsthand; he conducted his testing

without using the actual knives in evidence; he did not review

any physical evidence; and he potentially misidentified the

hookah hose. But these weaknesses go to the weight to be given

the evidence, not its admissibility. What we have said in

previous cases applies equally here: “Defense counsel was

4

Delhauer did veer into unsupported speculation at various

points during his testimony — for example, when he opined that

Ana likely came out of the back of the house after hearing noises.

But Delhauer’s opinions about the locations and sequence of the

murders — which is the focus of Morales’s claim — did not

depend on these embellishments. Any error in admitting these

minor embellishments was harmless.

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entitled to present his own expert as a defense witness on the

issue of [crime scene reconstruction] but did not do so. Defense

counsel also was entitled to challenge the persuasive value of

[the expert’s] opinion on [crime scene reconstruction] through

cross-examination, which he did. . . . [Q]uestions regarding the

validity or the credibility of an expert’s knowledge are matters

for the jury to decide [citation] but do not provide a basis for

excluding the expert’s testimony in the first instance and did not

do so in this case.” (People v. Nelson, supra, 1 Cal.5th at p. 537;

accord, People v. Rodriguez (2014) 58 Cal.4th 587, 638.)

In any event, even if the trial court erred in allowing

Delhauer to opine on the sequence and locations of the murders,

the error was harmless under any possible standard. (People v.

Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967)

386 U.S. 18, 24.)

Morales argues that Delhauer’s sequence testimony likely

influenced the jury’s finding of premeditation and deliberation,

because it imposed “reason, organization and order” on a

“frenzied and chaotic” crime scene. This argument gives

Delhauer’s sequencing testimony too much credit. Delhauer’s

conclusions about the sequence of the murders formed only a

small part of his testimony. Though Delhauer gave a brief

summary of his sequencing conclusions at the beginning of his

testimony, his testimony mainly focused on an analysis of where

and how each of the victims was killed. Moreover, as the trial

court itself noted, much of this testimony concerned matters

already independently established by evidence in the record.

Among other things, the trial evidence showed that Morales

used a step stool to sneak into the victims’ home and that he

attacked Mike in a state of undress, delivering the fatal wound

to Mike’s neck from behind, and in a manner that resulted in no

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defensive wounds. Other evidence also established the manner

of killing — the adult victims suffered multiple fatal stab

wounds to the neck or chest and Jasmine was drowned. (See

People v. Booker, supra, 51 Cal.4th at pp. 152, 173.) These were

the facts that bore most directly on whether Morales acted with

premeditation and deliberation. And even absent Delhauer’s

testimony, it was readily inferable that the victims were likely

killed sequentially, so it is unlikely that Delhauer’s opinion as

to the precise sequence of the murders had any effect on the

jury’s evaluation of that question. The jury did not need to know

the exact sequence of the murders to conclude that the victims

were killed one at a time, in a manner suggestive of

premeditation and deliberation. Finally, and in any event,

Delhauer’s testimony was not the only source of sequencing

information: Morales himself had told law enforcement officers

that the victims were killed in the very same sequence.

In sum, Delhauer’s sequencing testimony did not add

meaningfully to the picture already before the jury. Any error

in admitting the testimony was harmless beyond a reasonable

doubt. (See People v. Gomez (2018) 6 Cal.5th 243, 296 [finding

error admitting expert testimony harmless under both

Chapman and Watson].)5

5

At oral argument, defense counsel argued that Delhauer’s

sequencing testimony prejudiced him at the penalty phase as

well as the guilt phase. Specifically, counsel argued that

Delhauer’s sequencing testimony overshadowed the psychiatric

expert testimony presented at the penalty phase, which showed

that Morales had a severe learning disability, was not

malingering, and tended to react impulsively, instead of

methodically. Counsel argued that, absent Delhauer’s

sequencing testimony, the jury would have more strongly

weighed this psychiatric testimony as a “circumstance which

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3. Admission of Crime Scene and Autopsy Photographs

Morales argues that the trial court abused its discretion

and violated his constitutional rights to a fair trial and due

process when it admitted certain crime scene and autopsy

photographs of the victims. We find no error.

In a pretrial hearing, the trial court and the parties

discussed the admissibility of color photographs of the victims.

The trial judge first noted that the “primary concern has to be

probative value versus prejudicial effect.” He recognized that

the photographs might be gruesome, but he signaled his intent

to allow the People significant leeway to introduce photographs

given the “incredible complexity of this case.” Over the course

of the hearing, Morales challenged the admissibility of many

photographs, including pictures of the four victims’ faces from

the autopsy table, which the People intended to use for

identification purposes, though defense counsel offered to

stipulate to the identities; a series of photographs of Jasmine’s

body in the bathtub, with and without the large statue on top of

her; photographs of Jasmine’s vaginal and anal injuries;

photographs of Mike’s wounds, including severe injuries to his

extenuate[d] the gravity of the crime” under Penal Code section

190.3, factor (k).

