People v. Gonzalez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK CHRISTOPHER GONZALEZ,

Defendant and Appellant.

S163643

Los Angeles County Superior Court

NA071779

December 2, 2021

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Kruger, and Jenkins concurred.

PEOPLE v. GONZALEZ

S163643

Opinion of the Court by Groban, J.

A jury found defendant Frank Christopher Gonzalez

guilty of first degree murder and attempted second degree

robbery. (See Pen. Code, § 187, subd. (a), former §§ 189, 211,

664.)1 The jury also found true a robbery-murder special-

circumstance allegation and an allegation that defendant

personally and intentionally discharged a firearm in committing

the murder. (Former §§ 190.2, subd. (a)(17), 12022.53, subds.

(b), (c), (d).) At the penalty phase, the jury returned a death

verdict, and the trial court entered a judgment of death. This

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

subd. (b).) We affirm the judgment.

I. BACKGROUND

A. Guilt Phase

1. The shooting and initial investigation

At around 6:00 a.m. on March 28, 2006, Genaro Huizar

arrived at his home on Eucalyptus Avenue in Long Beach. After

parking his car, he observed two men on bicycles ride past him.

One of the bicycles looked like a “10-speed”; the other bike was

smaller. Huizar continued walking and entered his home.

Moments later he heard between three and five gunshots.

1

Unless otherwise noted, all further statutory citations are

to the Penal Code.

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At around 5:45 a.m. that same day, two men were

delivering newspapers on Eucalyptus Avenue when they came

upon a woman lying motionless on the ground lying in front of a

car with its trunk open. They attempted to perform CPR on the

woman, later identified as Los Angeles County Sheriff’s

Department Deputy Maria Rosa, and called 911.

Officer Rosa lived in a house on Eucalyptus Avenue with

her partner, Los Angeles County Sheriff’s Department Detective

Jenny Martin, and Martin’s nephew. On the morning of the

shooting, Martin was awakened by her nephew, who told her

Rosa was “on the floor outside.” Martin saw Rosa lying on the

ground outside the house and called 911.

Long Beach Police Department Officer Robert Davenport

responded to the 911 calls. When Davenport arrived at the

scene he saw a red BMX-style bicycle near Rosa’s body, which

appeared to have a gunshot wound. The body was lying in a

driveway near a car with its trunk open. Davenport looked

inside the trunk and saw several items including a gun, boots

and a purse. The purse was partially open.

Long Beach Police Department Detectives Patrick O’Dowd

and Bryan McMahon inspected the trunk, which contained a

black gym bag with a nine-millimeter Heckler and Koch

handgun next to it, along with a purse and a wallet. The keys

to the car were in the keyhole of the trunk. They also found

Rosa’s police badge, which was closed, and a firearm holster.

Detective McMahon testified that the gun had a live round

jammed into it that obstructed the chamber. He believed that

the gun was jammed due to someone having tried to get a round

into the chamber. Los Angeles County Sheriff’s Department

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Firearms Identification Expert Edmund Anderson agreed that

the gun had malfunctioned, jammed, and failed to fire.

Los Angeles County Medical Examiner Paul Gliniecki

conducted an autopsy the day after the murder. He identified

two gunshot wounds, one to Rosa’s upper right shoulder and a

fatal wound to her left side abdomen. Both bullets were .22-

caliber munitions. Gliniecki concluded that Rosa had died from

internal bleeding caused by the gunshots.

Long Beach Police Department Detective David Rios

secured surveillance video from a Bank of America located near

the shooting and reviewed footage that had been captured

between 4:00 and 7:00 a.m. on the day of the murder. The video

showed two men riding on bicycles between 5:25 and 5:30 a.m.

Rios generated still images of the two men, which he turned over

to investigating officers. Detective O’Dowd used the images in

a flier offering a reward for information about the suspects.

2. The DNA evidence

Kari Yoshida, a criminalist for the Los Angeles County

Sheriff’s Department, was able to generate a DNA profile from

samples obtained from the handlebar of the bicycle found at the

scene of the crime. The profile was entered into the “Combined

DNA Index System (CODIS), a nationwide database that

enables law enforcement to search DNA profiles collected from

federal, state, and local collection programs.” (People v. Buza

(2018) 4 Cal.5th 658, 666.)

In July of 2006, the California Department of Justice

informed personnel investigating Rosa’s murder that Gonzalez

was a potential match. Yoshida’s colleague, Juli Watkins,

obtained reference samples from Gonzalez and generated a DNA

profile. She then compared his profile to the profile Yoshida had

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generated from the bicycle and concluded Gonzalez was a

possible contributor.

At trial, Watkins testified about her and Yoshida’s DNA

analysis. She further testified that Gonzalez could not be ruled

out as a possible contributor to the sample found on the bike.

Using a conservative estimate, she testified there was a one in

one billion chance that a random person would share the same

DNA typing with the sample found on the handlebar.

3. Undercover operation targeting Gonzalez and Justin

Flint

Based on the DNA evidence and information obtained by

confidential informants, law enforcement personnel began to

focus their investigation on Gonzalez and a man named Justin

Flint. Detective O’Dowd aided the Los Angeles County Sheriff’s

Department in conducting an undercover operation involving

the two suspects, who were both incarcerated on charges

unrelated to Rosa’s shooting. As part of the operation, a bus

outfitted with recording devices picked up Gonzalez and Flint at

their respective prisons along with two groups of undercover

officers posing as inmates, and then transported them to the Los

Angeles County jail. Once the bus arrived at the county jail,

Gonzalez and Flint were initially placed in separate cells that

were also outfitted with recording devices. Undercover officers

rotated in and out of each cell to create the impression that they

were being processed. Eventually, Gonzalez and Flint were

placed in the same cell.

An undercover agent that participated in the operation

testified that when Gonzalez entered the bus and saw Flint, he

became “excited in a bad way” and “almost lost control of his

emotions.” Another agent who was on the bus heard Gonzalez

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talking to Flint about why they were being transported to Los

Angeles County jail and whether it was related to the “bicycle

shit.” In the holding cell, Gonzalez speculated that the arrest

might be related to a crime involving a car, which one of the

undercover detectives understood to mean a “carjacking.”

Gonzalez also speculated whether the police could “squeeze”

Flint into talking about the crimes.

Detective Javier Clift initiated a conversation with

Gonzalez and suggested that he must have been detained

because evidence was left at the crime scene. Gonzalez

responded, “No, I cleaned and wiped and everything. It’s just

going to be he say she say.” When asked about the murder

weapon, Gonzalez told Clift the gun he used for the crime was

“swimmin” (sic) and then inquired whether getting rid of the

evidence was “a plus.” Gonzalez told Clift there were no

footprints left at the scene because he had been on concrete.

Gonzalez then spoke of another incident, which Clift described

as a “carjacking.” Gonzalez claimed he had left no evidence

behind that would connect him to the stolen car. Gonzalez also

described himself as a “cappa,” which Clift understood to refer

to a person who had committed a crime that would subject him

to capital punishment. Gonzalez mentioned disfiguring his face

so that he could not be identified in a lineup, and having “special

privileges” among the inmates, which Clift understood to be a

reference to having committed a very serious crime such as

killing a police officer.

Detective Miguel Beltran also spoke to Gonzalez. When

Beltran asked about a murder that Gonzalez had supposedly

committed, Gonzalez said “it was a hooda,” which Beltran

interpreted to be the slang for a police officer, and described the

victim as a female. Gonzalez also told Beltran about a bike that

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he had left at the scene and discussed creating an alibi to make

the police believe the bike did not belong to him.

Gonzalez told another undercover agent, Detective

Noyola, that he shot a female police officer after she had showed

him her badge. Noyola also testified that when he was in the

holding cell, Gonzalez told Flint not to talk to anyone “because

[they were] going to ride this all the way out.” While in the

holding cell with Noyola, Flint said that if the “bitch” had “given

up her wallet she wouldn’t have been killed,” but Gonzalez “bet

[the police] d[id]n’t have anything about [the] case.”

After Gonzalez and Flint were processed and provided

notice of the charges against them, including murder, they were

put into a holding cell with Detective Manuel Avina. Avina

talked to Gonzalez about the worst sentence for Flint, to which

Gonzalez responded “life.” Gonzalez and Flint wondered if

someone was snitching and if they had to kill any witnesses who

might testify. Gonzalez wanted to “keep Justin Flint limited in

his statements” and told him to “shut up” about the murder.

They strategized about how to behave during the investigation.

4. Investigation of Jessica Rowan and Celina Gonzalez

In addition to conducting the undercover operation, law

enforcement obtained an order authorizing a wiretap on six

different phone lines that were affiliated with Gonzalez and his

acquaintances. Pursuant to those wiretaps, police intercepted

conversations between Jessica Rowan, who had been Gonzalez’s

girlfriend for 12 years and was the mother of his two children,

and Gonzalez’s sister, Celina Gonzalez. During a phone call,

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Rowan and Celina2 discussed fabricating an alibi for Gonzalez.

They agreed that they would tell police they had been at a

barbeque with Gonzalez the night before the shooting and that

Gonzalez then slept at Rowan’s house and stayed with her the

following morning.

After having intercepted those communications,

Detectives McMahon and O’Dowd interviewed Rowan, who told

them she was at a barbeque with Gonzalez the night before the

shooting and was in bed with him on the morning of the

shooting. While in Rowan’s presence, O’Dowd acted as if he had

received a call on his cell phone and discussed “divers going into

the ocean.” After getting off the phone, O’Dowd told his partner

“it was in pieces,” but did not specify what object he was talking

about. Police also interviewed Celina, who likewise passed

along the alibi that she and Rowan had discussed during their

call.

After her police interview, Rowan visited Gonzalez in jail

and held up a note for him to read explaining the alibi she and

Celina had created. The note also stated that divers were

searching for a gun. When Gonzalez read the note, he

exclaimed, “Oh fuck.” During subsequent phone conversations,

Gonzalez told Rowan he committed the crime with the “White

boy” he had purchased a computer from, whom Rowan identified

as Flint. Gonzalez also directed Rowan to talk to his friend

“Psycho” and tell him to deal with any potential snitches.

Rowan understood this to mean that Psycho should kill any

potential snitch. As directed, Rowan called Psycho and told him,

2

Because Celina Gonzalez has the same last name as the

defendant, for purposes of clarity and simplicity we refer to her

by her first name.

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“If anything happens, you know what to do.” Psycho responded

“OK,” and told Rowan not to talk about anything related to the

murder over the phone.

Police eventually arrested Rowan and Celina and charged

them with obstruction of justice for having fabricated a false

alibi. Rowan and Celina both pleaded guilty to conspiracy to

obstruct justice and their pleas included an agreement to testify

against Gonzalez. Though their testimony would be considered

in determining their sentence, the plea did not promise leniency

in exchange for testifying.

At trial, Rowan testified that around the time of the

shooting, Gonzalez told her he had “done something” in Long

Beach and had to leave the city. He explained that he and a

friend had tried to rob a woman to get money for drugs and a

gun went off. He had demanded the victim’s money and tried to

grab her purse, but a struggle ensued. During the struggle, the

woman pulled out a gun and a police badge and a gun

discharged. He then ran from the scene.

Rowan further testified that a day or two after the

shooting, she went to Celina’s house with Gonzalez. Rowan

stated that Gonzalez was acting nervous and strange and had

said that he wanted to go to Long Beach immediately. Gonzalez

then retrieved a newspaper and showed them a story about the

shooting of Rosa, which included her picture, and stated, “I told

you I had done something in Long Beach.” A few days later

Gonzalez asked to borrow Rowan’s car, telling her he was

driving to the beach to get rid of something. When he returned,

Gonzalez told her he had gotten rid of the gun, explaining that

he had sanded it down and cut it into pieces.

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At some point after Gonzalez was taken into custody,

Celina showed Rowan an article on the internet about the

murder that included photographs of two men riding bicycles.

She and Celina were worried that people would be able to

identify Gonzalez in the picture from his tattoos.

Rowan also acknowledged during her testimony that she

had been charged with obstruction of justice and that she and

Celina had fabricated an alibi that they passed along to the

police. She explained that her phone conversations with Celina

and her jailhouse conversations with Gonzalez had been

surreptitiously recorded. She also acknowledged that she had

cooperated with law enforcement, signed a proffered statement

attesting to statements Gonzalez had made about the crime and

entered into an agreement to tell the truth at trial.

Celina provided testimony that was corroborative of much

of Rowan’s testimony. Like Rowan, Celina acknowledged she

had been charged with obstruction of justice after the police

intercepted a conversation in which she and Rowan had

discussed fabricating an alibi. She also testified about the

incident involving the newspaper that occurred at her house,

explaining that Rowan and Gonzalez had been visiting her and

Gonzalez was “walking around nervous.” He went outside,

retrieved a newspaper, and started “flipping out.” There was a

picture of Rosa on the front page of the paper. Gonzalez then

repeatedly stated, “this is her” and that “it was a robbery that

went wrong.”

Celina also testified that she told police Gonzalez had said

he thought he shot a female police officer. He also stated that

the shooting had occurred on “Eucalyptus” and that he

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approached the woman on his bicycle. He had tried to rob her

because he needed money for drugs.

Gonzalez did not present any evidence at the guilt stage.

B. Penalty Phase

1. Prosecution’s evidence

At the penalty phase, the prosecution presented evidence

of a number of robberies Gonzalez had allegedly committed in

1994. A witness testified about an armed robbery at a

restaurant in Long Beach during which a young Hispanic male

had pointed a firearm at her boyfriend and demanded his wallet.

Another witness testified that he and three others had been in

a parking lot located in Long Beach when three individuals

robbed them at gunpoint. A liquor store owner and his brother

testified that they were robbed inside their store at gun point by

three individuals, one of whom fired a shotgun as he was fleeing.

