Opinion

People v. Ramirez

Court
California Supreme Court
Filed
Aug 25, 2022
Status
Published
Cited by
0 cases
Authority
More cited than 1.3%

The opinion

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN VILLA RAMIREZ,

Defendant and Appellant.

S099844

Kern County Superior Court

SC076259A

August 25, 2022

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Liu, Kruger,

Groban, Jenkins, and Guerrero concurred.

Justice Groban filed a concurring opinion, in which Justice Liu

concurred.

PEOPLE v. RAMIREZ

S099844

Opinion of the Court by Corrigan, J.

Juan Villa Ramirez1 was convicted of a variety of crimes

on three separate occasions. Those sets of convictions were as

follows: 1. Robbery of Leonel Paredes, kidnapping during the

commission of carjacking and for purposes of ransom, during

which Paredes was exposed to a substantial likelihood of death,

and three enhancements for personal firearm use;2 2. Robbery

and kidnapping during the commission of carjacking of Juan

Carlos Ramirez;3 3. Carjacking, kidnapping with intent to

commit robbery, and first degree murder of Chad Yarbrough,

with special circumstances for killing during kidnapping and

carjacking, and three personal firearm use enhancements. 4

1

We adopt defendant’s name as it appears in the trial court

below and in defendant’s briefing before us. We note, however,

that defendant’s name appears as Juan de Dios Ramírez Villa

in litigation before the International Court of Justice. (Case

Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)

2004 Judgment, I.C.J. 12, 25 (Mar. 31) [litigant #20].) We mean

no disrespect by adopting the name used in his briefing.

2

Penal Code sections 212.5, subdivision (c), 209.5, 209,

subdivision (a), and 12022.5, subdivision (a). All statutory

references are to the Penal Code unless otherwise stated.

3

Sections 212.5, subdivision (c) and 209.5. Defendant was

acquitted of a separate count of carjacking. (§ 215, subd. (a).)

4

Sections 215, subdivision (a), 209, subdivision (b)(1), 187,

subdivision (a), 190.2, subdivision (a)(17)(B) and (L), 12022.5,

subdivision (a).

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In addition to these offenses, separate counts charging

methamphetamine possession and possession of a firearm under

the influence of that drug5 were bifurcated. Following the

capital trial a separate jury convicted defendant of the drug

offenses, but acquitted him on the weapons allegation. The jury

returned a verdict of death for the murder and that sentence

was imposed. In addition, the court imposed consecutive

sentences of life without the possibility of parole for the Paredes

kidnapping for ransom; two terms of life with the possibility of

parole for the kidnappings of Ramirez and Yarbrough; and a

total consecutive determinate term of 21 years. Additional

determinate terms and orders were imposed and are not

challenged in this appeal. Sentences on all counts except the

murder were stayed pending appeal.

We affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

a. Crimes Against Paredes

Late on October 4, 1997, Paredes parked his car near his

apartment in Lamont and was approached by three men.

Defendant placed a shotgun on his chest, Efrain Garza pointed

a revolver, and the third man held a knife below his ear.

Defendant demanded Paredes’s car keys, saying he would be

hurt if he did not cooperate. Duct tape was placed over his eyes

and mouth, and used to secure his hands and feet. Garza took

5

Health and Safety Code sections 11370.1, subdivision (a),

11550, subdivision (e).

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Opinion of the Court by Corrigan, J.

his keys and wallet.6 Paredes was ordered to lie in the back seat

of his car and was held at knifepoint as the car drove off.

Paredes could tell from the voices around him that defendant

was the driver.

After driving for about 15 minutes, Paredes was moved to

the trunk. After another 10 or 15 minutes, the car was parked

in a garage. Paredes remained locked in the trunk for four to

five hours while the men tried to negotiate a $500 ransom from

Paredes’s cousin and uncle. During that time, the trunk was

occasionally opened. Paredes was hit in the face, held with a

shotgun to his neck, and forced to talk to his uncle on the phone.

At some point, the abductors drove to another location with

Paredes still in the trunk. The abductors left in a second car,

warning Paredes not to call the police or his family would be

harmed. Paredes managed to remove the tape, open the trunk,

call his uncle, and report the incident to police.7 One latent

fingerprint was lifted from the trunk lid of Paredes’s car. It did

not match defendant.

b. Crimes Against Juan Carlos Ramirez

On October 14, 1997, defendant was at Efrain Garza’s

house in Lamont, along with Garza, Hector Valenzuela, Freddy

De La Rosa, Daniel Quintana, and defendant’s cousin, Carlos

Rosales. Juan Carlos8 arrived at the house next door to

6

Garza was initially a codefendant, but his case was

severed from that of the defendant.

7

Evidence concerning Paredes’s identification of defendant

is discussed in further detail post at part II.B.5.

8

Defendant and the victim Ramirez are, apparently, not

related but share the same last name. To avoid confusion, we

refer to the victim by his given name.

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purchase drugs from someone named “Shannon.” Valenzuela

and De La Rosa approached him and Valenzuela demanded a

ride at gunpoint. Valenzuela got into the cab of Juan Carlos’s

truck while De La Rosa got in the back. Juan Carlos drove about

a half mile to a field, where Valenzuela and De La Rosa took

personal belongings, including his watch, necklace, and a charm

with “Juan” engraved on it.

The three men got back in the truck and De La Rosa drove.

Near Shannon’s house, De La Rosa hit a parked car and told

Juan Carlos to drive. The other four individuals who had been

at Garza’s house were walking down the street, and De La Rosa

called out to them to get in the truck. Those men were

defendant, Garza, Quintana, and Rosales.

Valenzuela pointed a pistol at Juan Carlos and told him to

drive to an orchard. Upon arrival Valenzuela then ordered Juan

Carlos out of the truck. Defendant, Valenzuela, De La Rosa, and

Garza got out also. They demanded money, but Juan Carlos

denied having any. When a search of his wallet proved

otherwise, the men beat him. Defendant asked for the gun so

he could kill him. Defendant said he was the devil, and that if

Juan Carlos said anything, defendant would cut off parts of his

body and shove them in his mouth. Defendant took the victim’s

belt and struck him on the back with it. The beating continued,

after which defendant bound the victim with rope. After the

men left in his truck, Juan Carlos untied himself, walked to a

friend’s house, and called the police.

Rosales was called by the prosecution and corroborated

much of the victim’s testimony. He admitted that he and the

others got into the truck at De La Rosa’s invitation. Valenzuela

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Opinion of the Court by Corrigan, J.

had a gun.9 At the orchard, Rosales stayed in the truck with

Quintana, while the others got out. Garza pulled out a pistol-

grip 12-gauge firearm. Valenzuela took some money, a belt, and

jewelry. Valenzuela was angry because Juan Carlos had lied

about having no money. Valenzuela and Garza both hit Juan

Carlos with their guns, and defendant, along with De La Rosa

and Garza, beat him. Juan Carlos was then dragged toward the

orchard and tied up. At the time of trial Rosales’s memory for

detail was unclear. He had testified at the preliminary hearing

that defendant beat Juan Carolos with a belt and later bound

the victim with rope defendant took from the truck.

Quintana also testified for the prosecution. He said that

everyone who got out of the truck at the orchard beat Juan

Carlos. Although Quintana had said in an interview that

defendant was the first to hit the victim, his recollection at trial

was that they all assaulted him at the same time. After the

beating, defendant got a rope from the truck and bound the

victim. Quintana believed that defendant was the oldest of the

six perpetrators, and that he and Garza were the leaders of the

group.

The attackers left Juan Carlos in the orchard then drove

to a park where Valenzuela divided the stolen money. Each man

received about $10. Valenzuela kept the necklace, but gave the

charm with “Juan” engraved on it to defendant.