Again assuming, for the sake of argument, that the trial

court erred in allowing Delhauer’s sequencing testimony, we are

not persuaded that Morales has established penalty-phase

prejudice. Delhauer’s sequencing conclusions were relatively

insignificant in the context of the case, and his testimony largely

duplicated other evidence, including Morales’s own report to

police about the order of the murders. We see no reasonable

possibility that exclusion of Delhauer’s sequencing testimony

would have altered the jury’s consideration of whether Morales’s

psychiatric evidence sufficiently extenuated the gravity of the

crime.

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neck; and photographs of Ana’s injuries. Defense counsel

objected to these photographs on a variety of grounds, including

cumulativeness and undue gruesomeness, and argued that some

of the injury photographs should be introduced in black and

white. The trial court ultimately admitted most of these

photographs, but also excluded several. The trial court also

allowed the photographs to be shown in color.

“Whether the trial court erred in admitting into evidence

the challenged photographs of the murder victims depends upon

two factors: (1) whether the photographs were relevant, and

(2) whether the trial court abused its discretion in determining

that the probative value of each photograph outweighed its

prejudicial effect.” (People v. Ramirez (2006) 39 Cal.4th 398,

453.) We review the trial court’s decision to admit the

photographs for abuse of discretion. (People v. Mendez (2019)

7 Cal.5th 680, 708.) “ ‘The court’s exercise of that discretion will

not be disturbed on appeal unless the probative value of the

photographs clearly is outweighed by their prejudicial effect.’ ”

(People v. Scheid (1997) 16 Cal.4th 1, 18.)

Morales does not argue that the admitted photographs

were irrelevant, nor could he do so successfully. “[T]he

photographs were highly relevant to show the manner in which

the victims were killed and the severity of their injuries,” as well

as to “clarif[y] the coroner’s testimony.” (People v. Ramirez,

supra, 39 Cal.4th at p. 453; accord, People v. Box (2000)

23 Cal.4th 1153, 1199.) For example, the autopsy photographs

provided detailed views of the victims’ injuries, including

photographs of the petechiae on Jasmine’s hands and feet and

the stab and slice wounds to various parts of Mike’s, Maritza’s,

and Ana’s bodies. The photographs also served to “illustrate and

corroborate the testimony given by [witnesses] regarding the

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circumstances of the crime” and discovery of the victims. (People

v. Scheid, supra, 16 Cal.4th at p. 18.) For example, the

photographs of Jasmine in the bathtub and Ana, Mike, and

Maritza laying prone in Ana’s bedroom displayed the state of the

bodies when they were discovered. And finally, the

identification photographs were also relevant to identify the

victims and provide context to the subsequent photographs of

each victim’s body. Contrary to Morales’s argument, the People

were not required to stipulate to the identity of the victims. We

have previously rejected the argument that “photographs are

irrelevant or inadmissible simply because they duplicate

testimony, depict uncontested facts, or trigger an offer to

stipulate.” (People v. Stitely (2005) 35 Cal.4th 514, 545; see also

People v. Pride, supra, 3 Cal.4th at p. 243 [holding prosecution

need not “accept antiseptic stipulations in lieu of photographic

evidence”].)

Morales argues instead that the trial court abused its

discretion in admitting photographs because they were overly

gruesome. We disagree: The trial court did not abuse its

discretion when it found that the probative value of each of the

admitted photographs outweighed its prejudicial effect, while

excluding other photographs for failure to pass this threshold.

(See Evid. Code, § 352.)

Many of the photographs are undoubtedly graphic and

disturbing, especially the photographs of the injuries Jasmine

suffered when assaulted. But “ ‘victim photographs and other

graphic items of evidence in murder cases always are

disturbing.’ ” (People v. Scheid, supra, 16 Cal.4th at p. 19.) A

trial court may admit photographs of victims even when the

photographs are “gruesome” if “the charged offenses were

gruesome” and the photographs “[do] no more than accurately

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portray the shocking nature of the crimes.” (People v. Ramirez,

supra, 39 Cal.4th at p. 454 [finding picture with victim’s

eyeballs removed not overly graphic]; see, e.g., People v. Allen

(1986) 42 Cal.3d 1222, 1257–1258 [describing autopsy and crime

scene photographs of victims as “not exceptionally gruesome” in

part because the victims’ bodies were not depicted “in a badly

decomposed condition [citation] or after they had been grossly

disfigured during autopsy”].) “The jury can, and must, be

shielded from depictions that sensationalize an alleged crime, or

are unnecessarily gruesome, but the jury cannot be shielded

from an accurate depiction of the charged crimes that does not

unnecessarily play upon the emotions of the jurors.” (Ramirez,

at p. 454.) Here, each of the challenged photographs was highly

relevant to the jury’s consideration of the issues, they were not

cumulative, and they did not unnecessarily play on the jury’s

emotions.