A man described being robbed at gunpoint by three Latino men

while waiting in his car to use an ATM. Two Baskin Robbins

employees described being robbed inside a Long Beach store by

three armed men. A police officer who had investigated the

string of robberies testified that several of the victims had

identified Gonzalez as the perpetrator. A second investigating

officer testified that Gonzalez admitted he had committed the

four robberies and that he was “the one that usually holds the

gun in the robbery.” A district attorney’s investigator described

Gonzalez’s admission to additional robberies committed during

the same time period.

The prosecution also presented evidence of violent crimes

Gonzalez had allegedly committed in 2006. A witness described

an incident outside a restaurant in Downey in which a person

had fired six or seven gunshots in the direction of a vehicle that

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was driving away. Additional testimony indicated that the

person who was shot at was dating Rowan and that Gonzalez

had coerced Rowan into luring the man to the restaurant.

Another witness described suffering five gunshot wounds

during a separate incident in Long Beach. The victim was

sitting on his porch when two Hispanic men came around the

corner; one of them yelled “motherfucker this is BP,” a reference

to “Barrio Pobre” street gang, and began shooting. An

investigating detective testified that the shooting was part of an

ongoing gang dispute, and that Gonzalez was a known member

of Barrio Pobre. A criminalist testified that shell casings from

the Downey shooting, the Long Beach shooting, and a third

shooting had been fired from the same gun.

An additional witness testified that Gonzalez had pointed

a gun at him and taken his keys during a carjacking. Rowan

testified that Gonzalez had made statements to her about

stealing a car, which she had seen him drive. The statements

that Gonzalez made to Rowan about the car theft and the vehicle

that she had seen him driving matched the victim’s description

of the carjacking incident.

The prosecution presented additional testimony about

several incidents that occurred while Gonzalez was incarcerated

in 2007. A deputy testified that when he was doing searches of

inmates before they came to court, Gonzalez’s cell door was

mistakenly left open, and he attacked the deputy. Another

deputy described an incident where a new inmate shouted to

Gonzalez that he wanted to attack a correctional officer, and

Gonzalez shouted back that he would like to help “put another

notch on my belt.”

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The prosecution also presented extensive victim impact

evidence that included testimony from several of Rosa’s friends

and colleagues. An officer who worked with Rosa testified that

she was a caring person who took pride in her work. Another

witness described an instance when Rosa helped her after an

accident as exemplary of Rosa’s willingness to help others.

Other friends and colleagues testified about Rosa’s dedication to

her work, her bright and kind personality, and the sense of loss

they had felt after Rosa’s death.

The prosecution also presented two family members as

witnesses. Officer Martin, who was Rosa’s longtime partner,

described how they had met, their plans for adopting a child and

Rosa’s early life in Mexico and then the United States. She

described the effort Rosa had put in to get a college degree and

to become a police officer. She also described her profound sense

of loss when Rosa died. Rosa’s sister described their close sibling

relationship and Rosa’s early life. She also described a period of

time when Rosa and Martin took care of the sister’s children so

that the children might have a better life.

Finally, over an objection from the defense, the

prosecution played an eight-minute victim impact video. The

video included emotional descriptions of Rosa by family, friends,

and colleagues, some of whom had also testified. At certain

points in the video, individuals were shown standing in a

cemetery while they described Rosa. At other times, their

descriptions were played over photo montages of Rosa. Soft

music played in the background throughout.

2. Defense’s evidence

Gonzalez’s paternal aunt testified that Gonzalez’s father

had been in prison since Gonzalez was an infant and was

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currently incarcerated for murder. Two of her other brothers

(Gonzalez’s uncles) died in prison and a third was a gang

member. When Gonzalez was a child, his mother began a

relationship with another man who introduced her to heroin and

his mother eventually became an addict. The aunt further

testified that although she had not seen Gonzalez since he was

a child, she loved him and believed he was a “good kid.” She also

showed a picture of Gonzalez’s three children.

One of Gonzalez’s paternal uncles described his criminal

and family history. The uncle had gone to prison as an accessory

to the murder Gonzalez’s father was incarcerated for. Like other

members of the Gonzalez family, the uncle and Gonzalez’s

father were active gang members for many years. The uncle saw

Gonzalez recruited into a gang and was unable to stop it. He

believed that Gonzalez had lacked a positive role model and that

his mother was indifferent to whether her son spent his

childhood on the street.

Another paternal aunt testified that Gonzalez’s father had

a drug problem that led to his incarceration when Gonzalez was

three years old. After Gonzalez’s father went to prison and his

mother had started using heroin, Gonzalez went to live with the

aunt for about eight months and improved in school. But after

that brief period, he returned to living with his mother in a

roach-infested building controlled by gangs. Gonzalez was

sentenced to the California Youth Authority a few years after

leaving his aunt’s care. She told the jury that she did not want

Gonzalez put to death, that she loved him, and that she felt he

was a part of her.

Gonzalez’s mother testified about her son’s upbringing.

His biological father had a drug problem but visited Gonzalez

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and seemed to love him. She confirmed that she lived with

another man after Gonzalez’s father went to prison and had

started regularly using heroin with the man. The mother stated

that Gonzalez had performed well in school as a child but started

getting into trouble as a teenager and became an active gang

member around the age of 12 or 13. She told the jury that she

loved her son and that he was a good father and a good son.

Rowan described her history with Gonzalez and his drug

problem. They had raised three children together, which

included two children he had fathered and a third child who had

a different father; Gonzalez treated all three of the children well.

Rowan explained that after Gonzalez was released from the

California Youth Authority he did not know how to get a job or

how to get around on his own. He had a serious drug problem

that he supported through occasional jobs and by committing

crimes. On cross-examination, Rowan admitted Gonzalez was

often violent with her and stole purses as a means of supporting

himself.

Gonzalez’s father testified that he had not seen his son

since he went to prison when Gonzalez was three years old.

Gonzalez’s father had gone to the California Youth Authority for

armed robbery at the age of 17, had a drug problem and was

involved in gangs. He had communicated occasionally with

Gonzalez by mail but was never in a position to provide paternal

guidance.

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II. DISCUSSION

A. Guilt Phase Issues

1. Sufficient evidence supports the attempted robbery

conviction

Gonzalez argues that his conviction for attempted robbery

must be overturned because there was insufficient evidence

apart from his own out-of-court statements to satisfy the corpus

delicti rule. This rule, which “has [its] roots in the common law”

(People v. Alvarez (2002) 27 Cal.4th 1161, 1169 (Alvarez)),

precludes “convictions for criminal conduct not proven except by

the uncorroborated extrajudicial statements of the accused.

[Citations.] [It] is intended to ensure that one will not be falsely

convicted, by his or her untested words alone, of a crime that

never happened.” (Ibid., fn. omitted.) “ ‘The amount of

independent proof of a crime required [to satisfy the corpus

delicti rule] is quite small.’ [Citation.] The prosecution need not

adduce ‘independent evidence of every physical act constituting

an element of an offense.’ [Citation.] Instead, it need only make

‘some indication that the charged crime actually happened,’ so

as to ensure ‘that the accused is not admitting to a crime that

never occurred.’ ” (People v. Krebs (2019) 8 Cal.5th 265, 317

(Krebs).) “The independent proof may be circumstantial and

need not be beyond a reasonable doubt, but is sufficient if it

permits an inference of criminal conduct, even if a noncriminal

explanation is also plausible.” (Alvarez, at p. 1171.) We have

previously applied the corpus delicti rule to inchoate crimes

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such as attempted robbery. (See People v. Ray (1996) 13 Cal.4th

313, 342 (Ray ).)3

Gonzalez contends that apart from his own extrajudicial

statements, there was insufficient evidence to permit an

inference that there was an attempt to rob Rosa. Robbery is

defined as “the felonious taking of personal property in the

possession of another, from his person or immediate presence,

and against his will, accomplished by means of force or fear.” (§

211.) An attempted robbery consists of two elements: (1) the

3

Under the common law, the corpus delicti rule had both

an evidentiary and a substantive component. As an evidentiary

matter, the defendant’s extrajudicial statements were

inadmissible to show a crime had been committed until some

additional quantum of evidence was supplied. As a substantive

matter, the rule was as stated above, i.e., “every conviction must

be supported by some proof of the corpus delicti aside from or in

addition to [the defendant’s own] statements, and that the jury

must be so instructed.” (Alvarez, supra, 27 Cal.4th at p. 1165,

italics omitted; see id. at pp. 1168–1170.) In Alvarez, we held

that the “ ‘Right to Truth-in-Evidence’ provision of the

Constitution[,] [e]nacted as part of Proposition 8 in 1982”

(People v. Guzman (2019) 8 Cal.5th 673, 677 (Guzman)),

abrogated the evidentiary aspect of the corpus delicti rule, but

not its substantive aspect nor its requirement that when the

prosecution relies on a defendant’s extrajudicial statements, the

jury must be instructed on the requirement of independent

proof. (Alvarez, at p. 1165.) Thus, even after Proposition 8, the

corpus delicti rule requires “an instruction to the jury that no

person may be convicted absent evidence of the crime

independent of his or her out-of-court statements” and “allows

the defendant, on appeal, directly to attack the sufficiency of the

prosecution’s independent showing.” (Id. at p. 1180.) There is

no dispute that the jury in this case received an appropriate

instruction regarding the rule.

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specific intent to commit the robbery, and (2) a direct,

unequivocal, overt act (beyond mere preparation) toward its

commission. (People v. Dillon (1983) 34 Cal.3d 441, 452–453.)

Given the low quantum of proof that is required, we are

satisfied that the prosecution provided the “ ‘minimal’ ” amount

of independent evidence necessary to satisfy the corpus delicti

rule. (People v. Jones (1998) 17 Cal.4th 279, 301 [“we have

described [the necessary] quantum of evidence as ‘slight’

[citation] or ‘minimal’ ”].) The evidence at trial showed two men

were seen riding bicycles in a residential neighborhood early in

the morning and gunshots were heard shortly thereafter.

Around that time, surveillance video in the area captured

images of Gonzalez on a bicycle. Rosa’s body was found near her

car, which was parked in the driveway of a residence with the

trunk open and the keys hanging from the keyhole. A bicycle

was lying on the ground nearby. Several items were inside the

trunk, including Rosa’s purse, which was partially open, and a

firearm with a bullet that appeared to have been jammed inside

it, and Rosa’s police badge. There was no evidence of any sexual

or other form of motive for the confrontation that led to Rosa’s

death, nor was there any evidence that the perpetrators knew

the victim. A jury might reasonably conclude this evidence

provides at least “ ‘ “some indication” ’ ” (Krebs, supra, 8 Cal.5th

at p. 317) that the assailants surprised Rosa while she was

standing near the open trunk of her car, which contained a

partially open purse, and then forcibly attempted to take her

property, but killed her in an ensuing struggle and then fled.4

4

At trial, the prosecution presented evidence that Flint told

an undercover agent Rosa would be alive if she had given up her

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Our conclusion finds support in prior cases that addressed

similar corpus delicti claims. In Ray, supra, 13 Cal.4th 313, for

example, we considered whether there was sufficient evidence

independent of defendants’ statements to support the jury’s

finding that an assault had occurred during an attempted

robbery. The evidence showed the two defendants, both armed

and dressed in fatigues, had approached the victims as they

exited an entertainment venue. The defendants then moved the

victims “to a more obscure area of the parking lot.” (Id. at p.

342.) When one of the victims resisted, he was shot; the second

victim then attempted to flee and was also shot. We concluded

the jury could reasonably infer from such evidence that “the

perpetrators intended to steal the victims’ property at gunpoint”

“even though the evidence [did] not eliminate the inference that

additional or different crimes were intended.” (Ibid.)

In People v. Valencia (2008) 43 Cal.4th 268 (Valencia), we

held that testimony showing an “apartment door had been

broken open, and one of the persons inside was bleeding from a

. . . head injury” was sufficient to “permit[] an inference of

robbery.” (Id. at p. 297.) We explained, “[a] broken-open

apartment door and a man inside with a bleeding head wound

suggest robbery, a very common purpose for a home invasion.

wallet. Although this statement provides clear corroboration

that the murder occurred during an attempted robbery, multiple

courts have held that “the corpus delicti [cannot] be established

by the extrajudicial statements of a codefendant.” (Munoz v.

Superior Court (2020) 45 Cal.App.5th 774, 779; see Jones v.

Superior Court (1979) 96 Cal.App.3d 390, 397.) Because we

conclude there was sufficient evidence to satisfy the corpus

delicti rule without reliance on Flint’s statement, we need not

address whether an accomplice or codefendant’s extrajudicial

statements may satisfy the corpus delicti rule.

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Indeed, few other possible explanations for these events come to

mind, and none so likely as robbery. These might not be the only

possible inferences, but they are certainly reasonable

inferences, which is sufficient.” (Ibid., italics omitted.)

The evidence here — that two men with no relation to the

victim were seen riding bicycles near the crime scene early in

the morning, a bicycle was abandoned near the victim’s body

and her belongings, which included a jammed firearm and a

police badge, were in an open car trunk and her purse was

partially open — is at least as suggestive of robbery as the

evidence at issue in Ray and Valencia.5 While the evidence does

not preclude that the perpetrators may have had a different

motive, it is nonetheless sufficient to support an inference of

attempted robbery.6

5

Gonzalez argues that the fact none of Rosa’s belongings

were removed from the car trunk weighs against any finding of

attempted robbery. However, as in both Ray, supra, 13 Cal.4th

at pp. 341–342, and Valencia, supra, 43 Cal.4th at p. 297, while

there was no evidence the perpetrators actually stole any

property from the victims, there was nonetheless sufficient

evidence to support the inference that the perpetrators’ motive

was robbery.