After dividing up Juan Carlos’s property, the group

stopped at a food truck. Afterward, defendant, along with

Rosales and Quintana, went first to Rosales’s house then on to

9

On cross-examination, Rosales testified that the first time

he saw the gun in Valenzuela’s hand was when Valenzuela got

out of the truck at the orchard.

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Opinion of the Court by Corrigan, J.

Quintana’s, where Garza and Willie Santiago met them.

Defendant had been using methamphetamine all day and began

drinking at Quintana’s.

c. Murder of Chad Yarbrough10

The murder occurred on the same day as the Juan Carlos

crimes. It arose against the backdrop of conflict between groups

who lived in two communities outside Bakersfield: the city of

Arvin and unincorporated Lamont. While defendant and his

associates were at Quintana’s, defendant cleaned a Tec-9

handgun, loaded it, and wrapped it in a shirt.11 About two hours

later, Garza said he saw Chad’s truck. As described more fully

below, there had been animosity between defendant’s family

and Chad. Defendant and Garza went outside and approached

the truck. Rosales testified he heard the sound of a gun cocking

and saw Chad’s younger brother get out of the truck. After

Garza got in on the passenger side and defendant got behind the

wheel, the truck drove off.

In October 1997, Chad and Brent went to Arvin High

School. Chad was a senior and Brent a freshman. Chad would

drive them to and from school in his white truck. On October

14, the brothers went to football practice, and visited Chad’s

girlfriend, Carolina Castro. Brent described what transpired as

Chad drove away from Castro’s home. Two Hispanic men

confronted them in the middle of the road. When they waived

Chad down he stopped and rolled down his window. The men

10

Chad and his younger brother, Brent, share a last name.

To avoid confusion, we will refer to them by their given names.

11

Rosales had seen defendant with the gun before and had

seen Garza shoot it. When he fired it once or twice, the gun

jammed.

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Opinion of the Court by Corrigan, J.

talked like they knew each other, but Brent did not hear what

they said.

Defendant said his name was Loco. The other man pulled

out a gun and ordered both brothers to get out of the truck, but

defendant told Chad to stay put. Chad said, “I’m Cool,” or words

to the effect that everything was okay. The other man told Brent

to sit on the curb. Both men got in the truck with Chad between

them. Defendant was driving. A large man approached and told

Brent to stay on the curb and say nothing. A second man stood

nearby. Brent sat on the curb for 30 to 45 minutes, until the

men left. He then ran to Castro’s house and told her to call the

police because his brother had been kidnapped.

The same evening, the Yarbrough family searched for

Chad. At around 1:30 a.m., his uncle found Chad’s body in a

field. He wore only his underwear. Black electrical tape covered

his eyes and part of his nose; shoelaces bound his hands behind

his back. Autopsy surgeon Donna Brown discovered three fatal

gunshot wounds to the head. Dr. Brown opined that if the

weapon had been fully automatic, the entry wounds would have

been closer together and all on the same side of the head. The

absence of stippling meant the weapon was at least two feet

away when it was fired. Chad’s body had scratches and

irritation on his knees, chest, right arm, and lower leg. One of

his fingers was swollen. The imprint of gravel indicated he had

collapsed to his knees at some point.

Investigators found three spent bullets, three cartridge

casings, and three live rounds at the crime scene. The casings

and the spent bullets had been fired from the same gun, and the

three live rounds had been ejected from that gun as well. Based

on the location of the spent bullets and casings, criminalist

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Gregory Laskowski opined that (1) the shooter was moving

while firing, and (2) the shooting was inconsistent with fire from

a fully automatic weapon.

Evidence about defendant’s activities before and after the

murder was presented. Rosales recounted how defendant and

Garza approached the truck, ordered Brent out, and drove off

with Chad sitting between them. Defendant’s cousin, Isabel

Garcia, initially told police that she saw defendant and Gabriel

Flores in Chad’s truck that night. Her attention was drawn to

the truck because defendant waved and yelled to her from the

passenger seat. She drew investigators a diagram to show

where the encounter happened. At trial, she disavowed her

statement. Thirteen-year-old Joamy Garza was staying at a

house of someone called Chepa, where runaway girls stayed and

young men visited. At trial, she recalled that two people she

knew as Baby and Loco came to the house in a white truck. She

told police that she went cruising with the two men. She

subsequently identified defendant in a photographic lineup, but

would not sign it.

Chad’s truck was found in a Bakersfield garage. It

appeared the stereo had been removed, and the truck bore red

primer paint. Salvador Saldivar, who pleaded guilty to

receiving a stolen truck, testified that he went to Chepa’s house

late on October 14 or early on October 15, 1997, to pick up a

white truck. He drove to a garage where he painted the truck

red. He did not recall talking to young men about the truck, and

did not recall identifying anyone. Deputy Moore testified that

Saldivar admitted to him that he saw a man named Baby with

the truck, and that Baby said the truck was stolen. Baby was

with another man named Loco. Saldivar identified defendant as

Loco when shown a photographic lineup.

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Ten months later on July 19, 1998, Kern County Sheriff’s

Sergeants Rosemary Wahl and Glenn Johnson interviewed

defendant in El Paso, Texas. Defendant claimed no involvement

in the abduction and murder and denied using drugs in October

1997. He admitted he joined a Lamont gang as a young teen,

but left the gang around 1995.

On July 24, 1998, defendant was interviewed again in

Bakersfield. He told Wahl and Johnson that when he was

partying at Quintana’s house, he was not waiting for Chad to

come by. He was planning to leave because he was “already on

the run for jumping bail.” He said he was using

methamphetamine and hashish at Quintana’s. He admitted

stopping Chad and asking if he knew who defendant was. Chad

repeatedly said he did not and finally started to get out of his

truck, but defendant pushed him back in. He and Garza made

Brent get out and defendant drove away. He first stopped near

a gas station where he “slapped the bitch.” Asked why he did

so, defendant said, “I was telling him it wasn’t a game to be

playing around with gangbangers . . . .”

Then they drove to the field and got out of the truck.

Garza told Chad to remove his shoes and bound his hands with

black tape. Planning to leave Chad in the field and take his

truck, they promised him he would not be harmed. They made

him disrobe, to embarrass him and force him to walk home in

that condition.

Defendant had the unloaded gun with him; Garza went to

the truck to get the clip. Defendant’s intent was to scare Chad

because of an incident involving defendant’s cousin, Rosales,

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and because Chad “was banging for Arvin.”12 Chad was sitting

on the ground as defendant inserted the clip. Defendant did not

know there was a round in the chamber, and as he was trying to

put the clip in, he pressed the trigger and discharged the

weapon. Because it was dark, he did not know where Chad had

been hit.

He and Garza drove off, throwing Chad’s clothes out the

window on the way. They gave the truck to “some guys” who

were at “some pad.” They partied there for two or three hours,

hitchhiked to Santa Clarita, and threw the gun away near

Pyramid Lake. They parted ways in Santa Clarita, and

defendant fled to Mexico. He did not learn that Chad had died

until five or six months later.

The officers also asked defendant about the crimes against

Juan Carlos. He said that “they had jumped me like a couple

[of] days before that.” He recounted, “we were at Baby’s

[Garza’s] house” when Juan Carlos parked across the street.

“He was in the pickup saying some shit I guess that’s what the

neighbors told us and then we took the truck from him and took

off and we dumped him out in the fields and left him.”

Deputy Sheriff Robert Contreras, a liaison officer with the

Gang Suppression Unit, identified two local street gangs:

Lamont 13 and Weedpatch 13. The Mexican Mafia uses the

number 13, which stands for the letter M, and is also associated

12

As described below, the defense presented evidence of a

conflict involving Carlos Rosales and an incident during which

brothers Jose and Freddy Gomez, along with Chad, threw

sandbags and other items at Rosales’s house and car. After

defendant said in his interview that Chad was “banging for

Arvin,” he described the incident and referred to the Gomez

brothers as “Arvin [B]oys.”