Nor did the trial court abuse its discretion in refusing the

defense’s request to publish the photographs in black and white

instead of color. As the trial court noted at the pretrial hearing,

color photographs better depict the “reality” of the scene and the

injuries to the victim. The court did not err when it refused to

“sanitiz[e] the crime scene by trying to disguise blood” through

use of black and white photography. (See People v. Mathis

(1965) 63 Cal.2d 416, 423 [“It is difficult for a reviewing court to

determine if black-and-white would be less inflammatory than

color pictures, but considering the subject matter it appears

unlikely that the difference would be significant. Since the

pictures unquestionably did have evidentiary value and since

the trial court thoughtfully weighed the alternatives before

ruling, we do not find an abuse of discretion in admitting the

photographs into evidence.”].)

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In sum, the trial court carefully weighed each

photograph’s probative value against its prejudicial impact,

which led it to exclude several photographs and admit others.

The trial court did not abuse its discretion in conducting this

inquiry. Morales’s Evidence Code challenge to the admission of

the photographs thus fails, and his constitutional challenge fails

for the same reasons. (See, e.g., People v. Prince, supra,

40 Cal.4th at p. 1230.)

B. Penalty Phase Issues

1. Admission of Victim Impact Evidence

Morales argues that the victim impact testimony of

surviving family members was “so voluminous, inflammatory

and unduly prejudicial” that it violated his rights to due process

and a fair trial under the Fifth and Fourteenth Amendments to

the United States Constitution, and contravened the Eighth

Amendment’s mandate that the death penalty be rationally and

reliably imposed. Morales then argues that the trial court

“compounded” this error by declining to give Morales’s proposed

instruction on evaluating victim impact evidence — a modified

version of a supplement to CALJIC No. 8.85. He is wrong on

both fronts.

a. Background

As noted above, at the penalty phase of trial, several of the

victims’ surviving relatives testified. Raquel Trejo (Maritza’s

daughter, Mike’s stepdaughter, and Jasmine’s sister) testified

first. Raquel detailed the day she found the house in disarray

and learned that her family had been killed; she was in shock

and disbelief until she finally realized they were really dead.

She then described her relationship with each of the victims.

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She loved Jasmine, her “baby girl,” and she spent a lot of time

with her. Raquel, who had immigrated to the United States a

few years earlier, said Jasmine was the only reason Raquel did

not return to El Salvador. Jasmine was very happy, smart, and

active, and she used to emulate Raquel — a quality Raquel now

missed. Raquel discussed several pictures of Jasmine, as well

as one of Jasmine’s drawings, on which Jasmine had written “I

love my family. My mom and dad are the best in the world. And

my sister she is the best in the world, to [sic].”

Raquel was also very close to her mother, whom she

considered a friend. Since moving to the United States, Raquel

had enjoyed her time with her mother, whom she described as

always happy and very hardworking. She lamented no longer

having her mother to confide in. As for Mike, Raquel testified

he treated her like she was his daughter and he was always

proud of her. Now she no longer had his support or her family

around to celebrate with her. And Raquel described Ana as very

sweet, someone who always made sure everyone in the family

was okay. Raquel then testified that she participated in therapy

for two years before enrolling in college, and that recently she

had restarted therapy and was taking medicine to help her

concentration. She testified she sometimes felt guilty for not

being present when the murders occurred. Lastly, she identified

Jasmine in a one-minute video clip that showed Jasmine playing

with a friend. Raquel indicated that the clip reflected Jasmine’s

happy demeanor.

The next witness was Kenelly Zeledon, Maritza’s sister-in-

law. Zeledon remembered the nightmare of finding the victims

in the home. She described Mike as a lovely, outgoing, and

happy man; Maritza as outgoing, always laughing and joking,

and an outstanding salesperson; and Ana as a very caring

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person. Jasmine was very dear to Zeledon; Jasmine used to play

with Zeledon’s son. Since the murders, Zeledon would become

anxious at night, always checking the windows and doors to

make sure they were locked. She could not go to the bathroom

without checking the bathtub, and she constantly was reminded

of Jasmine when she dealt with sexual abuse cases through her

job as a social worker. She would sometimes cry in her car at

stoplights and lose track of time. Because Maritza used to help

Zeledon’s husband at one of his two stores, after Maritza’s death

Zeledon’s husband had to close one of the stores. For Zeledon,

Christmas felt empty without Mike, Maritza, Ana, and Jasmine.