6

In his opening brief, Gonzalez also argued that because

“the prosecution did not prove the corpus delicti of the

underlying felony of attempted robbery,” it had likewise failed

to prove “the felony murder charged based on that felony.”

However, in his reply brief, Gonzalez acknowledges that for

crimes committed after the adoption of section 190.41 (added by

Prop. 115, Primary Elec. (June 5, 1990) § 11), “ ‘the corpus

delicti of a felony-based special circumstance . . . need not be

proved independently of a defendant’s extrajudicial

statement.’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216,

1263, fn. 1, quoting § 190.41.)

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2. The trial court did not err in admitting statements

obtained during the undercover operation

Gonzalez argues the trial court erred in admitting all

statements obtained during the undercover operation that law

enforcement performed while he and Flint were being

transported to, and then held at, the Los Angeles County jail.7

Gonzalez contends the statements were inadmissible because

his Sixth Amendment right to counsel had attached at that time.

Alternatively, he argues the delay in bringing charges against

him for Rosa’s murder violated his due process rights because

such conduct delayed appointment of counsel. Both claims are

without merit.

The right to counsel guaranteed by the Sixth Amendment

does not attach until “ ‘ “the initiation of adversary judicial

criminal proceedings — whether by way of formal charge,

preliminary hearing, indictment, information, or

arraignment.” ’ ” (Rothgery v. Gillespie County (2008) 554 U.S.

191, 198; see People v. Slayton (2001) 26 Cal.4th 1076, 1079.) At

that point, “the State’s relationship with the defendant has

become solidly adversarial” (Rothgery, at p. 202) — “ ‘the

government has committed itself to prosecute, and . . . the

adverse positions of government and defendant have solidified.

It is then that a defendant finds himself faced with the

prosecutorial forces of organized society, and immersed in the

intricacies of substantive and procedural criminal law.’ ”

(United States v. Gouveia (1984) 467 U.S. 180, 189 (Gouveia).)

7

At trial, Gonzalez filed a motion to suppress any evidence

obtained during the undercover operation, arguing that law

enforcement’s conduct violated his Fifth and Sixth Amendment

rights. The trial court denied the motion.

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After the Sixth Amendment right has attached, government

agents may not obtain incriminating statements from a

defendant about the charged crime outside the presence of

defendant’s counsel absent an explicit waiver. (See Maine v.

Moulton (1985) 474 U.S. 159, 170–177.)

Here, Gonzalez made the incriminating statements over a

month before the complaint was filed against him. Thus, under

existing authority, Gonzalez’s Sixth Amendment rights had not

yet attached (and could not have been violated) when the

undercover operations were performed. (Compare People v.

Clair (1992) 2 Cal.4th 629, 658 [rejecting claim that use of

undercover agent violated 6th Amend. right to counsel after the

defendant had become “focus of the investigation,” but had not

yet been formally charged], with Illinois v. Perkins (1990) 496

U.S. 292, 299 [“the government may not use an undercover

agent to circumvent the Sixth Amendment right to counsel once

a suspect has been charged with the crime”].)

Gonzalez does not contend otherwise. Instead, he appears

to argue we should adopt the Sixth Amendment test that

Justice Stevens articulated in his concurring opinion in Gouveia,

supra, 467 U.S. 180. Justice Stevens’s concurrence argued that

“[i]f the authorities take a person into custody in order to

interrogate him or to otherwise facilitate the process of making

a case against him, . . . the person is sufficiently ‘accused’ to be

entitled to the protections of the Sixth Amendment.” (Id. at p.

197 (conc. opn. of Stevens, J.).) If that concurrence reflected

controlling law, Gonzalez would likely have a valid claim. But

it does not. To the extent Gonzalez is suggesting we should

revisit the “well established” (U.S. v. Kourani (2d Cir. 2021) 6

F.4th 345, 353) rules governing when the Sixth Amendment

right to counsel commences, we decline to do so.

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Gonzalez alternatively argues that the delay in bringing

charges against him violated his due process rights because the

delay was undertaken to gain a tactical advantage over him.

“[T]he right of due process protects a criminal defendant’s

interest in fair adjudication by preventing unjustified delays

that weaken the defense through the dimming of memories, the

death or disappearance of witnesses, and the loss or destruction

of material physical evidence.” (People v. Martinez (2000) 22

Cal.4th 750, 767.) As our high court has explained, however,

“Law enforcement officers are under no constitutional duty to

call a halt to a criminal investigation the moment they have the

minimum evidence to establish probable cause, a quantum of

evidence which may fall far short of the amount necessary to

support a criminal conviction.” (Hoffa v. United States (1966)

385 U.S. 293, 310; see United States v. Lovasco (1977) 431 U.S.

783, 791 [prosecutors have “no duty to file charges as soon as

probable cause exists but before they are satisfied they will be

able to establish the suspect’s guilt beyond a reasonable

doubt”].) We find no merit in Gonzalez’s contention that law

enforcement’s attempts to obtain further evidence of guilt after

having probable cause to arrest him violated the Fifth

Amendment right to due process.

3. There was no abuse of discretion in denying defense

counsel’s request for a second continuance

Gonzalez argues the court erred in denying his attorney’s

request for a second continuance of the trial.

a. Background

Approximately one year after defense counsel was

appointed, she filed a continuance motion seeking a four-month

delay of trial. The filing included a declaration describing

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counsel’s efforts in preparing for trial. The declaration also

described the need for additional time to investigate recently

disclosed aggravating factors and DNA discovery. The trial

court held a hearing on the motion and learned that Gonzalez

was not willing to waive time. Despite Gonzalez’s desires, the

trial court granted the motion, deciding that his right to effective

assistance of counsel outweighed his statutory speedy trial

right.

One month in advance of the new trial date, defense

counsel filed a motion to continue the trial for another four

months. In the attached declaration, which was filed under seal

to protect the defense’s trial strategy, counsel explained there

were three avenues of investigation she had not yet completed.

First, counsel stated she had not yet received “any feedback from

her DNA expert.” The declaration provided no time estimate as

to when she expected to hear from the expert nor did it describe

what exculpatory evidence she hoped to obtain (or the likelihood

that such evidence would be obtained). Second, counsel stated

that she needed to “obtain the services of both a psychiatrist and

psychologist” for the penalty phase. Again, however, counsel

provided no details regarding the expected timetable for

obtaining such services or the nature of the evidence she hoped

to gain. Finally, counsel asserted that there “remain[ed] other

penalty phase witnesses that must be located and interviewed.”

No details were provided about the identity of those purported

witnesses or the type of information they might have that would

be relevant to the penalty phase.

At the motion hearing, defense counsel informed the court

that although she had explained to Gonzalez that a continuance

was in his best interest, he remained unwilling to waive time

and had indicated he would seek to represent himself if a second

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continuance were granted. In an exchange with the court,

Gonzalez confirmed that while he understood his attorneys

believed they needed more time to prepare, he was not willing

to waive time. The prosecution did not object to a continuance,

but noted that because of conflicting schedules, any delay would

need to be for at least five months.

The court questioned whether it could find good cause for

a second lengthy continuance, explaining: “[T]he defendant

appears to be an intelligent young man. He understands what

is going on and he understand[s] the serious nature of this case.

And I found good cause in the past. I don’t know if I can keep

doing that in good conscience. A defendant can waive whatever

right that he has if he wishes to . . . . And I don’t know if I can

keep finding good cause to put it over, especially for the amount

of time that [we are] talking about. [¶] . . . [¶] . . . . [We are]

talking about five months. . . . I find that to be a difficult thing

for me to do when he refuses to waive time.” In response,

defense counsel acknowledged that she “under[stood] the court’s

concern” but felt an “obligation” to seek a continuance because

she did not feel she would be prepared on mitigation. The court

then denied the motion, explaining, “I cannot find good cause for

a five-month continuance when the defendant refuses to waive

time. All I can say is whatever needs to be done must be done

expeditiously.”

b. Discussion

We review a trial court’s order denying a motion to

continue for abuse of discretion. (See People v. Jackson (2009)

45 Cal.4th 662, 677–678; see also People v. Beames (2007) 40

Cal.4th 907, 920 [“[A]n order denying a continuance is seldom

successfully attacked”]; Cal. Rules of Court, rule 4.113 [“Motions

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to continue the trial of a criminal case are disfavored”].) A trial

court’s discretion “may not be exercised so as to deprive the

defendant or his attorney of a reasonable opportunity to

prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.) The

court “must consider ‘ “ ‘not only the benefit which the moving

party anticipates but also the likelihood that such benefit will

result, the burden on other witnesses, jurors and the court and,

above all, whether substantial justice will be accomplished or

defeated by a granting of the motion.’ ” ’ ” (People v. Doolin

(2009) 45 Cal.4th 390, 450 (Doolin).)

Under the unusual circumstances presented here, we

conclude the trial court did not abuse its discretion in

determining that substantial justice would not be accomplished

by granting the second motion for a continuance. While a court

facing a continuance request must normally weigh the

anticipated benefit to the defendant against the burdens the

continuance would have on other participants in the trial (see

Doolin, supra, 45 Cal.4th at p. 450), there was another factor to

consider in this case: Gonzalez had repeatedly stated that he

was against a continuance, implicating not only his statutory

right to a speedy trial but his constitutional rights. (See U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15; Townsend v.

Superior Court (1975) 15 Cal.3d 774, 781 (Townsend) [“The right

to a speedy trial is undeniably ‘as fundamental as any of the

rights secured by the Sixth Amendment’ [citation], and . . .

counsel may not waive this constitutional right over his client’s

objections” (italics omitted)].)

Further complicating matters, defense counsel informed

the court that Gonzalez had indicated he would choose to

represent himself in the event of a second continuance. The trial

court might reasonably conclude that whatever benefits could be

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gained from an additional five-month delay were substantially

outweighed by the risks associated with self-representation in a

capital matter. Moreover, the declaration defense counsel

provided in support of the continuance motion was vague, failing

to explain with any specificity the type of exculpatory evidence

she hoped to gain from her further investigation or the

likelihood that she would in fact obtain such evidence. (See

Doolin, supra, 45 Cal.4th at p. 451 [“defendant’s

vague . . . reasons for the continuance failed to support good

cause”].)

On the record presented here, we cannot conclude that

the trial court abused its discretion in attempting to balance the

right to effective counsel versus the asserted right to a speedy

trial by granting one continuance over defendant’s objection, but

not two. (See Townsend, supra, 15 Cal.3d at p. 784 [“counsel

[does not] possess[] carte blanche under any and all conditions

to postpone his client’s trial indefinitely”].)

4. The wiretap application was not facially invalid

Gonzalez argues the trial court should have suppressed

any evidence derived from communications that law

enforcement intercepted pursuant to the wiretap order. As

discussed in more detail below, John Spillane, the chief deputy

district attorney for Los Angeles County, signed the wiretap

application and attested that he was “the person designated to

act as District Attorney in [District Attorney Steve Cooley’s]

absence.” Although California’s wiretap law expressly allows

for such designation (see § 629.50, subd. (a)), Gonzalez contends

the application was nonetheless invalid because it failed to

include information describing the circumstances of District

Attorney Cooley’s absence. Gonzalez argues that without such

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information, there is no way to verify whether Cooley was truly

absent at the time Spillane filed the application. We find

nothing in the wiretap statute that imposes such a requirement.

a. Background

(i) The trial court proceedings

In August 2006, Chief Deputy District Attorney John

Spillane filed an application for an order authorizing wiretaps

on several phones affiliated with Gonzalez. The application

included a declaration, made under penalty of perjury, from

Spillane stating, “Steve Cooley is the District Attorney of the

County of Los Angeles and I am the person designated to act as

District Attorney in his absence pursuant to Penal Code

[s]ection 629.50[, subdivision ](a).” The declaration also stated

Spillane had reviewed an attached 37-page affidavit from

detective Thomas Kerfoot that provided background

information regarding the investigation and explained the need

for the wiretaps. Spillane further attested that he agreed the

wiretaps were both necessary and likely to intercept

communications related to Rosa’s murder. The application also

included a signed attestation from Long Beach Police

Department Chief Anthony Betts confirming that he had

reviewed Kerfoot’s affidavit and had approved the application.

Prior to trial, Gonzalez filed a motion arguing that any

evidence derived from the wiretaps should be suppressed

because Spillane’s application did not include any information

confirming that District Attorney Cooley was absent when

Spillane had sought the order. Gonzalez’s motion contended

that the district attorney’s office had attempted to “take

advantage of an ambiguity” in the statutory provision that

authorizes a person designated to act in the district attorney’s

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absence to seek a wiretap application. That provision, set forth

in section 629.50, subdivision (a) (section 629.50(a)) states, in

relevant part: “Each application for an order authorizing the

interception of a wire or electronic communication shall be made

in writing upon the personal oath or affirmation of . . . a district

attorney, or the person designated to act as district attorney in

the district attorney’s absence.”

Gonzalez argued the language in section 629.50(a) could

be construed in one of two ways. First, it could mean that the

person designated to act as district attorney in the district

attorney’s absence can only seek an application when the

district attorney is actually absent; second, it could mean that if

a person has been designated to act as the district attorney when

the district attorney is absent, he or she can seek an application

even when the district attorney is present. Gonzalez argued

that the first interpretation was the correct reading, explaining

that “[w]hile the urgent nature of criminal investigations may

explain why the legislature provided for a delegate in the case

of the district attorney’s absence, there is no justification for

allowing such delegation when the district attorney is present

and capable of filing the application.”

Gonzalez further contended that based on the wording of

the wiretap application, it was unclear whether District

Attorney Cooley was truly absent when Spillane had sought the

order. According to Gonzalez, Spillane’s declaration stated only

that he was “ ‘the person designated to act as District Attorney

in [Steve Cooley’s] absence,’ but ma[de] no assertion whatsoever

regarding Cooley’s actual absence from his position.” Gonzalez

further argued that because the “government ha[d] made no

showing that Cooley was, in fact, absent when the

application . . . was approved . . . , that application and the

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ultimate wiretap authorization are invalid and illegal.”