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with the southern part of California. Lamont 13 has two

subsets: Varrio Chico Lamont (VCL) and Lamont Familia

Sureños (LFS). He testified that defendant, De La Rosa,

Quintana, Garza, Valenzuela, Rosales, and Flores belong to LFS

and that Santiago belonged to VCL. He identified photographs

of defendant’s tattoos, including “LFS,” “13,” “Lamont,” and

“Sur.” He testified that LFS initiated new gang members at

Myrtle Avenue School. Contreras had seen defendant and

others at the school. Garza had apparently just been initiated.

The court instructed the jury this gang evidence was admitted

solely for purposes of identification, motive, or intent.

2. Defense Evidence

Defendant offered an alibi for the evening Paredes was

kidnapped. In October 1997, Ashley Medina was dating

defendant’s cousin, Rosales. Medina testified that on October 4,

1997, the evening of the Paredes kidnapping, she had been at

the Kern County Fair, arriving home around 8:30 p.m. Around

9:00 p.m., Rosales and defendant came over. They talked and

watched movies, then defendant fell asleep. Medina and

Rosales retired about 2:00 a.m.; Rosales and defendant left her

house between 12:30 p.m. and 1:00 p.m. the next day. To

Medina’s knowledge, defendant did not leave the house before

that time. Rosales also testified that defendant spent the night

at Medina’s.

Defendant challenged Paredes’s identification of his

assailants. Efrain Garza’s brother, Jesus, testified about a

conversation with Paredes’s cousin, Rosalio. Rosalio related

that Paredes said he was unsure of Garza’s identification.

Dr. Scott Fraser, an eyewitness identification expert,

testified about factors that can affect identification accuracy. He

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explained that if there was a light source behind an approaching

assailant, as occurred in the kidnapping of Paredes, the

accuracy of the victim’s identification could be reduced. The

greater the number of individuals involved, the less accurate the

recognition of a single person. The presence of a weapon reduces

accuracy because it distracts the witness and causes stress.

As to Chad’s murder, the defense presented evidence of an

incident in September 1997. Chad and brothers Jose and

Freddy Gomez were friends. One day, as Jose was driving down

a road in Lamont, a car in which Carlos Rosales was riding

pulled up. Jose was told to pull over. When he did so the other

car blocked him in. Gabriel Flores (Gooney) ran up and swung

a knife at Jose. Around midnight that night, Chad drove Jose

and Freddy to Carlos Rosales’s house in Lamont. Chad and Jose

each picked up a sandbag and threw it at a car in the driveway.

Rosales’s mother, Maria Villa, came outside and Jose asked in a

respectful voice whether Rosales was there. Told he was not,

Jose asked her to tell Rosales that Jose had stopped by. Jose

denied doing or saying anything else before leaving, but his

brother Freddy testified that Jose told Ms. Villa to inform

Rosales that he was “going to kick his ass.”

Maria Villa is Rosales’s mother and defendant’s aunt. She

awoke to the noise of the men hitting her car with sandbags.

She did not know any of them, but subsequently learned Chad’s

name from television reports. One of them said Rosales had

fought with him and cut his arm. Chad said he was looking for

Rosales and was told he was not at home. Chad shouted for

Rosales to come outside. He tried to push Villa, but she stepped

back. During these events, Villa’s nieces, ages 11 and 12, and

her infant grandson, were in the house, and the girls were

frightened. Villa wrote down part of the license plate, which

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included “CYA.” Chad’s truck had a personalized license plate:

CYARBRO.

Defendant was in jail at the time of the Rosales incident,

but was released a week or two before Chad was killed. Maria

Villa’s son, Alejandro Saenz, told him about the incident,

including the attempt to shove Ms. Villa. Saenz also told

defendant about the license plate and asked him to find out who

had come to the house that night. Saenz further testified, “All

of us were raised together”; defendant “got really upset” when

he was told about the incident. Before October 14, defendant

told Saenz he knew whose truck had come to Villa’s house, and

defendant “said that it was taken care of.”

Defendant testified. He denied any part of the Paredes

kidnapping, admitted he assaulted Juan Carlos, and admitted

he shot Chad but did so by accident.

Defendant lived in Lamont until 1995, and attended Arvin

High School for about a year and a half. While there, Arvinas

gang members would jump him, making him fear for his safety.

In late 1994, someone shot at his house while his mother was

there, and someone threw a Molotov cocktail at the home. He

thought the Arvin Boys were responsible.13

After leaving Lamont, defendant lived in Phoenix for two

years with his fiancée and their two children. He attended a

design school and junior college. In May or June 1997, his

fiancée left him and he lost his job as a forklift operator. In

13

Quintana, who was 16 years old in 1997, lived in Lamont

and was bused to Arvin High School. He and others who were

bused to Arvin had trouble there just because they were from

Lamont.

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addition, tumors on his tongue and neck caused severe

headaches, unrelieved by over-the-counter medications.14

In June 1997, defendant purchased a Tec-9 firearm

altered to be fully automatic. After a three- or four-round burst,

the gun would jam, and a shell would have to be ejected. When

he returned to Lamont in August 1997, he left the gun in

Arizona. Sometime later, an ex-roommate brought the gun to

Visalia.

Defendant was arrested in August 1997 for possession of

methamphetamine and spent 30 days in jail. After his release

on bail, his cousin, Alex Saenz, told him that people in a white

truck had gone to his aunt’s house creating the disturbance

described above. Defendant told Saenz something had to be

done about the attack and retrieved the Tec-9 gun.

Defendant was experiencing pain from his tumors and was

depressed because he had lost his fiancée, home, children, and

job. He took drugs and was high most of the time, staying awake

for two or three days using methamphetamine. He came to

believe that Chad and the Gomez brothers attacked his aunt’s

house. He testified that the three ran around with the Arvin

Boys. Based on his experience, he thought if nothing was done

about their attack, his aunt might be harmed.

Defendant denied abducting Leonel Paredes. On October

4, he went with his cousin, Carlos Rosales, to the home of Ashley

Medina, arriving between 8:30 and 9:00 p.m., and staying there

until 1:00 or 2:00 p.m. on October 5.

14

As described below, defendant had vascular tumors on his

tongue and neck.

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As to the attack on Juan Carlos, defendant testified he was

at Garza’s house with Garza, Rosales, Quintana, De La Rosa,

and Valenzuela. Over the preceding two days he had been

consuming methamphetamine, phencyclidine (PCP), and

alcohol. That morning he consumed marijuana,

methamphetamine, and two 40-ounce bottles of Cobra malt

liquor. A truck drove up to Shannon Brown’s house next door.

Valenzuela and De La Rosa got in the truck, which drove away.

Fifteen or 20 minutes later, the truck returned and hit a car in

front of the neighbor’s house. De La Rosa told Juan Carlos to

settle the damage by telling Shannon to keep the money he owed

Juan Carlos for drugs. Then they told defendant, Quintana,

Rosales, and Garza to get in the back of the truck. Defendant

did not know where they were going or that Valenzuela and De

La Rosa had abducted Juan Carlos. He thought he was

“[g]etting a ride somewhere.”

In the truck, defendant told De La Rosa that Rosales

wanted to be dropped off. De La Rosa told him they were going

to take care of “something” and did not respond when asked

what the something was. They stopped on a canal bank and

defendant tried to find out what they were doing. De La Rosa

said that Juan Carlos had beaten up his sister. Angered by this

revelation, defendant hit Juan Carlos two or three times. He

and Valenzuela bound Juan Carlos, but did nothing else to him.