She also identified a photo of Mike, Jasmine, and Maritza at an

amusement park, and one of Maritza and Jasmine at Zeledon’s

husband’s store.

Miguel Rodriguez, Sr., also testified. He was Mike’s father

and Ana’s son. When he found out about the murders, his life

turned upside down. Ana was Rodriguez’s best friend; he was

her only son, so they were very close. He identified a photo of

Ana and himself on Mother’s Day. He was also very close to his

son Mike, whom he described as his best friend. He got along

with Maritza, who took care of the family, and he really loved

Jasmine, whom he described as very intelligent. After their

deaths, everything changed for Rodriguez; he lost his job, he

could no longer sleep, and he was nervous. Rodriguez’s wife, Luz

Ruiz, testified that she saw the family at least three times per

week and had relied on Mike when they needed things. She

described Jasmine as a happy child. She confirmed that the

murders had significantly affected Rodriguez, saying he was no

longer the same man and that he was now very depressed.

Mike’s younger sister, Olga Lizzette Ruiz, testified that

Mike was her mentor; he was very trusting and friendly, a great

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brother and son, and a dedicated father. She and Mike had

always talked about throwing a joint birthday party when they

both turned 40, but now the party would never happen. She said

Mike treated Morales with open arms. She described Maritza

as very giving and loving; they drank coffee together almost

every morning. Ana had helped raise Olga and Mike; she was

very nurturing. At the time she was killed, Ana could no longer

take care of herself. Olga described Jasmine as her heart; they

spoke every day. Jasmine was intelligent and wanted to become

a veterinarian or teacher. When Olga found out about the

murders, she was in total disbelief. She was asked to identify

the bodies at the morgue, and it was the most horrific experience

of her life. She was still waiting for someone to tell her the

murders were a nightmare, but she knew the victims would

never return and she missed them. She had tried therapy

because she was very angry. For her, the worst part was not

knowing how much her family had suffered or why someone

would torture a young girl or kill an 81-year-old woman. She

felt helpless. She identified a photo of Mike and Jasmine with

their dog, as well as the family’s funeral invitation, which

showed a few pictures of the family but did not have much text.

b. Discussion

Morales argues that the victim impact evidence in this

case was so voluminous and inflammatory that it invited the

jury to abandon its role as a neutral arbiter and instead to

impose a penalty of death based on its “passionate, irrational,

and purely subjective response to the sorrow of the surviving

Ruiz family members.” Morales’s argument does not focus on

any specific testimony or pieces of evidence; his argument

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instead is that admission of the victim impact evidence, taken

as a whole, violated his constitutional rights.

Victim impact evidence is generally relevant and

admissible as a circumstance of the crime under Penal Code

section 190.3, factor (a), “so long as it is not ‘so unduly

prejudicial’ that it renders the trial ‘fundamentally unfair.’ ”

(People v. Russell (2010) 50 Cal.4th 1228, 1264, quoting Payne

v. Tennessee (1991) 501 U.S. 808, 825; accord, People v. Lewis

and Oliver (2006) 39 Cal.4th 970, 1056.) This court has

consistently upheld as constitutional “[a]dmission of testimony

presented by a few close friends or relatives of each victim, as

well as images of the victim while he or she was alive.” (Russell,

at p. 1265.) We have also upheld the introduction of videotapes,

though we have cautioned trial courts not to admit videotapes

that can overly rouse the jurors’ emotions. (See People v. Bell

(2019) 7 Cal.5th 70, 127–128.)

The victim impact evidence in this case falls within

constitutional bounds. The five victim impact witnesses

testified “ ‘about their relationship with’ the victims, ‘how they

learned about’ the victims’ deaths, and how the murders

‘affected their lives.’ ” (People v. Mendez, supra, 7 Cal.5th at

p. 712.) Their testimony “ ‘concerned the kinds of loss that loved

ones commonly express in capital cases,’ ” such as “recounting

basic facts about [the victims],” speaking “of their love of [the

victims], special moments they shared with [them], their

feelings upon learning of [their] death[s] . . . and how the

manner in which [the victims] died affected them and various

family members.” (People v. Jones (2012) 54 Cal.4th 1, 70; see

also People v. Dykes (2009) 46 Cal.4th 731, 783 [finding

permissible testimony “concerning the victim’s character”].)