Gonzalez did not present any argument as to the meaning of the

term “absent” nor did he produce any evidence suggesting that

District Attorney Cooley was not absent when Spillane signed

the application as the person designated to act in Cooley’s

absence.8

In its opposition to the motion to suppress, the prosecution

did not dispute that section 629.50(a) authorizes the designee to

act only when the district attorney is absent. Acknowledging

that few cases had addressed the requirements of section

629.50(a), the prosecution contended that the designation

provision “allows a District Attorney, whose responsibilities are

many, especially in a County the size of Los Angeles, to

designate someone to act” in his or her absence with respect to

wiretap applications, and “recognizes the numerous and varied

duties of a District Attorney . . . [by] allow[ing] for another to

take on wiretap application responsibilities.” The prosecution

then quoted three dictionary definitions of the term “absence,”

which included “ ‘the state of being away from place or person’ ”;

“ ‘the duration of being away’ ” and “ ‘not present.’ ” The

prosecution further asserted that Spillane’s declaration made

clear that the “District Attorney was absent and designated his

responsibility for review [sic]. . . . The statute could have but

did not require [District Attorney Cooley] or his designate to

provide documentation or explanation. In the absence of such

8

Gonzalez also argued the application was invalid because

there were factual inconsistencies regarding the date on which

Long Beach Police Department Chief Anthony Betts signed his

affidavit stating that he had reviewed and approved the

application. Gonzalez has not raised that claim on appeal.

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statutory provision, we must presume the Legislature did not

intend to require such proof.”

At the suppression hearing, defense counsel argued “the

problem” was that although section 629.50(a) made “clear that

someone else c[ould] only act if Cooley [wa]s absent,” the

application contained “nothing to indicate” Cooley was actually

absent when Spillane sought the order. Defense counsel

contended that “everybody knows what absent means,” noting

that the prosecutor “went through in her opposition papers to

explain the meaning and so forth.” Counsel acknowledged that

the “statute does not specifically” require the applicant to

include such information in the application, but argued it was

nonetheless “incumbent upon the prosecution, not the defense,

to establish that he was absent. So . . . with that application, it

would be inappropriate absent showing that Cooley was, in fact

absent . . . before [Spillane] could provide that application.”

In response, the prosecution argued defense counsel’s

contention that the district attorney must “prove [he was

absent] and . . . need[s] to document why he’s absent” found no

support “under the statute” or in the “case law.” The prosecution

further argued that Spillane’s under-oath statement that he was

the person designated to act as district attorney when Cooley

was absent provided “prima facie evidence” that he was properly

designated; the wiretap statute required nothing more.

The trial court agreed with the prosecution, concluding

that section 629.50(a) “provide[d] for” exactly the type of oath

Spillane had made in his declaration and did not include any

further “requirement . . . that there be proof that [the district

attorney was] absent.” The court further commented that it

could not “imagine the Legislature” requiring the district

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attorney or the designee to document the circumstances of the

absence “each time the chief of any agency is out of town,”

describing such a requirement as “onerous” and “unnecessary.”

(ii) Proceedings on appeal

On appeal, Gonzalez reiterates his argument that the

wiretap application was invalid because “there was no proof that

the elected district attorney of Los Angeles County, Steven

Cooley, was actually absent from his position when his Chief

Deputy, John Spillane, made the application.” His brief

discusses at length United States v. Perez-Valencia (9th Cir

2013) 727 F.3d 852 (Perez-Valencia), a Ninth Circuit decision

interpretating section 629.50(a)’s designation provision that

was decided several years after Gonzalez’s trial. Perez-Valencia

addresses the scope of authority a subordinate must be

delegated in order to seek a wiretap in the district attorney’s

absence, an issue Gonzalez did not raise in the trial court. The

Ninth Circuit concluded that the phrase “the person designated

to act as district attorney in the district attorney’s absence”

requires that the designee “must be acting in the district

attorney’s absence not just as an assistant district attorney

designated with the limited authority to apply for a wiretap

order, but as an assistant district attorney duly designated to

act for all purposes as the district attorney of the political

subdivision in question.” (Perez-Valencia, at p. 855.) Noting

that the prosecution’s opposition to the motion to suppress

appeared to interpret the requirements of section 629.50(a)

differently than Perez-Valencia, Gonzalez argues that the

application here was invalid because “there was no evidence

presented . . . as to either the nature of District Attorney

Cooley’s absence or the nature of the authority of Chief Deputy

Spillane.”

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At oral argument, Gonzalez’s counsel confirmed

defendant’s argument with respect to the wiretap order is that

the application was facially invalid because it failed to include

information verifying that the district attorney was absent.9

Thus, the issue we must decide is whether it is sufficient for a

wiretap application to state, as here, that it has been submitted

upon the oath of “the person designated to act as district

attorney in the district attorney’s absence” (§ 629.50(a)), or

whether section 629.50 also requires that an application include

information detailing the specific circumstances of the district

attorney’s absence.

b. Discussion

(i) Summary of federal and state wiretap laws

Title III of the federal Omnibus Crime Control and Safe

Streets Act of 1968 (Title III) (18 U.S.C. §§ 2510–2520)

“ ‘provides a “comprehensive scheme for the regulation of

wiretapping and electronic surveillance.” ’ [Citation.] As we

have previously observed, Title III ‘establishes minimum

standards for the admissibility of evidence procured through

electronic surveillance; state law cannot be less protective of

privacy than the federal Act.’ ” (People v. Leon (2007) 40 Cal.4th

376, 384 (Leon); see Villa v. Maricopa County (9th Cir. 2017) 865

F.3d 1224, 1230 (Villa) [“States may choose to enact wiretapping

9

Appellate counsel acknowledged that if this court did not

accept the “argument that more had to be said on the face of the

application itself,” there was no basis for relief. Counsel also

confirmed that Gonzalez’s argument was not related to anything

the prosecution said “in [its] response to the motion to suppress

or [at the suppression] hearing.”

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statutes imposing more stringent requirements, or . . . choose to

forego state-authorized wiretapping altogether”].)

Title III allows states to authorize only the following

categories of law enforcement officials to seek a wiretap order:

“The principal prosecuting attorney of any State, or the

principal prosecuting attorney of any political subdivision

thereof, if such attorney is authorized by a statute of that

State . . . .” (18 U.S.C. § 2516(2).) Pursuant to that provision,

California’s wiretap law (Pen. Code, § 629.50 et seq.) provides

that “[e]ach application for an order authorizing the interception

of a wire or electronic communication shall be made in writing

upon the personal oath or affirmation of the Attorney

General . . . or a district attorney, or the person designated to

act as district attorney in the district attorney’s absence.”

(§ 629.50(a).)10

Section 629.50(a) sets forth a detailed description of

additional categories of information a wiretap application must

contain, including (among other things) the identity of the

applicant, the identity of the agency that will carry out the

wiretap, the facts and circumstances demonstrating the need for

10

Although 18 United States Code section 2516(2) only

refers to “the principal prosecuting attorney of any political

subdivision,” courts have held that this language does not

preclude states from authorizing a district attorney to delegate

wiretap authority to a subordinate when absent. (See U.S. v.

Fury (2d Cir.1977) 554 F.2d 522, 527, fn. 4 (Fury) [“ ‘Congress

simply could not have intended that local wiretap activity would

be completely suspended during the absence or disability of the

official specifically named [in § 2516(2)]’ ”]; Perez-Valencia,

supra, 727 F.3d at p. 854.)

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the warrant and the period of time the wiretap will be used. (See

§ 629.50(a)(1)–(4).)

(ii) Section 629.50(a) does not require that the

application describe the circumstances of the

district attorney’s absence

Gonzalez argues that the wiretap application filed in this

case was invalid because it did not include any information

confirming the circumstances of District Attorney Steve Cooley’s

absence. But as defense counsel acknowledged at the

suppression hearing, there is no language in California’s

wiretap laws that imposes such a requirement. Instead, the

designation provision states only that an application for a

wiretap order “shall be made in writing upon the personal oath

or affirmation of . . . a district attorney, or the person designated

to act as district attorney in the district attorney’s absence.” (§

629.50(a).)

In contrast to section 629.50(a)’s designation provision,

other sections of the wiretap statute do require that the

application include information verifying certain standards

have been met. In particular, section 629.50(a)(4) requires that

the applicant provide a “full and complete statement of the facts

and circumstances relied upon to justify his or her belief that an

order should be issued.” That “full and complete statement”

must include, among other things, a description of the offense

that is being investigated, an explanation why conventional

investigative techniques are insufficient, a description of the

type of communications that are expected to be intercepted, and

the identity of the persons whose communications are expected

to be intercepted. (Ibid.)

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Had the Legislature intended to impose a similar

requirement compelling the application to include a “full and

complete statement of the facts” confirming the circumstances

of the district attorney’s absence, it could have directed as much.

But that is not what the Legislature did. Instead, it required

only that the application must “be made in writing upon the

personal oath or affirmation of . . . a district attorney, or the

person designated to act as district attorney in the district

attorney’s absence.” (§ 629.50(a).) The application from Chief

Deputy Spillane includes an oath that incorporates that exact

statutory language. The express provisions of the wiretap

statute require nothing more.

Gonzalez has likewise cited no case holding that a wiretap

applicant who claims to have been lawfully designated to seek

the application has a sua sponte duty to provide information

confirming the legality of that designation. Indeed, the few

cases we have found addressing similar claims have rejected

such arguments. (See U.S. v. Terry (2d Cir. 1983) 702 F.2d 299,

311 [rejecting claim that application was invalid because it

failed to include information showing that three assistant

attorneys general with higher priority than the applicant “were

absent or otherwise unavailable”]; U.S. v. Ruiz (S.D.N.Y., Nov.

19, 2010, No. 09 CR. 719 (DAB)) 2010 U.S. Dist. Lexis 123991,

pp. *13–*14 [§ 629.50(a) does not “impose a burden on

investigative agencies or prosecutors to . . . prove they were

absent when a designee acts on their behalf”]; U.S. v. Mattingly

(W.D.Ky., July 1, 2016, No. 3:15-CR-99-DJH) 2016 U.S. Dist.

Lexis 86489, pp. *19–*20 [“Because [defendant] has failed to

present competent and credible evidence, as opposed to mere

speculation, that [district attorney] was in fact available and

reachable when [the designated acting district attorney]

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submitted the application . . ., suppression is not warranted on

the ground that the wiretaps were improperly authorized”].)

These cases are in accord with the general principle that,

“absen[t] . . . evidence to the contrary, it is presumed that official

duty has been properly performed.” (Roelfsema v. Department

of Motor Vehicles (1995) 41 Cal.App.4th 871, 879 [relying on

Evid. Code, § 664]; cf. Terry, supra, 702 F.2d at p. 311 [“a named

designee whose high office [gives] him statutory power to

authorize electronic surveillance orders is presumed to have

properly exercised that power and the condition[s] precedent

[are] presumed to have been met unless the defendants offer

evidence, apart from mere conjecture or speculation, to rebut

this presumption”]; People v. Davis (2008) 168 Cal.App.4th 617,

630 [because the “ ‘ defendant bears the burden of proving that

a wiretap is invalid once it has been authorized,’ ” “the failure to

bring a timely challenge to wiretap evidence forfeits the claim”].)

The primary authority Gonzalez discusses in his appellate

briefing is Perez-Valencia, supra, 727 F.3d 852, a case decided

long after his trial was completed. However, nothing in Perez-

Valencia suggests section 629.50(a) requires that an application

submitted under the oath of a designated acting district

attorney must include information verifying the circumstances

of the district attorney’s absence. Instead, as explained above,

Perez-Valencia interpreted the scope of authority that a

designated subordinate must have in order to seek a wiretap

order under section 629.50(a), concluding the provision only

applies when the district attorney has “duly designated [a single

subordinate] to act for all purposes as the district attorney of the

political subdivision in question.” (Perez-Valencia, at p 855,

italics omitted.) While that interpretation is consistent with

both the wording of section 629.50(a) — the “district attorney or

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the person designated to act as district attorney” (italics

added) — and the language of Title III, which contemplates that

only one “principal prosecuting attorney” will have wiretap

authority at any given time (see 18 U.S.C. § 2516(2) [states may

authorize “the principal prosecuting attorney of any political

subdivision thereof” (italics added)]; Fury, supra, 554 F.2d at p.

527, fn. 4 [state law authorizing district attorney to designate

subordinate to act in his or her absence was permissible under

Title III because “[t]here is still only one person who has the

authority [to act]”]), it is not relevant to Gonzalez’s claim that

the government was required to submit “proof” beyond

Spillane’s attestation confirming that “the elected district

attorney . . . was actually absent from his position.” Perez-

Valencia provides no guidance on that question.11

11

At the suppression hearing, the trial court commented

that it did not believe the term “absent” in section 629.50(a) was

limited to situations where the district attorney was “out [of]

town [or] out of state,” but could also apply where the district

attorney was “involved in doing other things” and “not available

to do this type of work.” The prosecution agreed, asserting that

the statute “simply means not present and not available, but it

doesn’t mean physically in another jurisdiction.” In its

opposition to the motion to suppress, the prosecution also

asserted, among other things, that the statute “recognizes the

numerous and varied duties of a District Attorney . . . [by]

allow[ing] for another to take on wiretap application

responsibilities.” (See ante, at p. 29.)

While some of those comments could be construed to

endorse a broader interpretation of section 629.50(a) than the

Ninth Circuit articulated in Perez-Valencia, supra, 727 F.3d

852, their meaning is not entirely clear in context. In any event,

defense counsel did not voice any objection to the trial court’s

statements (or the prosecution’s statements) regarding what

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Gonzalez appears to argue that we should require the

application to confirm the circumstances of the district

attorney’s absence because merely incorporating the

designation standard set forth in section 629.50(a) leaves

ambiguity as to whether the district attorney was truly absent.