After they drove back to town, Valenzuela gave him $20 and a

medallion with “Juan” etched on it, and told him to give $10 to

Rosales.

Defendant went to Quintana’s house later in the afternoon

and ingested alcohol and narcotics. He had his Tec-9 with him.

People in the house played with the gun, inserting and ejecting

the clip. At some point, someone said: “There’s that guy.” He

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did not know what they meant, but walked outside and saw a

truck drive by. He and Garza, who had the Tec-9, approached

the truck. Defendant spoke to Chad who said he did not know

defendant. Chad opened the door and defendant got into the

driver’s seat. At Garza’s direction, Brent got out of the truck

and Garza entered it. Defendant wanted to scare and embarrass

Chad, get him to admit what he had done, and protect his aunt.

He did not intend to hurt Chad. Defendant was drunk and high,

slurring his words, and unable to think straight.

While they drove around, Garza told Chad to take his

clothes off. Defendant had heard that the Gomez brothers were

Arvin Boys, and told Chad he should not be hanging around with

gangbangers. Chad admitted trying to run down Rosales, but

denied being part of the incident at his aunt’s house. His

demeanor upset defendant, who said they would not hurt Chad

and would leave his truck where he could find it.

Defendant was still drunk and high, and had difficulty

thinking. At some point they stopped in a field. Garza secured

Chad’s hands, while defendant paced, trying to decide what to

do. He tried to scare Chad with the gun but Chad would not

admit the confrontation with his aunt. Defendant asked Garza

to get the clip from the truck.

Still intending to frighten Chad, he began to load the clip

into the weapon. In the process the gun fired. He was not

aiming the gun, and did not know there was a round in the

chamber. Chad fell to the ground and did not move. Defendant

was confused, unsure what to do, and did not think there was

anything he could do for Chad. He drove the truck to

Bakersfield and walked to his aunt’s house, as Garza left in the

truck. Defendant denied driving around with Joamy Garza. He

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stayed at his aunt’s house until morning, sitting by a window

and smoking “dope.” He was panicked and hallucinating, seeing

officers everywhere. He and Garza hitchhiked to Los Angeles,

and defendant threw the gun away en route.

Pathologist Barry Silverman opined that Chad’s wounds

were inflicted instantaneously by automatic gunfire.

Considering where the spent casings and spent bullets were

found, Dr. Silverman concluded that Chad’s head could not have

been on the ground when he was hit.

Criminalist Ronald Helson, testified that a Tec-9 may be

modified to be fully automatic. He thought Chad’s wounds were

consistent with automatic weapons fire. The shooter would have

to have been an expert marksman to have fired single shots

causing equidistant head wounds. A semi-automatic weapon

modified to be automatic no longer functions as designed. The

magazine spring may not have sufficient tension to load rounds

in the chamber as quickly as rounds are fired, which could cause

the gun to jam.

Dr. Stephen Estner diagnosed defendant with multiple

hemangiomas, or “vascular tumors that grow from and feed into

arteries and veins in certain parts of the body.” Defendant had

a tumor on his tongue and a mass in his right neck. Dr. Estner

expressed concern that jugular vein pressure would cause

deoxygenated blood to back up in the right brain, causing pain

and affecting brain function. In addition, tumors in his throat

pressed on both the internal jugular vein and carotid artery.

Dr. David Bearman testified that defendant’s

hemangioma caused pain and decreased blood flow to the brain.

Dr. Bearman also opined that defendant suffered from

depression; sleep deprivation; polysubstance abuse; and acute

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stress disorder along with posttraumatic stress. The combined

impact of drug use and sleep deprivation would affect judgment,

coordination, and perception.

Clinical psychologist Francisco Gomez met with defendant

three times over seven hours. He also interviewed defendant’s

mother and older brother, and reviewed school records along

with other documents. Based on cognitive and intelligence tests,

he diagnosed defendant with low level chronic depression and

polysubstance abuse, which he employed to cope with his

depression. Defendant experienced multiple stressors from

June to November 1997, including a drug arrest, and the loss of

his fiancée, job, and apartment. These factors exacerbated his

depression, increasing his drug use. The drugs compromised his

decision making.

Professor Jose Lopez testified about criminal street gangs.

He identified Arvina gang graffiti five blocks from defendant’s

mother’s house, which was in Lamont gang territory. Conflict

between the Arvin and Lamont communities dated back to 1958,

when a high school was established in Arvin and students from

Lamont were bused there. There were active gang members in

Arvin and Lamont in 1997, but Dr. Lopez opined that defendant

was not among them. He based his conclusion on the fact that

LFS was defunct as of 1994 or 1995, and defendant, who was 21

years old in 1997, was associating with 15-year-olds. Lopez

concluded that Chad’s killing was not gang related. In his view,

machismo culture would put pressure on a man to avenge an

attack in the middle of the night by a rival group.

3. Prosecution Rebuttal

Neuroradiologist Matthew Lotysch described the highly

redundant system of arteries and veins that carry blood to and

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from the brain. He disagreed with Dr. Estner’s opinions that

the hemangiomas would affect vessels in defendant’s neck and

impede blood drainage from the brain. He also testified that

defendant’s hemangiomas did not in any way compromise his

ability to breathe. He saw no physical evidence in this case or

in his experience that such masses impair blood supply to the

brain when a person’s blood pressure is elevated due to stress or

drug use. The withdrawal phase from methamphetamine is

itself accompanied by chronic headaches. He agreed, however,

hemangiomas could put pressure on nerves, causing discomfort.

Criminalist Gregory Laskowski reviewed Dr. Silverman’s

testimony and concluded that Silverman lacked knowledge of

ballistics. He testified that the pattern in which the bullet

casings dispersed suggested the shooter moved while firing. He

asserted that Mr. Helson’s testimony did not consider where the

bullet slugs were found, and without that information, no valid

opinion could be given as to whether the shots were fired by an

automatic or semiautomatic weapon.

Sergeant Rosemary Wahl interviewed Maria Villa on

October 30, 1997. Wahl asked whether the men who came to

her house had threatened her or tried to harm her. Villa

responded that they did not.

B. Penalty Phase

1. Prosecution Evidence

Defendant was arrested on August 22, 1997, in a

Bakersfield apartment. He was found in a bedroom with

methamphetamine and a loaded handgun nearby. He admitted

the drugs and weapon were his.

Evidence was also presented about the murder of Javier

Ibarra in March 1995. Alma Mosqueda testified she was at

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home with Ibarra and Christina Ramirez. Defendant’s brother,

Cipriano Ramirez, called her to ask if he could come over and

“take care of business.” Because Cipriano and Ibarra had fought

about Christina in the past, Mosqueda suspected something bad

was going to happen. Five or ten minutes later, as Mosqueda

was walking the couple through the parking lot, Cipriano,

Gabriel Flores, and defendant arrived and blocked Ibarra’s car.

At Cipriano’s direction the women went back inside. Mosqueda

looked back and saw Ibarra spread his hands out like he was

calling somebody out to fight. She could not see the parking lot

from her apartment, but heard four or five shots, a pause, and

then one final shot. She ran out to find Ibarra face down on the

grass with a fatal gunshot wound in the back of his head. The

car in which the three men arrived was leaving.

Testimony varied as to defendant’s attire the night Ibarra

was killed. Jesse Ibarra, the victim’s brother, testified that

when he visited Mosqueda the next morning, she said defendant

had been wearing a white hat.15 Mosqueda testified, however,

that she did not remember that conversation. She also testified

that Gabriel Flores was wearing a white hat when the three men

confronted Ibarra. About two days after the killing Sheriff’s

Deputy Daniel Fuqua arrested defendant wearing a white

baseball cap. Gerardo Soto, defendant’s uncle, testified that the

evening Ibarra was killed, defendant was wearing a cap but it

was not white. He told Deputy Contreras the night of the

shooting that defendant was wearing a dark Pendleton shirt and

a blue baseball cap.