And “[t]he details of that testimony were not materially more

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emotionally inflammatory than that approved by our

precedents.” (Mendez, at p. 712; see Dykes, at p. 782.)

Nor was the testimony excessive. The prosecution called

five witnesses to testify about four victims. (Cf. People v.

Mendez, supra, 7 Cal.5th at p. 712 [“[P]ermitting victim impact

testimony from six witnesses regarding two victims — that is,

three per victim — is comparable to what we have permitted in

other cases.”].) And each witness’s testimony was relatively

brief, with the testimony of all five witnesses spanning just 52

total pages of transcript. (See People v. Dykes, supra, 46 Cal.4th

at p. 782 [testimony not “too extensive” where it spanned 32

pages of transcript for a single victim].)

Admission of the eight photographs depicting the four

victims likewise was constitutional. A set of eight photographs

depicting everyday events in the lives of the victims is not

excessive. (See People v. Mendez, supra, 7 Cal.5th at p. 712

[“Admitting some 13 photos of [the first victim] and fewer of [the

second victim] likewise was not excessive under our cases.”];

People v. Jones, supra, 54 Cal.4th at pp. 69–70 [32 photographs

for single victim not improper].) The photographs here “of

ordinary family events were factual, relevant, and not unduly

emotional or sentimental.” (Jones, at p. 71.) The same is true

of Jasmine’s drawing, in which she said she loved her family and

her sister. The drawing provided relevant information about the

relationship between Jasmine and Raquel and did not invite the

jury to rule based on emotion. (Cf. Mendez, at pp. 713–714

[finding victim’s poem bemoaning gang violence admissible].)

We have also previously allowed trial courts to admit pictures of

the victims as children where the victims were still young when

they were killed. (See id., at p. 712, fn. 3.) Here, the

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photographs of Jasmine showed her close in age to her age at

death and were not improper.

Finally, we see no error in permitting the prosecution to

introduce the minute-long video clip of Jasmine playing with a

friend. We have previously found relatively short home videos

to be admissible victim impact evidence. In People v. Dykes,

supra, 46 Cal.4th 731, for example, we upheld the admissibility

of an eight-minute videotape (without audio) that showed the

child victim preparing for and taking a trip to Disneyland with

his family. (Id. at pp. 784–785.) We found that “the material,

which merely depicts ordinary activities and interactions

between [the victim] and his family, was relevant to humanize

the victim and provide some sense of the loss suffered by his

family and society.” (Id. at p. 785.) And we noted that “[t]he

videotape [was] an awkwardly shot ‘home movie.’ ” (Ibid.) It

was not “a memorial, tribute, or eulogy”; it did not “contain

staged or contrived elements, music, visual techniques designed

to generate emotion, or background narration” or “convey any

sense of outrage or call for vengeance or sympathy,” and it

“last[ed] only eight minutes and [was] entirely devoid of

drama” — it was merely “factual” and depicted “real events.”

(Ibid.) For these reasons, and because the evidence

“supplemented but did not duplicate” the witness’s testimony,

we held it admissible. (Ibid.; see also People v. Bell, supra,

7 Cal.5th at p. 128 [upholding admission of four-minute

wedding video that resembled a home movie and was not

enhanced in any way because it depicted “a real event in the

victim’s life, shortly before his murder”]; People v. Mendez,

supra, 7 Cal.5th at p. 713 [upholding admission of portions of

home video showing young victim’s sixth grade graduation].)

Like the video in People v. Dykes, the video of Jasmine was a

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short home movie that depicted real life events. It was not

enhanced in any way, and it did not invite vengeance or undue

sympathy. It simply “humanize[d]” Jasmine in a way that

supplemented the testimony of the witnesses. (Dykes, at p. 785.)

In sum, the admission of the victim impact evidence did not

violate Morales’s constitutional rights.