As we understand it, Gonzalez’s position is that a statement like

the one in Spillane’s application (which tracks the statutory

language) does not attest that the district attorney was actually

absent; instead, it attests only that the applicant is the person

designated to act as district attorney when the district attorney

is absent. Thus, it leaves open the possibility that the applicant

is merely stating that he or she is the person who is designated

to act when the district attorney is absent, not that the district

attorney was absent when the application was filed.

We think it clear, however, that when an applicant such

as Spillane attests, “Steve Cooley is the District Attorney of the

County of Los Angeles, and I am the person designated to act as

District Attorney in his absence pursuant to Penal Code

[s]ection 629.50(a),” that statement is most reasonably

construed as a declaration that the district attorney is in fact

absent. Indeed, the wording of Spillane’s oath quite logically

“absent” means, nor did counsel offer an alternative

interpretation. Instead, counsel argued only that the wiretap

application was invalid because it did not contain any

information substantiating that the district attorney was

absent. At oral argument, appellate counsel confirmed that

Gonzalez raises the same challenge before this court.

Accordingly, we have no occasion to consider the precise

circumstances under which a district attorney is considered

“absent” under section 629.50(a) or otherwise address the scope

of authority that the statute requires the district attorney to

delegate to a subordinate when absent.

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tracked the language of section 629.50(a) almost verbatim (see

§ 629.50(a) [application “shall be made in writing upon the

personal oath or affirmation of the . . . district attorney, or the

person designated to act as district attorney in the district

attorney’s absence” (italics added)].)12 Moreover, in this case, the

prosecution confirmed to the trial court that the statement was

intended to convey the “District Attorney was absent and

designated his responsibility for review.” Contrary to

Gonzalez’s suggestion, we do not believe Spillane’s use of the

very oath that is set forth in the wiretap statute casts doubt

upon whether the district attorney truly was absent, thereby

necessitating some further evidentiary showing.

In sum, we decline to read into section 629.50(a) a

requirement that when a person designated to act as district

attorney in the district attorney’s absence seeks a wiretap order,

the application must include information that explains the

circumstances of the district attorney’s absence. (See People ex

rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 768 [“In

construing a statute, we do not insert words into it as this would

‘violate the cardinal rule that courts may not add provisions to

a statute’ ” (quoting Adoption of Kelsey S. (1992) 1 Cal.4th 816,

827)].) If the Legislature believes these additional safeguards

would be prudent to ensure that law enforcement is operating

12

Especially when read against the backdrop of the federal

law it implements, the language of section 629.50(a) is naturally

understood to require that the affirmation come from either the

“principal prosecuting attorney” in the relevant jurisdiction (18

U.S.C. § 2516(2)) or the person who is acting as principal

prosecuting attorney during the principal prosecuting attorney’s

period of absence. (See Fury, supra, 554 F.2d at p. 527, fn. 4.)

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within the limitations of section 629.50(a), it is of course free to

amend the statute accordingly.

5. Any violation of Gonzalez’s right to confrontation was

harmless

Gonzalez argues the trial court’s admission of certain

testimony related to the DNA evidence violated his rights under

the confrontation clause of the Sixth Amendment to the United

States Constitution. Although the merits of Gonzalez’s claim

are difficult to assess given the divided state of the high court’s

current confrontation clause jurisprudence, we conclude that

any Sixth Amendment violation that may have occurred in this

case was harmless beyond a reasonable doubt. (See People v.

Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 395 (Bryant)

[confrontation clause violations are subject to federal harmless

error standard enunciated in Chapman v. California (1967) 386

U.S. 18].)

a. Background

Juli Watkins, a criminalist for the Los Angeles County

Sheriff’s Department, obtained genetic samples from the bicycle

that was left near the scene of the shooting. She also received a

reference sample from Rosa. Watkins was able to generate a

DNA profile of Rosa, but the samples from the bicycle were

contaminated and unusable. Watkins’s colleague, Kari Yoshida,

collected new samples from the bicycle and was able to generate

a DNA profile of a contributor to one of those samples. In July

2006, Watkins and Yoshida co-authored and signed a report

describing the analyses they had each performed to date.

After receiving notification that Gonzalez was a possible

match to the DNA from the bicycle sample, Watkins obtained a

reference sample from him and generated a DNA profile. She

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then compared that profile to the profile Yoshida had generated

from the bicycle sample and concluded Gonzalez was a possible

contributor. Watkins prepared a supplement report that

estimated the chances a randomly selected person would be a

possible contributor to the profile generated from the bicycle

were one out of three billion Caucasians, one out of 14 billion

African-Americans and one out of one billion Hispanics. A copy

of the supplemental report was introduced at trial.

Watkins testified at the trial, but Yoshida did not.

Watkins explained the roles she and Yoshida had each played in

producing the relevant DNA evidence. Watkins also testified as

to her determination that Gonzalez was a possible contributor

to the bicycle sample. When asked, “How common would it be

for a person to have been included as a possible contributor,”

Watkins answered, “A conservative statistic . . . was estimated

to be one out of one billion.”

b. Any confrontation clause violation was harmless

Gonzalez argues the trial court committed two evidentiary

errors that violated his rights under the confrontation clause.

First, it allowed Watkins to testify about the DNA analysis that

her colleague, Yoshida, had conducted on the bicycle, which

resulted in the profile that Watkins ultimately determined to be

a possible match with Gonzalez’s profile. Second, the court

admitted into evidence a report that included Yoshida’s

analysis.

“The Sixth Amendment’s Confrontation Clause provides

that, ‘[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.’ ”

(Crawford v. Washington (2004) 541 U.S. 36, 42.) “Crawford

held that the clause bars introduction of ‘testimonial’ hearsay

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against a defendant unless the witness is unavailable and the

defendant had a prior opportunity for cross-examination.”

(People v. Amezcua and Flores (2019) 6 Cal.5th 886, 911–912

(Amezcua).) The question of whether and when statements in

technical reports qualify as “testimonial hearsay” remains an

evolving area of the law. (See id. at p. 912.)

In 2012, this court issued three companion cases that

addressed confrontation clause claims involving testimony

detailing the results of technical reports that had been prepared

by a nontestifying witness. (See People v. Lopez (2012) 55

Cal.4th 569; People v. Dungo (2012) 55 Cal.4th 608 (Dungo);

People v. Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt).)

Those cases generated numerous separate opinions, reflecting

the fragmented nature of the high court’s reasoning in this area.

(See Dungo, at p. 616 [“Sixth Amendment confrontation right

issue [was] far from easy to resolve in light of the widely

divergent views expressed by the justices of the United States

Supreme Court in . . . recent . . . cases”]; id. at p. 628 (conc. opn.

of Chin, J.) [concluding that it is “difficult to determine what to

make” of high court’s confrontation clause jurisprudence];

Lopez, at p. 590 (dis. opn. of Liu, J.) [the multitude of opinions

in Lopez, Dungo, and Rutterschmidt reflected “the muddled

state of current doctrine concerning the Sixth Amendment right

of criminal defendants to confront the state’s witnesses against

them”].) More recently, we have noted that “ ‘considerable flux’

[continues to] surround[] the high court’s Sixth Amendment

jurisprudence” (People v. Schultz (2020) 10 Cal.5th 623, 660, fn.

8), and that “[a] comprehensive definition of the term

‘testimonial’ awaits articulation.” (Amezcua, supra, 6 Cal.5th at

p. 912.)

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We need not delve further into the high court’s divided

confrontation clause jurisprudence because even if a Sixth

Amendment violation is assumed, “ ‘it [is] clear beyond a

reasonable doubt that a rational jury would have found the

defendant guilty absent the error.’ ” (People v. Geier (2007) 41

Cal.4th 555, 608 [describing the harmless error standard

applicable to a claim challenging the admission of DNA evidence

under the confrontation clause]; see Rutterschmidt, supra, 55

Cal.4th at p. 661 [“Violation of the Sixth Amendment’s

confrontation right requires reversal of the judgment against a

criminal defendant unless the prosecution can show ‘beyond a

reasonable doubt’ that the error was harmless”].) As we have

previously observed, DNA analysis is a powerful form of

evidence that can (and often will) be highly prejudicial to the

defendant. (See Dungo, supra, 55 Cal.4th at p. 631 [“ ‘a DNA

profile may provide powerful incriminating evidence’ ” (quoting

Williams v. Illinois (2012) 567 U.S. 50, 85 (plur. opn. of Alito,

J.))]; see also U.S. v. Barton (11th Cir. 2018) 909 F.3d 1323, 1338

[“DNA evidence is powerful and it could be highly prejudicial”].)

However, even when highly prejudicial, the erroneous

admission of DNA analysis may still be deemed harmless where

the remaining evidence is so overwhelming as to leave no

reasonable doubt as to the defendant’s guilt. (See Geier, supra,

41 Cal.4th at p. 608 [“any error in the admission of DNA

evidence was harmless beyond a reasonable doubt”]; cf. Doolin,

supra, 45 Cal.4th at p. 448 [although admission of DNA evidence

violated state evidentiary law, the error was harmless “in light

of the overwhelming and uncontradicted evidence of defendant’s

guilt”].) We believe this is such a case.

The prosecution’s case against Gonzalez centered on two

categories of highly incriminating evidence that were

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independent of the DNA analysis: (1) statements that Gonzalez

and Flint made to law enforcement agents who were posing as

inmates during a sophisticated undercover operation; and (2)

admissions that Gonzalez made to his longtime girlfriend and

sister regarding his commission of the offense. The quantity and

quality of that evidence was prodigious.

During the undercover operation, most of which was

recorded, Gonzalez informed multiple agents that he had shot a

female police officer. Gonzalez also disclosed numerous details

about the crime, explaining (among other things) that he had

left a bicycle at the scene, that he had thrown the murder

weapon into the water and that he had not left any footprints

because the crime occurred on pavement. Gonzalez and Flint

were also heard discussing killing any witnesses to the murder,

and Flint stated that the victim would not have been killed if

she had given up her wallet.

Gonzalez’s girlfriend and sister provided additional,

highly incriminating testimony. Rowan and Celina both

explained they had pleaded guilty to obstruction of justice after

law enforcement intercepted conversations in which they were

heard fabricating an alibi for Gonzalez. They both testified that

Gonzalez had admitted he shot a female police officer and

showed them a newspaper with a story about the crime. Rowan

also testified that Gonzalez told her he left a bicycle at the scene

of the crime and had thrown the murder weapon into the ocean.

Rowan further acknowledged that law enforcement had

recorded incriminating conversations she had with Gonzalez

while visiting him in prison. During those recorded

conversations, Gonzalez instructed her to contact an

acquaintance and ask him to take care of any possible snitches;

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he also exclaimed “oh fuck” after Rowan informed him that

police divers were searching for the murder weapon.

Given this highly incriminating additional evidence of

guilt, we are persuaded beyond a reasonable doubt that the jury

would have returned the same verdict even in the absence of the

DNA evidence.

6. Gonzalez has failed to establish prosecutorial or judicial

misconduct

Gonzalez argues the prosecution violated his due process

rights by asking two key witnesses — Rowan and Celina — a

series of leading questions. He contends the prosecution and the

trial court committed a second due process violation by coercing

those witnesses to say what the prosecutor wanted them to say.

Both claims lack merit.

a. Background

Rowan and Celina were both charged with conspiracy to

obstruct justice for having falsified an alibi for Gonzalez. Rowan

entered a guilty plea with an agreed upon sentence of up to three

years depending on the judge’s assessment of her veracity in

testifying at Gonzalez’s trial. Celina likewise pleaded guilty

with her agreed upon sentence contingent on testifying

truthfully at trial.

During her direct examination at trial, Rowan

acknowledged that she had previously testified in the case and

was facing sentencing for her obstruction charge. Through

much of the examination, the prosecutor asked questions

consisting of declarative statements followed by, “isn’t that

correct?” The prosecutor and the judge also repeatedly

admonished Rowan that she should answer the questions that

had been asked, and the judge gave Rowan’s attorney an

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opportunity to remind her of the importance of testifying

truthfully.

Similarly, in questioning Celina, the prosecutor asked a

series of narrative questions which she answered through “yes”

or “no” answers. Among other topics, the prosecutor asked

Celina about her conversations with police following her arrest

and repeatedly reminded her that she was under oath and had

to tell the truth. When Celina answered one such question with

a question — “Why do you keep asking me? He didn’t tell me

directly” — the trial court admonished her not to ask questions

and invited Celina’s counsel to talk with her. Outside the

presence of the jury, the court also reminded Celina that she was

under oath and then encouraged the prosecutor to refresh

Celina’s memory. When defense counsel objected that the court

was intimidating Celina, the judge replied, “Number one, she

will not ask questions of anybody. And number two, she shall

tell the truth, period. It’s that simple. That’s not intimidation.

That’s doing what’s right.” Following the exchange, Celina

repeatedly responded “yes” to a series of questions about what

she had previously told law enforcement about the crime.

b. Discussion

(i) The prosecution’s use of leading questions

Gonzalez first argues that the prosecution’s decision to

rely on leading questions during the direct examination of

Rowan and Celina constituted prosecutorial misconduct. “A

prosecutor’s conduct violates the Fourteenth Amendment to the

federal Constitution when it infects the trial with such

unfairness as to make the conviction a denial of due process.

Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state

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law only if it involves the use of deceptive or reprehensible

methods to attempt to persuade either the trial court or the

jury.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) A

trial court’s decision to allow leading questions is reviewed for

abuse of discretion. (See People v. Friend (2009) 47 Cal.4th 1,

39.)13

As a general matter, a “leading question may not be asked

of a witness on direct or redirect examination.” (Evid. Code, §

767, subd. (a)(1).) “ ‘ “A ‘leading question’ is a question that

suggests to the witness the answer that the examining party

desires.” [Citation.] Questions calling for a “yes” or “no” answer

are not leading unless they are unduly suggestive under the

circumstances.’ ” (People v. Collins (2010) 49 Cal.4th 175, 214.)

However, “ ‘ “leading questions are not always impermissible on

direct examination.” ’ ” (Ibid.) The Evidence Code permits their

use “under special circumstances where the interests of justice

otherwise require.” (Evid. Code, § 767, subd. (a)(1).) Applying

that exception, we have previously held that leading questions

are permissible when they “serve[] ‘to stimulate or revive [the

witness’s] recollection’ ” (People v. Williams (1997) 16 Cal.4th

635, 672), or when the examining party is faced with a hostile

witness. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1319

[prosecutor’s “use of leading questions, which necessarily

included stating facts she assumed the witness would affirm or

13

It is unclear from Gonzalez’s briefing whether he is

arguing that the use of leading questions constituted a form of

prosecutorial misconduct or that the trial court erred in

permitting such questioning or both. However, as discussed

below, regardless of the specific nature of his claim, we find no

error on the part of either the trial court or the prosecution with

respect to the use of leading questions.

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deny, was justified because [the witness] was . . . obviously

hostile”].) Trial courts have broad discretion to decide when

such special circumstances are present. (See Williams, at p.

672.)

While some of the prosecutor’s questions were leading, we

find that the method of questioning did not constitute

misconduct nor did the trial court abuse its discretion in

allowing the interrogation to proceed in such a manner. The

transcript shows that on many occasions, Rowan and Celina

claimed not to remember (or were willfully refusing to recall)

details about the prior statements they had made regarding the

crime. Indeed, at one point, Gonzalez’s own counsel

acknowledged Celina appeared to have difficulty remembering

precise details of events that had happened several years ago.

The record also supports an inference that Rowan and

Celina were sufficiently “hostile” to permit leading questioning.

Indeed, both witnesses acknowledged at the outset that it was

difficult for them to testify. Moreover, both witnesses had a

close relationship with Gonzalez and had previously lied to

police to protect him. Given the witnesses’ purported difficulty

in remembering what had occurred, the obvious inconsistencies

between their trial testimony and their prior statements to

police and their close relationship to Gonzalez, we find no error

in either the trial court’s decision to allow leading questions or

the prosecution’s use of such questions.

(ii) Admonishments to tell the truth

Gonzalez next contends that the trial court and the

prosecution unlawfully coerced Rowan and Celina into

providing testimony favorable to the prosecution. He identifies

several distinct categories of alleged misconduct, including: (1)

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on multiple occasions, both the trial court and the prosecution

reminded the witnesses they were testifying under oath and

were required to tell the truth; (2) after the witnesses had

repeatedly claimed they could not remember an event, the court

invited their attorneys to speak with them about answering

questions truthfully;14 (3) the prosecutor reminded Rowan of

prior statements she had made during the investigation; (4)

when presented with testimony that was inconsistent with prior

statements made during the investigation, the prosecution

asked Rowan if she understood that she was looking at three

years in prison.

We first consider whether the trial court engaged in

unlawful coercion by reminding the witnesses they were under

oath and inviting their respective attorneys to talk to them

about testifying truthfully. Gonzalez cites no case holding that

the mere act of reminding a witness she has an obligation to

testify truthfully, or inviting a witness’s counsel to discuss the

consequences of perjury with her client, qualifies as a due

process violation or otherwise constitutes misconduct. Indeed,

the case law is to the contrary. (Cf. People v. Harbolt (1988) 206

Cal.App.3d 140, 155 [no misconduct where prosecutor’s

“comments . . . amounted to a ‘mere warning’ about the dangers

14

The court invited Rowan’s attorney to remind her client

she was “supposed to be telling the truth and volunteering

answers without the prosecutor having to constantly remind her

of what her statements have been in the past.” After Celina

repeatedly testified that she could not remember whether

Gonzalez had said he was carrying a gun at the time of the

murder, and then asked the prosecutor why he kept asking her

that question, the trial court directed her not to ask the

prosecution questions and then asked Celina’s attorney whether

she would “wish to talk to [her] client.”

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of perjury”]; Williams v. Woodford (9th Cir. 2004) 384 F.3d 567,

603 [“ ‘merely warning a witness of the consequences of perjury’

does not unduly pressure the witness’s choice to testify or violate

the defendant’s right to due process”].)

The primary authority Gonzalez relies on, Webb v. Texas

(1972) 409 U.S. 95 (Webb), has little in common with this case.

In Webb, the trial court, acting in the presence of the jury, told

the defense’s only witness that he did not have to testify and

further directed that if he lied under oath, the court would

“personally see” to it that the grand jury would indict him for

perjury and that he would likely be convicted and sentenced to

several years in prison (and also impair his chances for parole).

(Id. at pp. 95–96.) After receiving this warning, the witness

chose not to testify. The Supreme Court found that such conduct

violated the defendant’s right to due process, explaining that the

“lengthy admonition” had gone far beyond merely warning the

witness of the “necessity to tell the truth,” and had instead used

“unnecessarily strong terms [that] could well have exerted such

duress on the witness’ mind as to preclude him from making a

free and voluntary choice whether or not to testify.” (Id. at pp.

97, 98.)

Nothing similar occurred here. The trial court in this case

merely called the witness’s attention to the importance of

testifying in a truthful manner and, outside the presence of the

jury, invited each witness’s counsel to consult with their client

about “telling the truth and volunteering answers without the

prosecutor having to constantly remind her of what her

statements have been in the past.” We see nothing in these

admonitions that was so extreme as to amount to a due process

violation.

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We likewise find that Gonzalez has failed to establish that

the prosecution engaged in unlawful coercion by reminding the

witnesses they were under oath, referencing prior statements

they had made to law enforcement and, on a single occasion,

inquiring whether Rowan was aware that she was facing a

three-year jail sentence. Again, Gonzalez cites no authority in

which similar statements were found to constitute prosecutorial

misconduct. The primary authority he cites is United States v.

Juan (9th Cir. 2013) 704 F.3d 1137, 1142 (Juan), which held

that under the “principles of Webb[, supra, 409 U.S. at page 95],”

a prosecutor’s “substantial and wrongful interference with

a . . . witness that . . . leads the witness to materially change his

or her prior trial testimony can . . . violate due process.” (Ibid.)15

We find nothing in the prosecution’s conduct that

amounted to “substantial and wrongful interference” with the

witnesses’ testimony. (Juan, supra, 704 F.3d at p. 1142.) When

faced with two hostile witnesses who had provided testimony

that was inconsistent with their prior statements to law

15

Gonzalez also cites People v. Medina (1974) 41 Cal.App.3d

438, which held that an immunity agreement requiring the

cooperating witness to provide testimony that was materially

identical to the statements he had previously made to police was

constitutionally impermissible. We have clarified that the

principles of Medina are implicated only when “the bargain is

expressly contingent on the witness sticking to a particular

version . . . .” (People v. Garrison (1989) 47 Cal.3d 746, 771.)

Rowan and Celina were not subject to any such requirement.

Instead, their plea agreements provided only that they would

testify truthfully. (See People v. Allen (1986) 42 Cal.3d 1222,

1252 [“although there is a certain degree of compulsion inherent

in any plea agreement or grant of immunity, it is clear that an

agreement requiring only that the witness testify fully and

truthfully is valid”].)

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enforcement, or otherwise claimed not to remember key aspects

of what they had told police, the prosecution reminded them of

their prior statements or their duty to testify truthfully. Those

reminders do not qualify as misconduct. Likewise, the isolated

question the prosecution asked Rowan about whether she

wanted to receive a three-year sentence was not so extreme as

to substantially interfere with her testimony or otherwise

“involve[] the use of deceptive or reprehensible methods.”

(Morales, supra, 25 Cal.4th at p. 44.) Under “the totality of the

circumstances” presented here (Juan, supra, 704 F.3d at p. 1142

[“substantial interference inquiry is [assessed] under the

totality of the circumstances”]), we find no witness interference

nor any misconduct in the prosecutor’s limited admonitions to

the witnesses.16

16

It is also unclear what prejudice Gonzalez could have

suffered from such conduct. Gonzalez’s central contention

seems to be that in the absence of the prosecution’s admonitions

about providing truthful answers, the witnesses might have

provided testimony that differed from what they had previously

told the police. But as the witnesses acknowledged at trial, they

had made several recorded statements to law enforcement along

with “a proffer under oath about things that occurred.” Thus,

had the witnesses testified in a manner that was inconsistent

with what they told police, which is apparently what Gonzalez

contends they would have done had the court and prosecutor not

“interfered” with them, the prosecution would have been able to

cross-examine them with their prior conflicting statements,

many of which were made under oath. The jury would therefore

know their current testimony conflicted with prior statements

they had made to law enforcement.

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7. The court did not improperly restrict cross-examination

Gonzalez also argues the trial court violated his right to

confrontation when it sustained objections during the cross-

examinations of Rowan and Celina. We find no error.

a. Background

During cross-examination, defense counsel asked Rowan

if she was concerned “whether or not [she was] going to get a

deal on [her] case” and if she was afraid of going to prison for

three years. She responded yes. Defense counsel then asked,

“You don’t want to go to prison for three years, do you?” Rowan

responded no.

Defense counsel then asked Rowan, “So you’re trying to

make sure that you say everything that the prosecutor wants

you to say, aren’t you?” The prosecution objected to the question

as argumentative, and the trial court sustained the objection.

Defense counsel attempted to reframe her question several

times, asking Rowan if she was giving testimony that she

thought would “be pleasing to the prosecutor”; whether she was

“trying to make sure [she said] anything that the prosecution

want[ed] [her] to say”; and whether she was concerned that she

would spend three years in prison if the prosecution “is not in

agreement with what [she] said.” The trial court sustained

objections to all these questions.

During a sidebar, defense counsel explained she was

trying to ask Rowan if the testimony she had provided on direct

examination was “tainted by the fact that if the prosecutor [is]

not in agreement, she will get her three years.” The trial court

stated, “You can ask her that. That’s a different question. You

can certainly ask her that, yes.” Following the sidebar, defense

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counsel asked Rowan, “Is your testimony here today given in

such a way that you feel will cause you not to get three years in

state prison?” Rowan answered yes. Defense counsel then

asked Rowan, “So you are concerned about what you say here

today may affect you in terms of getting the three years in state

prison?” Again, Rowan answered yes.

When cross-examining Celina, defense counsel engaged in

a similar line of questioning, inquiring whether she was

“concerned about [what] sentence [she] might get.” Celina

answered yes. Defense counsel then asked, “And you want to

agree with the prosecutor; isn’t that right?” The prosecution

objected to the question as argumentative, and the trial court

sustained the objection. Defense counsel asked Celina if the

prosecution “has some control over what kind of sentence you

get?” The prosecution objected on relevance grounds and the

trial court sustained the objection. Defense counsel then asked

Celina, “Do you feel that the prosecutor may make an argument

at your sentencing time with respect to what sentence you may

get?” Celina responded yes. Counsel also asked her if she

“want[ed] to give testimony that will help [her] out at [her]

sentencing.” Celina again answered yes.

b. Discussion

Gonzalez contends the trial court violated his right to

confrontation by improperly limiting the cross-examination of

Rowan and Celina. (See People v. Mora and Rangel (2018) 5

Cal.5th 442, 476 [a defendant “possesses a fundamental right to

confront the witnesses against [him]. [Citations.] Cross-

examination is a cornerstone of that fundamental right”].) To

establish such a claim, Gonzalez must show he was “prohibited

from engaging in otherwise appropriate cross-examination

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designed to show a prototypical form of bias on the part of the

witness.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

(Van Arsdall).) A trial court maintains “ ‘wide latitude insofar

as the Confrontation Clause is concerned to impose limits’ ” on

cross-examination. (People v. Mendez (2019) 7 Cal.5th 680, 703)

“ ‘ “[U]nless the defendant can show that the prohibited cross-

examination would have produced ‘a significantly different

impression of [the witness’s] credibility’ [citation], the trial

court’s exercise of its discretion in this regard does not violate

the Sixth Amendment.” ’ ” (People v. Pearson (2013) 56 Cal.4th

393, 455–456.)

Gonzalez argues the trial court improperly prevented

counsel from asking questions that were intended to show the

testimony Rowan and Celina provided on direct examination

was meant to “please the prosecutor” so that the prosecutor

“would not incarcerate them for three years.” The record shows,

however, that the defense was permitted to ask questions that

elicited that very information. After a sidebar, defense counsel

was permitted to ask Rowan whether she was worried that her

answers to the prosecutor’s questions might affect her “in terms

of getting three years in state prison” and whether she had

“given [her testimony] in such a way that . . . [would] cause [her]

not to get three years in prison.” She responded affirmatively to

both questions. Counsel was permitted to elicit similar

testimony from Celina, inquiring whether the answers Celina

had provided on direct examination had been made “to help

[her]self out at [her] sentencing.” Counsel was also permitted to

ask Celina whether she “want[ed] to give testimony that [would]

help [her] out at [her] sentencing.”

Thus, the record makes clear defense counsel was allowed

to ask Rowan and Celina questions that were intended to

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examine whether the answers they provided on direct

examination were tainted by their desire to secure a lesser

sentence. While the trial court prohibited the defense from

asking differently phrased questions that were meant to

examine that same issue, we fail to see how those questions

would have produced “a significantly different impression” (Van

Arsdall, supra, 475 U.S. at p. 680) of the witnesses’ credibility.