15

As noted below, the defense presented evidence that the

shooter was wearing a white cap.

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Chad’s girlfriend, brother and mother gave victim impact

testimony. Almost daily Chad and Castro discussed their hopes

for the future. Chad wanted to play college football, then become

a physical education teacher and coach. The couple had planned

to marry and picked names for their future children.

Brent did not return to school for many weeks after the

murder and his grades dropped. He had trouble sleeping and

still experienced nightmares. He went nowhere alone for fear

that something would happen to him. He blamed himself, in

part, for his brother’s death, feeling he should have done

something to prevent it.

Chad’s mother, Cheryl Yarbrough, had three children:

Melissa, Chad, and Brent. The family had been quite close,

doing everything together. After Chad died, the family seldom

dined together and gave up family trips. Melissa moved from

the house and everyone kept to themselves. They all attended

counseling. Ms. Yarbrough described her son as caring,

compassionate, and fun-loving. He loved to joke with his

mother.

2. Defense Evidence

Defendant also presented evidence about the Ibarra

killing. Ysela Nunez saw the crime from her second-story

window. A car drove up and three men approached a group of

two “girls” and a man. The girls walked away, and the men

fought briefly. Two of the attackers jumped back, and the third

man shot the man who had been with the girls. The shooter

wore a white hat; black pants; and a Pendleton shirt, checkered

in black, white, and grey. The second man wore coveralls, and

the third man wore blue jeans and a blue shirt. Nunez did not

recognize defendant in court.

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Defendant’s mother and grandmother described his

childhood. He was born in Guadalupe, Chihuahua, Mexico,

where his parents worked in the fields. The family was very

poor, and sometimes went without food. His father was an

alcoholic who was violent toward his wife and children. After

the parents separated, Angelita moved with her five children to

Bakersfield. Defendant was about one year old at that time,

sickly and thin. They lived in a three-bedroom house with about

15 to 20 others. They moved to Lamont after an uncle was killed

in the house. Defendant’s mother worked in the fields eight to

nine hours a day, six days a week, for 11 years to support her

children. Lorenzo, the oldest son, was rough with the younger

children and would beat them. When defendant was a child, he

had a tumor on his tongue that grew larger over time. When

defendant was nine years old, he worked cleaning yards and

delivering newspapers, giving his earnings to his mother.

In high school, students called defendant “stupid from

Lamont.” His mother intervened but school staff were not

helpful. Items, including a Molotov cocktail, were occasionally

thrown through their windows. Defendant began using drugs

at about age 14.

Other relatives testified about the scarcity of food and the

older brother’s abuse. His uncle would sometimes hit defendant

in the head, then say how tough he was. Relatives testified the

defendant loved his two daughters and wrote letters to them.

The parties stipulated that if Chad’s girlfriend were called

as a witness, she would testify that she and Chad once drove by

Carlos Rosales’s home. Chad said he and the Gomez brothers

had once gone to the house where Chad and “Luis” dented

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Carlos’s car. 16 She saw the car but did not see any damage.

Chad told her they tried unsuccessfully to break a window with

a rock.

Dr. Stephen Estner returned in the penalty phase and

testified that defendant’s hemangiomas pressed on more nerves

in the neck than Dr. Lotysch recognized. In addition to cranial

nerves described by Dr. Lotysch, the vagus nerve travels from

the brain to the gastrointestinal system and also branches off to

the heart, controlling its rate and rhythm. Pressure in the area

could affect the respiratory system and mental function. The

pressure would vary with the size of the mass. While he

generally agreed with Dr. Lotysch’s testimony, he thought

headaches, lightheadedness, and facial swelling were caused by

obstruction of some vascular structures. Methamphetamine

use, along with fear and anger, could cause enlargement of the

mass by raising defendant’s blood pressure. The enlargement

also causes difficulty speaking, and when a person has difficulty

speaking, he might take action rather than use words. Other

physiological effects can also occur due to the obstruction of

blood flowing in and out of the brain.

Dr. Francisco Gomez, Jr., who previously testified that

defendant suffered from chronic depression, testified about risk

factors for depression in an impoverished Hispanic community.

These include physical abuse and “severe neglect, poverty, low

socioeconomic status, [and] culturative stress.” Clinical

depression affects “social functioning — how you see the world,

how you act, how you behave, how you perceive things.”

Exposure to violence is a high-risk factor for depression. Very

16

Jose Gomez’s middle name was Luis.

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young children can be affected by these environmental factors.

Stimulants like methamphetamine provide some relief from

depressed feelings.

Dr. Jose Lopez also returned to testify about gang culture.

When parents are absent, children may be “subjected to street

socialization,” which functions like a “surrogate parent.” In the

Latino family, there is emphasis on the male image. Older

siblings do not have the authority of a parent, and may use

violence to discipline younger children. Respect is very

important in Latino and gang culture. No value attaches to

walking away from a fight. If a female relative is treated

discourteously, a manly reaction involving aggression is

required.

The parties stipulated that the defendant received no drug

or gang counseling when out of custody and had not joined a

prison gang following his arrest.

C. Bifurcated Trial on Counts 10 and 11

A new jury was empaneled to hear evidence on count 10,

unlawful possession of methamphetamine while armed with a

loaded gun (Health & Saf. Code, § 11370.1, subd. (a)); and count

11, possession of a loaded gun while under the influence of that

drug (Health & Saf. Code, § 11550, subd. (e)). The testimony

was substantially similar to that introduced at the penalty

phase, recounting defendant’s arrest in an apartment with

methamphetamine and a loaded handgun. When arrested,

defendant admitted both items were his. He showed signs of

drug use which was confirmed by urine test.

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II. DISCUSSION

A. Pretrial Issues

1. Motion To Disqualify the Prosecutor’s Office

Defendant moved to disqualify the Kern County District

Attorney’s Office on two grounds: (1) prosecutors had adopted

inconsistent theories about who was the shooter in the Javier

Ibarra murder; and (2) Chad’s aunt, Diana Yarbrough, was a

supervising clerk for the Kern County Municipal Court, with a

close relationship to the District Attorney’s Office. The motion

was denied and defendant urges the ruling was an abuse of

discretion. No error appears.

Under section 1424, subdivision (a)(1), a motion to

disqualify the district attorney “may not be granted unless the

evidence shows that a conflict of interest exists that would

render it unlikely that the defendant would receive a fair trial.”

This court has interpreted that standard to mean “ ‘the

circumstances of a case evidence a reasonable possibility that

the DA’s office may not exercise its discretionary function in an

evenhanded manner,’ ” making it unlikely the defendant will

receive fair treatment “ ‘during all portions of the criminal

proceedings.’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 592

(Eubanks), quoting People v. Conner (1983) 34 Cal.3d 141, 148

(Conner).) Defendant bears the burden of demonstrating a

conflict of that nature. (Haraguchi v. Superior Court (2008) 43

Cal.4th 706, 709.) We review the superior court’s factual

findings for substantial evidence, then determine whether those

facts demonstrate the court abused its discretion in denying the

motion. (Id. at pp. 711–712.) An erroneous denial is state law

error reviewed for prejudice under the Watson standard. (People

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v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Vasquez

(2006) 39 Cal.4th 47, 66–70 (Vasquez).)

Defendant’s motion was litigated based on declarations

and exhibits. Transcripts showed that, in the separate trials of

Gabriel Flores and Cipriano Ramirez, the Kern County District

Attorney’s Office argued Flores personally shot Ibarra and that

Cipriano was an aider and abettor.

Each man was convicted of murder. Significantly, Flores’s

jury rejected an allegation that he personally used a firearm.