Morales also argues the trial court erred by failing to give

his proposed victim impact instruction. In particular, after the

conclusion of penalty phase testimony, the defense requested

the trial court instruct the jury with a modified version of a

supplemental instruction to CALJIC No. 8.85. The unmodified

instruction states: “Evidence has been introduced for the

purpose of showing the specific harm caused by the defendant’s

crime. Such evidence, if believed, was not received and may not

be considered by you to divert your attention from your proper

role of deciding whether defendant should live or die. You must

face this obligation soberly and rationally, and you may not

impose the ultimate sanction as a result of an irrational, purely

subjective response to emotional evidence and argument. On

the other hand, evidence and argument on emotional though

relevant subjects may provide legitimate reasons to sway the

jury to show mercy.” Defense counsel requested the court give

this instruction but delete the final sentence. The court

declined, explaining the final sentence was necessary to inform

the jury that it could consider evidence on emotional subjects in

making its final decision. As a result, defense counsel withdrew

the proposal, and the instruction was not given. The trial court

did, however, give CALJIC No. 8.85, which lists the factors the

jury must consider in determining whether it should impose a

penalty of death, and CALJIC No. 8.84.1, which tells the jury,

in relevant part: “You must neither be influenced by bias nor

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prejudice against the defendant, nor swayed by public opinion

or public feelings. Both the People and the defendant have a

right to expect . . . that you will consider all of the evidence,

follow the law, exercise your discretion conscientiously, and

reach a just verdict.”

Morales argues it was error to refuse to give the modified

version of the supplemental instruction to CALJIC No. 8.85. We

have previously rejected this same argument about this exact

modified instruction. (See People v. Mora and Rangel (2018)

5 Cal.5th 442, 506–507, fn. 22.) We have also repeatedly

rejected similar arguments concerning proposed instructions

similar to the full, unmodified supplemental instruction

proposed in this case. (People v. Thomas (2012) 53 Cal.4th 771,

825 [collecting cases].) We have explained that the instruction

is duplicative of CALJIC No. 8.84.1 and thus “ ‘would not have

provided the jury with any information it had not otherwise

learned.’ ” (Thomas, at p. 825, quoting People v. Ochoa (2001)

26 Cal.4th 398, 455.) Further, we have noted the instruction is

both confusing and “misleading to the extent it indicates that

emotions may play no part in a juror’s decision to opt for the

death penalty.” (People v. Zamudio (2008) 43 Cal.4th 327, 368,

citing People v. Pollock (2004) 32 Cal.4th 1153, 1195; see

Zamudio, at pp. 368–369; People v. Harris (2005) 37 Cal.4th 310,

359 [finding proposed instruction “confusing” and “unclear as to

whose emotional reaction it directed the jurors to consider with

caution — that of the victim’s family or the jurors’ own”].) As

we have previously said, “[a]lthough jurors must never be

influenced by passion or prejudice, at the penalty phase, they

‘may properly consider in aggravation, as a circumstance of the

crime, the impact of a capital defendant’s crimes on the victim’s

family, and in so doing [they] may exercise sympathy for the

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defendant’s murder victims and . . . their bereaved family

members.’ ” (Zamudio, at pp. 368–369, quoting Pollock, at

p. 1195, italics omitted, second brackets in original.)

This reasoning applies with equal if not greater force to

Morales’s request to instruct the jury with a modified version of

the instruction that omitted its last sentence. Deleting the

instruction’s final sentence removes its only suggestion that

jurors can consider emotions in reaching their decision. Without

that sentence, the instruction becomes even more misleading to

the extent it more strongly suggests that “emotions may play no

part in a juror’s decision to opt for the death penalty.” (People

v. Zamudio, supra, 43 Cal.4th at p. 368.) Because the proposed

instruction would have been both duplicative and misleading,

the trial court properly refused to give it.

2. Instruction with CALJIC No. 8.88

The court instructed the jury with CALJIC No. 8.88,

subject to minor modifications requested by the defense and not

at issue here. That instruction guides jurors in using

aggravating and mitigating circumstances to arrive at a

verdict.6 Morales objects to several aspects of the instruction.

6

In relevant part, the jury was instructed with CALJIC

No. 8.88 as follows:

“It is now your duty to determine which of the two

penalties, death or imprisonment in the state prison for life

without possibility of parole, shall be imposed on . . . defendant.

“After having heard all of the evidence, and after having

heard and considered the arguments of counsel, you shall

consider, take into account and be guided by the applicable

factors of aggravating and mitigating circumstances upon which

you have been instructed.

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As Morales acknowledges, we have previously rejected each of

the arguments he now raises. He offers no persuasive reason

for us to reconsider our prior cases.

First, Morales takes issue with the portion of the

instruction that provides, “To return a judgment of death, each

of you must be persuaded that the aggravating circumstances

are so substantial in comparison with the mitigating

circumstances that it warrants death instead of life without

parole.” (CALJIC No. 8.88.) He argues that this direction would

permit a death sentence even if the jury determined that

mitigating circumstances outweighed the aggravating

circumstances. But as we have previously explained, the

instruction, taken as a whole, “clearly stated that the death

penalty could be imposed only if the jury found that the

aggravating circumstances outweighed mitigating. There was

no need to additionally advise the jury of the converse (i.e., that

if mitigating circumstances outweighed aggravating, then life

“. . . .