8. The trial court did not err in admitting Gonzalez’s

statements regarding a crime involving a Mercedes

Gonzalez argues the trial court should have excluded a

video clip in which he and undercover detective Javier Clift were

shown discussing a crime involving a Mercedes. In an earlier

portion of their recorded conversation (the admission of which

Gonzalez has not contested), Clift and Gonzalez discussed

Gonzalez’s participation in a serious, possibly capital, offense

that appeared to match the circumstances of Rosa’s murder. In

the clip Gonzalez challenges here, Clift asks Gonzalez why he

was transferred from prison. Gonzalez responded, “I hope it’s

for the Mercedes. I’ll be like, I’ll take it Your Honor. Give it to

me. How much 7, 10, 15, 20? Anything else.” Clift and another

detective who also heard Gonzalez discussing this crime both

described it as a “carjacking.”

Defense counsel argued the statements Gonzalez made in

the clip were inadmissible because they referenced another

crime that was unrelated to Rosa’s murder. The prosecution,

however, contended the statements qualified as a “form of

admission.” The trial court agreed, concluding that the evidence

was intended to show “a guilty frame of mind in that he’s hoping

his current incarceration is not for the murder of the named

victim in this case, but for a car theft instead. So that the other

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crimes evidence can be instructed away in the sense that the

jury would be advised they are not to consider it, but only

consider it as to his state of mind with respect to his knowledge

of this crime.” In response, defense counsel argued the clip

might be admissible if Gonzalez had referenced the murder, but

he had only mentioned the carjacking. The trial court disagreed,

explaining, “Well its implicit. It’s an adoptive admission. Even

if Gonzalez is not mentioning the murder, it is implicit that that

is what the discussion is about.”

On appeal, Gonzalez argues that the clip should have been

excluded because: (1) it was not relevant to the charged crime;

(2) the sole purpose of the evidence was to show Gonzalez’s bad

character (see Evid. Code, § 1101, subd. (a)); (3) Gonzalez’s

statements did not qualify as adoptive admissions and therefore

should have been excluded as hearsay; and (4) even if otherwise

admissible, the evidence was more prejudicial than probative,

and thus inadmissible under Evidence Code section 352. We

review each of these claims under the abuse of discretion

standard. (People v. McKinnon (2011) 52 Cal.4th 610, 655 [“On

appeal, we review for abuse of discretion a trial court’s ruling on

whether evidence is relevant, not unduly prejudicial, and thus

admissible”]; People v. Memro (1995) 11 Cal.4th 786, 864 [“We

review the admission of evidence under Evidence Code section

1101 for an abuse of discretion”]; People v. Rogers (2013) 57

Cal.4th 296, 326 (Rogers) [“ ‘ “Rulings made under [Evidence

Code sections 1101 and 352, including those made at the guilt

phase of a capital trial] are reviewed for an abuse of

discretion” ’ ”]; People v. Martinez (2000) 22 Cal.4th 106, 139

[“we apply the abuse of discretion standard when reviewing a

trial court’s decision that evidence falls within a hearsay

exception”].)

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“Relevant evidence is evidence ‘having any tendency in

reason to prove or disprove any disputed fact that is of

consequence to the determination of the action.’ [Citation.]

‘ “The test of relevance is whether the evidence tends, ‘logically,

naturally, and by reasonable inference’ to establish material

facts such as identity, intent, or motive.” ’ ” (People v. Wilson

(2006) 38 Cal.4th 1237, 1245.) We find no abuse of discretion in

the trial court’s determination that, understood in context,

Gonzalez’s statements regarding the carjacking tended to

establish his identity as a participant in Rosa’s murder. As

explained above, the recordings showed that before Gonzalez

referenced the carjacking, Clift and Gonzalez had been

discussing a serious crime that matched the circumstances of

Rosa’s murder. The fact that Gonzalez subsequently expressed

hope that he had been transferred to the prison for an unrelated

carjacking and would be pleased to be facing a sentence of only

20 years in prison, raises an inference that he committed the

more serious crime he had been discussing with Clift.

Moreover, contrary to Gonzalez’s assertions, the record

makes clear there was a purpose for introducing his statements

about the carjacking other than to show bad character or

disposition to commit the charged offense. As the trial court

explained, the statements tended to show that Gonzalez

believed the other crime he had committed, which matched the

circumstances of Rosa’s shooting, was a more serious crime.

(See Evid. Code, § 1101, subd. (b) [“Nothing in this section

prohibits the admission of evidence that a person committed a

crime . . . when relevant to prove some fact (such as

motive, . . . knowledge, [or] identity . . . ) other than his or her

disposition to commit such an act”].)

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We likewise find no abuse of discretion in the trial court’s

decision to admit the statement as a form of admission. While

perhaps inaccurately described as an adoptive admission (which

is generally understood to mean a “statement [made] by

someone other than the defendant . . . if the defendant ‘with

knowledge of the content thereof, has by words or other conduct

manifested his adoption [of] or his belief in its truth’ ” (People v.

Davis (2005) 36 Cal. 4th 510, 535)), the statement was clearly

admissible under Evidence Code section 1220 as a “statement[]

of a party.” (People v. Horning (2004) 34 Cal.4th 871, 898

(Horning); see ibid. [declining to consider the defendant’s

assertion that statement did not qualify as a “statement[]

against interest” because the statement was “clearly”

admissible as the “statement[] of a party”].) While “sometimes

referred to as the exception for admissions of a party,” Evidence

Code section 1220 “covers all statements of a party, whether or

not they might otherwise be characterized as admissions.”

(Horning, at p. 898, fn. 5, italics omitted; see Davis, at p. 535

[“[a] defendant’s own hearsay statements are admissible”].)

Because Gonzalez was the declarant of the statement and the

statement was offered against him, it was not inadmissible

under the hearsay rules. (See Horning, at p. 898 [hearsay rule

does not bar statements when the “ ‘defendant was the

declarant, the statements were offered against him, and he was

a party to the action’ ”].)

Finally, we find no abuse of discretion in the trial court’s

determination that the evidence was more probative than

prejudicial. (See Rogers, supra, 57 Cal.4th at p. 326.)

“ ‘Prejudice for purposes of Evidence Code section 352 means

evidence that tends to evoke an emotional bias against the

defendant with very little effect on issues, not evidence that is

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probative of a defendant’s guilt.’ ” (People v. Valdez (2012) 55

Cal.4th 82, 133.) Our courts have acknowledged that “[a]

limiting instruction can ameliorate section 352 prejudice by

eliminating the danger the jury could consider the evidence for

an improper purpose.” (People v. Hendrix (2013) 214

Cal.App.4th 216, 247; see People v. Coffman and Marlow (2004)

34 Cal.4th 1, 83 [juries are presumed to follow the trial court’s

instructions].)

In this case, the trial court acknowledged it would provide

a limiting instruction directing the jury that evidence of other

crimes was not relevant for bad character or predisposition.

Moreover, the “other crime” referenced in the video clip was far

less inflammatory than the murder Gonzalez was being tried

for; indeed, Gonzalez’s videotaped statements described the

incident involving the Mercedes as merely taking someone “for

a little ride.” (See People v. Case (2018) 5 Cal.5th 1, 41 [“The

danger of undue prejudice is . . . lessened if evidence of the

uncharged acts was ‘no more inflammatory than the testimony

concerning the charged offenses’ ”].) Gonzalez, in turn, has

provided no explanation why the probative value of this other

crimes evidence was substantially outweighed by the probability

that it would create a substantial danger of undue prejudice.

Instead, he merely states in conclusory fashion that the other

crimes evidence would be more prejudicial than probative. (Cf.

Bryant, supra, 60 Cal.4th at p. 382 [“reject[ing] . . . conclusory”

arguments raised in defendant’s brief]; People v. Sanghera

(2006) 139 Cal.App.4th 1567, 1573 [“Perhaps the most

fundamental rule of appellate law is that the judgment

challenged on appeal is presumed correct, and it is the

appellant’s burden to affirmatively demonstrate error”].) For all

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those reasons, Gonzalez has failed to establish the trial court

abused its discretion in admitting the clip.

9. Gonzalez has failed to establish any error regarding the

admission of oral testimony describing the

conversations depicted in the video clips

Gonzalez argues the trial court erred when it allowed

several of the detectives who participated in the undercover

operation to testify about the conversations depicted in the video

clips that were shown to the jury. The testimony was intended

to provide context about how the conversations arose, clarify

what was being discussed, and explain the meaning of certain

slang terms. As one example, the prosecution asked a testifying

detective to identify who he understood Gonzalez to be talking

about in a video clip where Gonzalez references “the White boy.”

The detective testified that Gonzalez was referring to Flint and

then explained his basis for that belief. In another exchange, a

detective was asked what he was referring to in a portion of a

video where the detective was heard saying, “it’s got to come out

sooner or later.” The detective responded that he was referring

to “the murder of Rosa,” and then explained that he had been

talking about that subject with Gonzalez for the entire day. The

detectives also explained the meaning of certain slang terms like

“hooda” (a police officer (see ante, at p. 5)) and “cappa” (a person

who has committed a crime that would subject him to capital

punishment (ibid.)).

Gonzalez initially contends that the detectives’ testimony

violated the “secondary evidence rule” (People v. Goldsmith

(2014) 59 Cal.4th 258, 269), which generally prohibits the

admission of oral testimony to prove the content of writings.

(See Evid. Code, §§ 1521, 1523; People v. Panah (2005) 35

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Cal.4th 395, 475 (Panah) [a videotape is a writing for purposes

of the secondary evidence rules].) We disagree.

First, it is undisputed that the jury was shown the

writings in question (in this case videos), and Gonzalez has cited

no case in which the secondary evidence rule was applied when

the writing itself was admitted into evidence. (See Panah,

supra, 35 Cal.4th at p. 475 [“The purpose of the best evidence

rule is ‘to minimize the possibilities of misinterpretation of

writings by requiring the production of the original writings

themselves, if available’ ”]; People v. Son (2020) 56 Cal.App.5th

689, 696 [“Defendant has not pointed to any case in which the

secondary evidence rule was applied even though the writing

itself was admitted into evidence, nor are we aware of any such

case”].) Second, as the trial court observed, the purpose of the

detectives’ testimony was not to prove the actual words that

were said in the video, but rather to give general context as to

the subject matter of the conversations that were depicted in the

recording and explain the meaning of some of the terms the

speakers used. (See Son, at p. 1170 [officer’s testimony

“highlight[ing] important details” of a video were not intended

to prove the content of the writing and thus did not violate

secondary evidence rule].)

Gonzalez separately contends that even if the secondary

evidence rule is inapplicable, the detectives’ testimony

describing the nature of the conversations shown on the videos

“served only to ‘invade the province of the jury,’ which was

perfectly capable of drawing their own conclusion” about the

subject matter of those conversations. Although Gonzalez has

not identified exactly which statements he believes should have

been excluded, we understand his claim to challenge those

portions of the detectives’ testimony in which they conveyed

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what they understood Gonzalez to be discussing during certain

parts of the video.17

We will assume Gonzalez has preserved this claim and

reject the argument on its merits.18 “A lay witness may testify

to an opinion if it is rationally based on the witness’s perception

and if it is helpful to a clear understanding of his testimony.”

(People v. Farnam (2002) 28 Cal.4th 107, 153, citing Evid. Code,

§ 800.) “A trial court’s ruling on the admission or exclusion of

[such] evidence is reviewed for abuse of discretion.” (People v.

DeHoyos (2013) 57 Cal.4th 79, 131.) The detectives’ description

of what they understood Gonzalez to be discussing was based on

the prior conversations they had overheard in the holding cell.

Thus, the testimony was clearly predicated on their personal

observations. Moreover, the trial court could reasonably

conclude such testimony aided the jury in understanding what

the detectives believed they had observed. Gonzalez has cited

no authority finding similar testimony — i.e., witness

17

Gonzalez’s brief clarifies that he is not challenging the

portion of the detectives’ testimony explaining “certain gang

terms that had to be translated so that the jury could

understand their meaning.”

18

Although Gonzalez’s brief cites to numerous pages in the

trial transcript where defense counsel made objections during

the detectives’ testimony, the record shows that most of those

objections are unrelated to the argument he presents

here (“objection, that’s vague”; “objection, that would be

speculation”; “[this testimony] is cumulative”; “objection,

leading”). In only one instance did Gonzalez object to a

statement on the basis that the witness had improperly

conveyed “a conclusion.” (See People v. Marks (2003) 31 Cal.4th

197, 228 [“A general objection to the admission . . . of evidence,

or one based on a different ground from that advanced at trial,

does not preserve the claim for appeal”].)

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statements that merely explain the context of a conversation —

to be inadmissible. We find no abuse of discretion in the trial

court’s decision to admit what amounted to lay opinion

testimony.

B. Penalty Phase Issues

1. Gonzalez has failed to establish error with respect to the

admission of his statements referencing other crimes

Gonzalez challenges the admission at the penalty phase of

two video clips recorded during the undercover operation.

a. Background

Gonzalez sought to exclude a video clip in which he made

statements “concerning his participation in some otherwise

unspecified carjacking involving a Mercedes.” The defense

objected on the grounds that: (1) the video was cumulative of

evidence the prosecution had presented during the guilt phase;

and (2) the evidence only tended to prove a general propensity

to commit crime. The prosecution argued the video was

admissible as evidence of criminal activity involving the use of

force (see § 190.3, factor (b)). The trial court overruled the

objection.