In support of the motion to disqualify, defense counsel

declared his belief that, in the penalty phase, the prosecutor

would argue defendant shot Ibarra, relying on testimony of

Cipriano Ramirez to that effect, which the prosecutor in the

Cipriano trial had disavowed as false. Defendant argued that

these circumstances demonstrated a conflict of interests because

the prosecutor in this case (1) was motivated by personal and

emotional bias against defendant; (2) was representing

conflicting interests; and (3) had adopted a strategy that would

require the defense to call several members of the district

attorney’s office as witnesses to rebut the allegation that

defendant was the shooter.

As for the victim’s aunt, Diana Yarbrough, defense counsel

declared that she “is a supervising clerk in the [Kern County]

Municipal Court” with an office in the same building as the

district attorney’s. Counsel alleged “upon information and

belief” that the close working relationship between the two

offices “has compromised the impartiality of the Office of the

District Attorney in this matter.”

In opposition, the People stated their intent, during the

penalty phase, to present evidence of defendant’s involvement

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in the Ibarra murder for which his brother Cipriano, and friend,

Gabriel Flores, had both been convicted. The People

acknowledged that defendant’s “degree of actual involvement

differs depending on which witnesses statements (including his

own brother) one chooses to believe. He clearly has culpability

as a co-principal in that crime by all accounts. [¶] The People

intend to present all of the evidence of defendant’s involvement,

and let the jury decide what to believe as to his degree of

culpability.” The People relied upon People v. Watts (1999) 76

Cal.App.4th 1250 to urge that they could permissibly “argue

inconsistent and even mutually exclusive theories in separate

trials of co-defendants so long as the evidence was subject to

different interpretations or had changed.” They argued that the

former prosecutors were not appropriate witnesses because

“their subjective personal theories of their respective cases are

irrelevant and inadmissible.” They represented that, in the

event a conflict arose from presenting inconsistent theories, “we

won’t put on Cipriano’s testimony [from his own trial]. We will

just go with the theory on aiding and abetting, which certainly

is not inconsistent with either of the theories of those prior

prosecutions.”

As to Diana Yarbrough, the People declared that she “has

never worked for the District Attorney’s Office. She has no

closer relationship to the District Attorney’s Office than any

other court employee. [¶] Her office is not within the District

Attorneys’ Office nor even on the same floor of the building. As

a ‘supervising’ clerk she does not even have daily contact with

deputy district attorneys in the courtroom. [¶] Her only

interaction on this case has been as a member of the victim’s

family and not as a court employee.”

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The trial court did not abuse its discretion in finding that

the defense failed to carry its burden.

Defendant’s allegation of inconsistent theories did not

establish a conflict of interests sufficient to warrant recusal of

the district attorney’s office. The prosecutor relied on legal

authority to urge that he could argue defendant shot Ibarra so

long as the evidence was subject to different interpretations.

The argument did not demonstrate a lack of integrity or

impartiality warranting recusal. The remedy for the

prosecutor’s misapprehension, if any, was to restrict the People

to arguing, as they had in previous trials, that defendant was an

aider and abettor, making him equally guilty. We discuss in

detail below defendant’s separate claim that the prosecutor

deprived him of a fair penalty phase verdict by presenting

inconsistent theories of guilt in separate trials. (Pt. II.C.1.,

post.) Here, it suffices to note that the prosecutor did not

ultimately introduce Cipriano’s prior testimony identifying

defendant as the shooter. Defense counsel conceded below that

the prosecutor’s agreement not to present such evidence would

alleviate the alleged conflict. This record fails to establish that

the prosecutor acted in such an uneven manner as to make it

unlikely that defendant would receive a fair trial. (Eubanks,

supra, 14 Cal.4th at p. 592.)

The court’s ruling as to Diana Yarbrough was, likewise,

well within its discretion. A personal relationship between the

victim or a defendant and the district attorney’s office may

require disqualification, particularly where there is evidence

that the relationship has influenced the prosecutor’s

discretionary decisions. (See, e.g. Vasquez, supra, 39 Cal.4th at

pp. 52, 57; Conner, supra, 34 Cal.3d at pp. 148–149.) Here,

however, Ms. Yarbrough did not work for the district attorney’s

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office, did not share space with that office, and did not have daily

contact with deputy district attorneys in the courtroom. The

fact that the victim’s aunt was a county court employee, without

more, did not warrant the “serious step” of recusing the entire

district attorney’s office. (People v. Hamilton (1989) 48 Cal.3d

1142, 1156.)

2. Change of Venue

Defendant contends that conducting his trial in Kern

County violated his statutory right to a change of venue (§ 1033,

subd. (a)) and his constitutional right to a fair trial by an

impartial jury under the Sixth and Fourteenth Amendments to

the United States Constitution. He argues that pervasive media

coverage of the crimes, false rumors, and the victim’s popularity

in the community raised a reasonable likelihood that 12

impartial jurors could not be impaneled. He fails to persuade.

a. Governing Principles

On a defendant’s motion, the court must order a change of

venue when a reasonable likelihood appears “that a fair and

impartial trial cannot be had in the county.” (§ 1033, subd. (a);

see People v. Famalaro (2011) 52 Cal.4th 1, 21.) This

requirement was adopted in response to a series of Supreme

Court cases in the 1960’s recognizing that media publicity about

a criminal trial could, in some circumstances, deprive the

defendant of due process. (People v. Peterson (2020) 10 Cal.5th

409, 438 (Peterson).) Courts must weigh five factors in

evaluating this claim: “the nature and gravity of the offense,

the nature and extent of the news coverage, the size of the

community, the status of the defendant in the community, and

the popularity and prominence of the victim.” (People v. Harris

(1981) 28 Cal.3d 935, 948; accord, Peterson, at p. 439.)

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On appeal, a defendant “must show both error and

prejudice, that is, that it was not reasonably likely the defendant

could receive a fair trial at the time of the motion, and that it is

reasonably likely he did not in fact receive a fair trial.” (People

v. Rountree (2013) 56 Cal.4th 823, 837 (Rountree).) “[I]n rare

and ‘exceptional cases,’ a defendant may show circumstances so

‘ “extraordinary” ’ that a court may assume no fair trial could be

had.” (Peterson, supra, 10 Cal.5th at p. 439, quoting People v.

Prince (2007) 40 Cal.4th 1179, 1216 (Prince).) The United States

Supreme Court has occasionally found such a showing adequate

in cases where media coverage “manifestly tainted a criminal

prosecution” and resulted in “ ‘kangaroo court proceedings.’ ”

(Skilling v. United States (2010) 561 U.S. 358, 379 (Skilling).)

But the high court has made clear that the assumption “attends

only the extreme case.” (Id. at p. 381.)

“[W]e accept the trial court’s factual findings where

supported by substantial evidence, but we review independently

the court’s ultimate determination whether it was reasonably

likely the defendant could receive a fair trial in the county.”

(Rountree, supra, 56 Cal.4th at p. 837.)

b. Proceedings Below

Defendant moved for a change of venue in May 2000, two

and a half years after the crimes occurred. Materials provided

in support included transcripts of television broadcasts and

excerpts from newspaper coverage. In addition, Dr. Edward

Bronson, a professor of political science at California State

University, Chico, testified about the media coverage and a

survey conducted in January 2000 to assess coverage impact.

Defendant and Garza were originally charged together, but the

cases were ultimately severed. Dr. Bronson’s analysis included

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potential jurors’ views of both defendants. He did not always

disaggregate the information as to views about each defendant

when calculating his statistics. Based on his research, training,

and experience, Dr. Bronson opined there was a reasonable

likelihood that the jury panel would be affected by pretrial

publicity and that no remedy other than a change of venue

would be adequate.