“The weighing of aggravating and mitigating

circumstances does not mean a mere mechanical counting of

factors on each side of an imaginary scale, or the arbitrary

assignment of weights to any of them. You are free to assign

whatever moral or sympathetic value you deem appropriate to

each and all of the various factors you are permitted to consider.

In weighing the various circumstances you determine under the

relevant evidence which penalty is justified and appropriate by

considering the totality of the aggravating circumstances with

the totality of the mitigating circumstances. To return a

judgment of death, each of you must be persuaded that the

aggravating circumstances are so substantial in comparison

with the mitigating circumstances that it warrants death

instead of life without parole.”

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without parole was the appropriate penalty).” (People v. Duncan

(1991) 53 Cal.3d 955, 978; see People v. Landry (2016) 2 Cal.5th

52, 122; People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th

at p. 457; People v. Linton (2013) 56 Cal.4th 1146, 1211; People

v. Whalen (2013) 56 Cal.4th 1, 89.)

Second, Morales argues the instruction is incomplete

because it fails to advise the jurors that they could opt for a life

sentence even in the absence of mitigating evidence. (See People

v. Duncan, supra, 53 Cal.3d at p. 979 [“The jury may decide,

even in the absence of mitigating evidence, that the aggravating

evidence is not comparatively substantial enough to warrant

death.”].) We have repeatedly rejected this claim, explaining the

instruction already adequately conveys the point. (E.g., People

v. Anderson (2018) 5 Cal.5th 372, 424–425; People v. Bryant,

Smith and Wheeler, supra, 60 Cal.4th at p. 457; People v. Linton,

supra, 56 Cal.4th at p. 1211.)

Third, Morales argues that the use of “so substantial” to

describe the necessary relationship between aggravation and

mitigation is unconstitutionally vague. This language did not

render the instruction vague. (People v. Landry, supra,

2 Cal.5th at p. 123; People v. Thompson (2016) 1 Cal.5th 1043,

1128; People v. Linton, supra, 56 Cal.4th at p. 1211; People v.

Whalen, supra, 56 Cal.4th at p. 89.)

Finally, Morales complains that the jury was not told to

determine whether death was the appropriate punishment, but

rather to decide whether death was “warrant[ed].” This is a

distinction without a difference. The entirety of the instruction

left no doubt that the jury “could return a death verdict only if

aggravating circumstances predominated and death is the

appropriate verdict.” (People v. Breaux (1991) 1 Cal.4th 281,

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316.) The use of “warrants” in place of “appropriate” does not

undermine this message. (People v. Landry, supra, 2 Cal.5th at

p. 122; People v. Linton, supra, 56 Cal.4th at p. 1211; Breaux, at

p. 316.) To the contrary, “ ‘[b]y advising that a death verdict

should be returned only if aggravation is “so substantial in

comparison with” mitigation that death is “warranted,” the

instruction clearly admonishes the jury to determine whether

the balance of aggravation and mitigation makes death the

appropriate penalty.’ ” (People v. Perry (2006) 38 Cal.4th 302,

320, quoting People v. Arias (1996) 13 Cal.4th 92, 171.)

3. Challenges to California’s Death Penalty Scheme

Morales raises a series of challenges to the

constitutionality of California’s death penalty. We have

considered and rejected each before. Because Morales offers no

compelling arguments in favor of reconsidering these rulings,

we again reject these arguments.

California’s special circumstances (see Pen. Code, § 190.2)

supply rational and objective criteria that adequately narrow

the class of murderers eligible for the death penalty. (People v.

Brooks (2017) 3 Cal.5th 1, 114–115; People v. Delgado (2017)

2 Cal.5th 544, 591; People v. Winbush (2017) 2 Cal.5th 402, 488.)

Penal Code section 190.3, factor (a), which permits the

jury to consider the circumstances of the crime in deciding the

appropriate punishment, does not license the arbitrary and

capricious imposition of the death penalty. (Tuilaepa v.

California (1994) 512 U.S. 967, 975–976; People v. Henriquez

(2017) 4 Cal.5th 1, 45; People v. Winbush, supra, 2 Cal.5th at

p. 489; People v. Simon (2016) 1 Cal.5th 98, 149.)

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The death penalty statute is not unconstitutional for not

requiring “findings beyond a reasonable doubt that an

aggravating circumstance (other than Pen. Code, § 190.3, factor

(b) or factor (c) evidence) has been proved, that the aggravating

factors outweighed the mitigating factors, or that death is the

appropriate sentence.” (People v. Rangel (2016) 62 Cal.4th 1192,

1235.) Nor does the federal Constitution require the jury to

agree unanimously on any particular aggravating factor.