Gonzalez also challenged the admission of a video clip in

which he told an undercover officer he had been involved in 27

armed robberies as a juvenile. Defense counsel objected that

although the video contained a statement in which Gonzalez

referenced having committed 27 robberies, the prosecution only

intended to introduce corroborating evidence of some of those

incidents. Counsel argued that because the prosecution had

provided no “foundation for these so-called 27 robberies,” and

could not “prove the corpus on all of these 27 robberies,” it was

improper to admit a statement referencing that number of

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robberies. The trial court agreed it was improper to include the

portion of the statement referencing 27 robberies since the

prosecution did not actually intend to prove each of those

robberies. The court provided the prosecution the option of

deleting the reference to the number of robberies or excluding

the clip altogether. The prosecution explained that it intended

to remove the portion of the clip referencing the number of

robberies and defense counsel posited no further objection. The

prosecution thereafter played the two clips and presented

several witnesses who testified about a carjacking involving

Gonzalez and numerous robberies that he was believed to have

committed.

b. Discussion

On appeal, Gonzalez argues that that while evidence of

criminal activity involving the use of force is generally

admissible at the penalty phase (see § 190.3, factor (b)), the trial

court should have excluded the video clips referencing the

carjacking and the string of robberies under the corpus delicti

rule, which applies to the use of factor (b) crimes. (See Valencia,

supra, 43 Cal.4th at pp. 296–297; see ante, at pp. 15–16

[explaining the corpus delicti rule].) According to Gonzalez, the

prosecution failed to identify any evidence apart from his own

statements indicating that the carjacking or the robberies

actually occurred.

The Attorney General argues that Gonzalez has forfeited

any argument that such evidence was inadmissible under the

corpus delicti rule because he failed to raise any such objection

at the trial court. We agree that Gonzalez has forfeited the

particular claims he raises here. Regarding the recorded

statements referencing a carjacking, defense counsel never

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raised a corpus delicti objection. (See Horning, supra, 34

Cal.4th at p. 899 [defendant forfeited argument that “the

prosecution did not establish the corpus delicti of the [uncharged

offense]”].)

Regarding the video referencing the robberies, defense

counsel made it clear he was objecting to the portion of the video

in which Gonzalez stated that he had committed 27 robberies.

Such evidence was improper, defense counsel asserted, because

the prosecution only intended to present independent evidence

of some of those robberies, and thus “could not prove the corpus

on all . . . 27 robberies.” The trial court agreed and made the

prosecution remove the reference to the number of robberies. If

defense counsel believed this was an insufficient remedy, and

that the video clip should be excluded even with that

modification, it had a duty to raise that argument with the court.

Moreover, the prosecution presented sufficient evidence to

establish the corpus delicti of both a carjacking and multiple

robberies. Regarding the carjacking, the prosecution presented

testimony from a victim who stated that he had been taken to a

house where he was carjacked. A detective testified the victim

of the carjacking had picked Gonzalez out of a photo array.

When describing the carjacking incident to undercover agents,

Gonzalez had stated that the carjacking victim had been

brought to a house, which matched the victim’s description of

the incident. Finally, Rowan testified that after Gonzalez had

told her about the carjacking, she had seen him driving a car

that was similar in appearance to the one he had described to

her.

Regarding Gonzalez’s admission that he had committed

robberies as a juvenile, the prosecution presented testimony

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from numerous victims who were robbed at gunpoint along with

testimony from an investigating officer verifying that several of

the victims had identified Gonzalez as the perpetrator. (See

ante, at p. 10.) This evidence justified the admission of

Gonzalez’s statement that he had committed multiple

robberies.19

2. The improper aspects of the victim impact video were

harmless

Gonzalez challenges the admission of an eight-minute

video in which Rosa’s friends and colleagues provided emotional

statements lauding their relationship with her and describing

the pain and loss they experienced from her death. Many of the

participants spoke from a cemetery with music playing in the

background. At times, the audio of the participant’s tributes

was juxtaposed with photos of Rosa. Several of the participants

in the video also provided victim impact testimony during the

penalty phase of the trial.

In assessing Gonzalez’s objection to the video, the trial

court explained that it did “not find [the video] dramatic or of

the sort that would cause one to cry,” nor did the video contain

19

Gonzalez’s contention that his admissions regarding the

carjacking and his prior robberies should have been excluded

also appears to rely on an aspect of the corpus delicti rule that

has been abrogated. As noted above (see ante, at p. 16, fn. 3),

we have previously held that article I, section 28, subdivision (d)

of the California Constitution abrogated the corpus delicti rule

“insofar as [it] restricts the admissibility of incriminatory

extrajudicial statements by the accused.” (Valencia, supra, 43

Cal.4th at p. 297, italics added.) Thus, the rule no longer

operates to exclude evidence of a defendant’s extrajudicial

statements. (Ibid. [“the corpus delicti rule no longer prevents

admission of the confession”].)

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“irrelevant information or inflammatory rhetoric that diverted

the jury’s attention from its proper role or invite an irrational,

purely subjective response.” In the court’s view, the video was

not “highly emotional in any sense. None of [the people in the

video] seemed anything other than smiling and happy

reminiscing about a lost friend or lost relative depending upon

who was talking.” The court also rejected the argument that

individuals in the video were cumulative of those same

witnesses testifying in court.

Although we have not adopted any “bright-line rules”

(People v. Prince (2007) 40 Cal.4th 1179, 1288) “pertaining to the

admissibility of videotape recordings of victim interviews”

(ibid.), we have warned that “courts must exercise great caution

in permitting the prosecution to present victim-impact evidence

in the form of a lengthy videotaped or filmed tribute to the

victim” (id. at p. 1289). While it is appropriate to use a video

“ ‘ “ ‘reminding the sentencer . . . [that] the victim is an

individual whose death represents a unique loss to society’ ”

[citation], . . . the prosecution may not introduce irrelevant or

inflammatory material that “ ‘diverts the jury’s attention from

its proper role or invites an irrational, purely subjective

response.’ ” ’ ” (People v. Kelly (2007) 42 Cal.4th 763, 794

(Kelly).) We have highlighted some characteristics of victim

impact videos that can be especially problematic: “Particularly

if the presentation lasts beyond a few moments, or emphasizes

the childhood of an adult victim, or is accompanied by stirring

music, the medium itself may assist in creating an emotional

impact upon the jury that goes beyond what the jury might

experience by viewing still photographs of the victim or listening

to the victim’s bereaved parents.” (Prince, at p. 1289.) Whether

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the admission of such evidence constitutes error must be

considered “under the circumstances” of each case. (Ibid.)

While we normally review for ourselves the content of such

videos, we accord some deference to the trial court’s decision to

admit the tape when, as here, the record confirms that the court

viewed the videotape, considered its possible improper

emotional effects and exercised its discretion to allow it. (See

People v. Zamudio (2008) 43 Cal.4th 327, 366 (Zamudio).)

Where the videotape includes impermissible elements, we

assess whether those elements separated from the permissible

features of the videotape prejudiced defendant. (See Kelly,

supra, 42 Cal.4th at pp. 798–799.)

We have viewed the videotape and find that it does contain

some improper features. The music in the video has no apparent

relevance other than to enhance the emotional effect of the

video. (See People v. Sandoval (2015) 62 Cal.4th 394, 442

(Sandoval) [“because background music in victim impact

presentations provides no relevant information and is

potentially prejudicial, it is never permitted”]; Kelly, supra, 42

Cal.4th at p. 798.) Many of the individuals in the video offering

testimonials are in a cemetery, and the camera moves toward

them at times to draw attention to their emotional responses.

(See ibid. [“Trial courts must not permit irrelevant . . . video

techniques that enhance the emotion of the factual

presentation”; “The videotape must . . . not present a ‘staged

and contrived presentation’ ”].) Because these features of the

video had no apparent purpose other than to increase the

viewer’s emotional response, the trial court should have ordered

the prosecution to remove them.

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However, “we find ‘no reasonable possibility’ that the jury

would have reached a different penalty verdict if [these

objectionable features] had been omitted.” (Sandoval, supra, 62

Cal. 4th at p. 442.) During the penalty phase, the prosecution

presented voluminous testimony from many witnesses

describing numerous violent crimes that Gonzalez had

perpetrated against them. Those crimes involved a string of

armed robberies that occurred in 1994, two shootings that

occurred in 2006 (one of which left the victim with five bullet

wounds), an armed carjacking and an attack on a prison guard.

(See ante, at pp. 10–11.) Moreover, apart from the victim impact

video, the jury heard extensive in-person victim impact

testimony from coworkers, friends and family members, some of

whom also appeared in the video. Those witnesses described,

among other things, Rosa’s strong work ethic, her bright and

kind personality, her willingness to help other people and their

profound sense of loss when she was killed. Rosa’s partner

described how they met, their life together and their plans for

adopting a child. Rosa’s sister described their close relationship

and Rosa’s early life. (See ante, at p. 12.) Accordingly, even

without the video, the jury would have heard much of the same

type of emotional testimony. Given all this evidence, “we see no

reasonable possibility [that the objectionable] portions of the

videotape affected the penalty determination.” (Kelly, supra, 42

Cal.4th at p. 799.)20

20

Gonzalez also argues that the video impermissibly called

for vengeance. Because the video contains no explicit calls for

vengeance, we reject the claim. (See Kelly, supra, 42 Cal.4th at

p. 797 [“the tape expressed no outrage over her death, just

implied sadness. It contained no clarion call for vengeance”].)

70

PEOPLE v. GONZALEZ

Opinion of the Court by Groban, J.

3. Constitutionality of the death penalty

Gonzalez challenges the constitutionality of California’s

death penalty statute and implementing statutes on numerous

grounds that we have previously rejected. We decline to

reconsider our previous holdings that:

(i) “ ‘[T]he California death penalty statute is not

impermissibly broad, whether considered on its face or as

interpreted by this court’ ” (People v. Dalton (2019) 7 Cal.5th

166, 267 (Dalton));

(ii) “ ‘section 190.3, factor (a), on its face or as interpreted

and applied, [does not] permit arbitrary and capricious

imposition of a sentence of death’ ” (Dalton, supra, 7 Cal.5th at

p. 267);

(iii) “ ‘[t]he death penalty statute does not lack safeguards

to avoid arbitrary and capricious sentencing . . . or constitute

cruel and unusual punishment on the ground that it does not

require either unanimity as to the truth of aggravating

circumstances or findings beyond a reasonable doubt that an

aggravating circumstance (other than Pen. Code, § 190.3, factor

(b) or (c) evidence) has been proved, that the aggravating factors

outweighed the mitigating factors, or that death is the

appropriate sentence.’ [Citation] Nothing in Hurst v. Florida

(2016) 577 U.S. [92] . . . , Cunningham v. California (2007) 549

U.S. 270 . . . , Blakely v. Washington (2004) 542 U.S.

296, . . . , Ring v. Arizona (2002) 536 U.S. 584 . . . ., or Apprendi

v. New Jersey (2000) 530 U.S. 466 . . . , affects our conclusions in

this regard” (Dalton, supra, 7 Cal.5th at p. 267);

(iv) “ ‘[w]ritten findings by the jury during the penalty

phase are not constitutionally required, and their absence does

71

PEOPLE v. GONZALEZ

Opinion of the Court by Groban, J.

not deprive defendant of meaningful appellate review’ ” (Dalton,

supra, 7 Cal.5th at p. 268);

(v) “ ‘[t]he federal constitutional guarantees of due process

and equal protection, and against cruel and unusual

punishment [citations], do not require intercase proportionality

review on appeal’ ” (Dalton, supra, 7 Cal.5th at p. 268);

(vi) “ ‘ “capital and noncapital defendants are not similarly

situated and therefore may be treated differently without

violating” a defendant’s right to equal protection of the laws, due

process of law, or freedom from cruel and unusual punishment’ ”

(Dalton, supra, 7 Cal.5th at p. 268);

(vii) “ ‘ “[t]he death penalty as applied in this state is not

rendered unconstitutional through operation of international

laws and treaties” ’ ” (Dalton, supra, 7 Cal.5th at p. 268);

(viii) “the trial court [is not] constitutionally required to

instruct the jury that section 190.3’s mitigating factors [can] be

considered only as mitigating factors and the absence of

evidence supporting any one should not be viewed as an

aggravating factor” (People v. Duff (2014) 58 Cal.4th 527, 570).

C. Cumulative Error

Gonzalez contends the cumulative effect of errors at the

guilt and penalty phase requires reversal. As discussed above,

for purposes of the guilt phase, we have assumed that the

admission of portions of Juli Watkins’s testimony regarding the

DNA evidence was error but conclude that any such error was

harmless beyond a reasonable doubt. There are no other errors

to cumulate with respect to guilt.

For purposes of the penalty phase, we have found that

certain aspects of the victim impact video submitted at the

72

PEOPLE v. GONZALEZ

Opinion of the Court by Groban, J.

penalty phase may have been unduly emotional or cumulative

of other testimony but conclude that any error was harmless

beyond a reasonable doubt. There are no other errors to

cumulate with respect to penalty.21

III. DISPOSITION

The judgment of the superior court is affirmed.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

21

Although Gonzalez’s opening brief asserts that “guilt

phase errors that may not be prejudicial to the guilt phase may

nevertheless improperly and adversely impact the jury’s penalty

determination,” he has provided no argument or explanation

regarding how any of the purported errors that he contends were

committed in the guilt phase impacted the penalty

determination. (See People v. Gamache (2010) 48 Cal.4th 347,

378 [rejective cumulative error claim where defendant failed to

show how error that “had no impact on the guilt verdict” “could

have affected the penalty phase verdict”].)

73

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Gonzalez

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published)

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S163643

Date Filed: December 2, 2021

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Joan Comparet-Cassani

__________________________________________________________

Counsel:

Glen Niemy, under appointment by the Supreme Court, for Defendant

and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Lance E.

Winters, Assistant Attorney General, Keith H. Borjon, Jaime L.

Fuster, Eric J. Kohm and Lindsay Boyd, Deputy Attorneys General, for

Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Glen Niemy

11 Prescott Street #2

Salem, MA 01970

(207) 699-9713

Lindsay Boyd

Deputy Attorney General

300 S. Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6012