Dr. Bronson testified that 225 articles were published

about the case in the Bakersfield Californian, the Lamont

Reporter, and the Arvin Tiller. Of those articles, 133 were from

1997, 72 from 1998, 19 from 1999 and one from 2000. There

were 97 articles on the front page of the paper; 30 more were on

the front page of an interior section. Coverage included 24

letters to the editor and three editorials. Dr. Bronson

characterized this level of media coverage as “very high.”

Dr. Bronson described several kinds of prejudice.

Inflammatory publicity is of the greatest concern, followed by

inadmissible or inaccurate reporting, and coverage reflecting a

presumption of guilt. He noted approximately 20 references to

an execution-style slaying, emphasizing the brutality of

shooting a kneeling victim in the head. References to torture

were later discounted. Other details included Chad’s fear, being

forced to disrobe, having tape over his eyes, and being on his

knees. Defendant reportedly admitted intending to humiliate

the victim in retaliation for an act of disrespect against a

relative. The media also made numerous references to

carjackings and gang activities. Dr. Bronson could not

determine whether the reporting was inadmissible or

inaccurate. As to a presumption of guilt, reports noted that

defendant had confessed and fled to Mexico, and that

codefendant Garza, whose case had not yet been severed, had

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refused to take a lie detector test. Reports related that

defendant said the gun discharged accidentally and that he did

not intend to kill the victim. But these statements would be

followed by an observation that Chad was shot three times.

Bronson considered a change of venue was warranted

because of the gravity of the crime and the pursuit of a death

penalty. Letter writers expressed the view that even more

extreme penalties should be imposed. One writer opined that

defendant’s arms should be cut off so he could never pull a

trigger again. Dr. Bronson found no mitigating content in the

media he reviewed.

Some coverage described defendant and Garza as

Hispanic. Some stories discussed a theory that Chad was killed

because he was dating a Hispanic classmate. Others addressed

contentions that the case received greater resources because the

victim was White. Most of the stories, however, did not include

a racial slant. Other negative details included references to

gangs, defendant’s criminal history, and his being armed and

dangerous. Bronson listed as a positive factor that defendant

and Garza were not described as outsiders to the community.

As to victim status, Chad was the high school football

captain. His jersey number appeared in thousands of places,

including the football fields at Arvin and Bakersfield High

Schools, armbands, cheerleaders’ uniforms, and plaques. There

was a shrine and multiple memorials, including one attended by

4,200 people. A candlelight vigil was conducted on his 18th

birthday. He was honored at his high school’s homecoming and

numerous fundraisers were held to raise money for scholarships

in his name. Many contributed to a reward fund that grew to

$15,000.

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Dr. Bronson testified that Kern County was the 14th most

populous of California’s 58 counties, with a population of

648,400. News coverage reflected that Chad’s death shocked,

saddened, and galvanized people throughout the county. Dr.

Bronson opined that the response was similar to that common

in a small community.

Dr. Bronson also discussed electronic media, although he

gave it less emphasis because it is harder to track and tends to

have a lesser impact than print media. He observed generally

that “there was a massive amount of coverage. There were far

more broadcasts than there were news articles; that the

material largely tracked what was in the newspapers; that . . .

the coverage was — as with the newspapers, . . . heavier in the

earlier period and then dwindled later on.”

A survey of Kern County residents conducted in January

2000, about a year before jury selection began, revealed the

following: approximately 82 percent of the 403 jury-eligible

respondents recognized the case; 53.6 percent of eligible

participants thought the two defendants were definitely or

probably guilty; 52.9 percent favored the death penalty after

conviction; 41.9 percent had heard the defendants were gang

members; 14.9 percent had heard that a defendant had

confessed to the murder; 61.2 percent did not know whether it

was defendant or Garza who had confessed; 52.3 percent had

heard that Chad was tortured; 32.8 percent had heard that both

defendants had criminal records that included carjacking and

murder charges. Finally, focusing on the details of gang

membership, torture, confession, and criminal record, almost 75

percent had heard one or more of those facts, 44 percent knew

two or more, 21.6 percent knew three or more, and 5 percent

knew all four. Of those who were aware of all four specifics, 100

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percent thought the defendants were guilty and 81 percent

thought they deserved the death penalty. Lesser degrees of

awareness gave rise to less belief in guilt and favor for the death

penalty, but the numbers remained high.17 The survey did not

ask if participants could put aside their knowledge of the case

and beliefs about guilt and punishment to decide the case solely

on the evidence introduced in court.

The court denied the motion. It found that defendant had

not met his burden to show a reasonable likelihood that an

impartial jury could not be empaneled. In particular, it

expressed concern that Dr. Bronson’s survey did not reflect

whether those surveyed had fixed opinions that could not be set

aside. The court added that the motion could be renewed,

presumably at the end of jury selection. Defendant’s petition for

writ of mandate was denied by the Fifth District Court of

Appeal.

Four hundred and fifty jury panelists were called; 199

were dismissed for hardship and 166 were excused for cause,

leaving 85 panelists from which to select the jurors and

alternates.18

17

Of those who recognized three specifics, 83.6 percent

thought they were guilty and 71 percent thought they deserved

the death penalty. Of those who recognized two specifics, 74.7

percent thought they were guilty and 56 percent thought they

deserved the death penalty. Of those who recognized one

specific, 64.8 percent thought they were guilty and 45 percent

thought they deserved the death penalty.

18

In some of our own jury selection cases, and those of the

United States Supreme Court, the terminology used can

potentially cause confusion. Those called to a courtroom for jury

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Defendant renewed his motion for a change of venue on

January 5, 2001, at the completion of the for-cause excusals.

The renewed motion was based on publicity since the previous

motion and on an analysis of the juror questionnaires. Dr.

Bronson was recalled. He identified 19 new articles since the

last change of venue motion. They contained references to the

victim having been bound and killed “execution style” with three

shots to the head. The articles stated that defendant was the

decisionmaker and fired the fatal shots. They mentioned

defendant’s inculpatory and exculpatory statements. There was

discussion of defendant’s gang involvement and his flight to

Mexico. The articles also reported that defendant faced charges

for two other carjackings.

Some articles mentioned that football players touched

Chad’s memorial plaque before taking the field; a Sheriff’s

bicycle patrol had been established from a memorial fund; and

a quote from one citizen that “Chad will never be forgotten.”

Jury questionnaires revealed that 79 percent of panelists

recognized the case, and 11 percent knew the victim or his

family; 16 percent had attended the victim’s funeral or a

memorial, or knew someone who had done so; only 2 percent

knew the defendant or his family; 18 percent said they could not

be fair and impartial if street gangs were involved in the case;

14 percent believed they could not be fair due to the nature of

selection are prospective jurors, or members of a jury panel.

However, some jury panel members are occasionally referred to

as “jurors,” once they are called forward for voir dire, even if they

are never sworn in as trial jurors. To avoid confusion we refer

to prospective jurors as panelists and use the term “juror” only

to describe someone actually sworn to serve in that capacity.

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the charges; 19 percent had formed an opinion on guilt that they

could not set aside.

Dr. Bronson reviewed the voir dire of the first 75 of the 251

panelists who remained after hardship excusals. He considered

the sample representative. He did not know the age, race or

residence of those questioned. Nor did he focus attention

specifically on the 85 panelists who remained after challenges

for cause. Dr. Bronson opined that panelists are not always

completely forthcoming about bias in voir dire, although he

acknowledged that this was less of a concern during individual,

or Hovey¸ voir dire,19 that was used in this case. In his view the

court’s questioning was not always thorough enough. He cited

examples of leading questions asking whether a panelist would

“do your duty” and “follow the law” that suggested the panelists

should respond favorably. In addition, 31 of the 75 panelists

were not asked about their familiarity with the case. Of the

remaining 44 people who were asked, 41 (93 percent) were

aware of some facts; 15 percent of the group were excused based

on their representations that they could not be fair and

impartial.