(People v. Henriquez, supra, 4 Cal.5th at p. 45; People v.

Winbush, supra, 2 Cal.5th at p. 489.) Apprendi v. New Jersey

(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, and

their progeny do not require reconsideration of these

conclusions. (Henriquez, at p. 45; Winbush, at p. 489; People v.

Delgado, supra, 2 Cal.5th at p. 591; People v. Simon, supra, 1

Cal.5th at p. 149.)

The failure to impose a specific burden of proof on the

ultimate question of life or death is not unconstitutional.

(People v. Henriquez, supra, 4 Cal.5th at p. 45; People v. Parker

(2017) 2 Cal.5th 1184, 1232; People v. Winbush, supra, 2 Cal.5th

at pp. 489–490.)

The federal Constitution does not require that the penalty

jury issue written findings. (People v. Henriquez, supra,

4 Cal.5th at p. 46; People v. Winbush, supra, 2 Cal.5th at p. 490;

People v. Thompson, supra, 1 Cal.5th at p. 1130.) Nor does it

require intercase proportionality review. (Henriquez, at p. 46;

Winbush, at p. 490; Thompson, at p. 1130; People v. Simon,

supra, 1 Cal.5th at p. 149.)

The federal Constitution does not prohibit the use of prior

unadjudicated criminal activity as an aggravating factor, nor

does it require that such activity be found unanimously beyond

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a reasonable doubt. (People v. Brooks, supra, 3 Cal.5th at p. 115;

People v. Thompson, supra, 1 Cal.5th at p. 1130; People v.

Simon, supra, 1 Cal.5th at p. 150.) Neither Apprendi v. New

Jersey, supra, 530 U.S. 466, nor Ring v. Arizona, supra, 536 U.S.

584, requires reappraisal of that conclusion. (People v. Jones

(2017) 3 Cal.5th 583, 619.)

The use of the adjectives “extreme” and “substantial” in

Penal Code section 190.3’s list of mitigating factors does not

prevent the jury from giving full consideration to a defendant’s

mitigating evidence. (People v. Brooks, supra, 3 Cal.5th at

p. 115; People v. Landry, supra, 2 Cal.5th at p. 122; People v.

Simon, supra, 1 Cal.5th at p. 150.)

The jury need not be instructed that potential mitigating

factors may be considered only as mitigation and their absence

may not be treated as a factor in aggravation. (People v.

Winbush, supra, 2 Cal.5th at p. 490; People v. Contreras (2013)

58 Cal.4th 123, 173.)

The equal protection clause does not require California to

include in its capital sentencing scheme every procedural

protection provided to noncapital defendants. The two groups

are not similarly situated. (People v. Henriquez, supra, 4 Cal.5th

at p. 45; People v. Winbush, supra, 2 Cal.5th at p. 490; People v.

Parker, supra, 2 Cal.5th at p. 1234; People v. Williams (2013)

58 Cal.4th 197, 295.)

Morales contends California’s regular use of capital

punishment violates international norms of human decency and

thus the Eighth and Fourteenth Amendments to the United

States Constitution. But “ ‘California does not employ capital

punishment in such a manner. The death penalty is available

only for the crime of first degree murder, and only when a special

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circumstance is found true; furthermore, administration of the

penalty is governed by constitutional and statutory provisions

different from those applying to “regular punishment” for

felonies. (E.g., Cal. Const., art. VI, § 11; [Pen. Code,] §§ 190.1–

190.9, 1239, subd. (b).)’ ” (People v. Trinh (2014) 59 Cal.4th 216,

255, quoting People v. Demetrulias (2006) 39 Cal.4th 1, 43–44;

see People v. Winbush, supra, 2 Cal.5th at p. 490.)

Finally, Morales argues these individual defects must be

considered for their cumulative impact, rather than in isolation.

He has identified no defects. Moreover, even when considered

in combination, the aspects of California’s scheme Morales

highlights do not persuade us that California imposes capital

punishment in a manner that violates the United States

Constitution.

III. DISPOSITION

We affirm the judgment.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

57

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Morales

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S136800

Date Filed: August 10, 2020

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Michael A. Cowell

__________________________________________________________________________________

Counsel:

Diane E. Berley, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Assistant Attorney General,

Keith H. Borjon, Joseph P. Lee and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Diane E. Berley

Attorney at Law

1440 Beaumont Avenue, Sutie A2-307

Beaumont, CA 92223

(818) 943-6457

Nima Razfar

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6188