Dr. Bronson acknowledged that of the 85 panelists

remaining after challenges for cause, approximately one quarter

had heard nothing about the case. He also agreed that all of the

39 panelists who stated that they could not be fair because of

pretrial publicity were excused for cause. Nonetheless, he

continued to maintain that the selection process did not remedy

19

In a Hovey voir dire (Hovey v. Superior Court (1980) 28

Cal.3d 1) each prospective juror is questioned outside the

presence of any others.

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the effect of pretrial publicity, and that defendant could not

receive a fair trial in Kern County.

The trial court again denied the motion. Relying on its

firsthand observation of the panelists and their demeanor, the

court concluded that defendant had failed to demonstrate a

reasonable likelihood that the panelists had such fixed opinions

that a fair and impartial trial could not be conducted.

During jury selection defendant used all of his peremptory

challenges allotted to the selection of the panel and alternates.

His request for additional peremptory challenges was denied

and he expressed dissatisfaction with the jury empaneled to try

the case.

c. Pretrial Motions

Defendant has failed to demonstrate error in the denial of

his motions to change venue.

As to the nature of the offense, “ ‘every capital case

presents a serious charge. This factor adds weight to a motion

for change of venue, but is not dispositive.’ ” (People v. Smith

(2015) 61 Cal.4th 18, 40.) This case was not particularly

aggravated in comparison to other capital murders; it did not

involve multiple murders or violent sex acts, for example. That

the victim was bound and shot in the head at close range are

gruesome facts, but do not approach the sensational nature of

other cases in which we have upheld the denial of venue

motions. (See, e.g., Smith, at pp. 23–24, 40 [defendant and

accomplices hit victim multiple times with blunt objects, forced

the victim to cut her own wrist with a razor, forced her to hold

her wrists over a fire pit, poured whiskey on her wounds,

wrapped a garbage bag around her head, and then bludgeoned

her to death with a metal bar]; People v. Zambrano (2007) 41

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Cal.4th 1082, 1096–1097, 1125 (Zambrano) [defendant shot the

victim then decapitated and dismembered the body with an ax

and saw].)

Defendant places great emphasis on the pretrial publicity

factor. There were 244 articles in the three local papers over a

five-year period. Articles reported that the victim was bound

and killed execution style, and that defendant admitted the

shooting but claimed it was accidental. The newspapers

mentioned carjacking and gang activities. But media coverage

“ ‘is not biased or inflammatory simply because it recounts the

inherently disturbing circumstances of the case.’ ” (People v.

Suff (2014) 58 Cal.4th 1013, 1048.) The use of descriptions like

“ ‘execution-style murders,’ ‘ “brutal,” “cold-blooded,” “evil,”

“horrible,” or “horrific” ’ [are] not by themselves necessarily

prejudicial when they appear[] in generally factual and

noninflammatory reporting.” (People v. Scully (2021) 11 Cal.5th

542, 570 (Scully).) The coverage here was similar to that in

Scully where we upheld the denial of a change of venue motion.

There newspapers discussed a “ ‘cold-blooded’ ” or “ ‘execution-

style’ ” murder and described the defendant as “a parolee,

violent felon, career criminal, or reputed member of the Aryan

Brotherhood.” (Id. at p. 569.) Nonetheless, those articles also

referred to the defendant as “ ‘suspected’ ” or “ ‘accused’ ” of

“ ‘allegedly’ ” shooting the victim, and were “generally factual,

fair, and not inflammatory.” (Ibid.) Similarly, the reporting in

this case was “essentially factual, not sensationalized”

(Zambrano, supra, 41 Cal.4th at p. 1126), and presented

defendant’s assertion that the shooting was accidental.

Moreover, the impact of pretrial publicity may be

mitigated as time elapses between coverage and jury selection.

(People v. Proctor (1992) 4 Cal.4th 499, 525 (Proctor); see, e.g.,

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Scully, supra, 11 Cal.5th at pp. 568, 570–571 [publicity largely

abated two weeks after the killing]; People v. Jennings (1991) 53

Cal.3d 334, 361 [publicity 11 months before trial]; People v.

Anderson (1987) 43 Cal.3d 1104, 1130 [lapse of five months];

People v. Welch (1972) 8 Cal.3d 106, 113–114 [news reports

ending about a month before trial].) Here, 205 articles were

published between 1997 and 1998, over two years before

defendant’s trial. Only 19 articles were published in 1999, with

20 articles published in 2000 and 2001. The press coverage here

had abated in the months preceding jury selection, and the trial

was held in Bakersfield, a larger community approximately 20

miles away from Arvin, where the victim lived. (See Proctor, at

p. 525.) These circumstances greatly mitigated the effect of

pretrial publicity.

Defendant relies on the results of the 2000 survey of Kern

County residents to argue that recollection of the case remained

high despite the passage of time. Approximately 82 percent (329

of 403) of jury-eligible respondents recognized the case; 53.6

percent thought the two defendants were definitely or probably

guilty; 41.9 percent had heard the defendants were gang

members; 14.9 percent had heard that a defendant had admitted

the killing; and 32.8 percent had heard that both defendants had

prior criminal records that included carjacking and murder

charges. But the fact that many jurors recall a case does not

equate to the type of extreme press coverage that manifestly

taints a criminal prosecution. The degree of exposure was

comparable to that in Proctor, where 80 percent of those

surveyed had heard of the case and 31 percent had formed an

opinion as to the defendant’s guilt. There, based on the passage

of time and the location of the trial in a larger community, we

held that a change of venue due to pretrial publicity was not

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strongly indicated. (Proctor, supra, 4 Cal.4th at pp. 524−526,

and cases cited; accord Scully, supra, 11 Cal.5th at pp. 570–571,

and cases cited.) “Almost inevitably even those qualified for

potential service by a court may have had some prior exposure

to the case, but ‘[p]rominence does not necessarily produce

prejudice, and juror impartiality, we have reiterated, does not

require ignorance.’ ” (Peterson, supra, 10 Cal.5th at p. 441,

quoting Skilling, supra, 561 U.S. at p. 381.) The answer is to

“rigorously vet potential jurors to screen out those tainted and

irrevocably biased by pretrial publicity, to find 12, plus

alternates, who can decide only on the evidence admitted at

trial.” (Peterson, at p. 441.)

As for community size, at the time of defendant’s trial

Kern County was the 14th largest in California, with a

population of 648,400. The trial was held in Bakersfield, the

county seat and the largest city in the county. (California State

Association of Counties, Kern County

<https://www.counties.org/county-profile/kern-county> [as of

Aug. 22, 2022]; Statistical Atlas, Population of Kern County,

California <https://statisticalatlas.com/county/California/Kern-

County/Population> [as of Aug. 25, 2022]. All Internet citations

in this opinion are archived by year, docket number and case

number at <http://www.courts.ca.gov/38324.htm>.) In a

populous urban area, a major crime is less likely to remain

imbedded in the public consciousness. (People v. Coleman (1989)

48 Cal.3d 112, 134; People v. Balderas (1985) 41 Cal.3d 144, 178

(Balderas).) We have upheld the denial of motions for change of

venue in Kern County and other, smaller counties. (See, e.g.,

Scully, supra, 11 Cal.5th at p. 574 [Sonoma County, population

approximately 421,500]; People v. Vieira (2005) 35 Cal.4th 264,

280–283 [Stanislaus County, population approximately

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Opinion of the Court by Corrigan, J.

370,000]; People v. Weaver (2001) 26 Cal.4th 876, 905 [Kern

County].) The size of this community militates against a venue

change.

As to defendant’s community status, he was not an

outsider. Although born in Mexico, he moved to Kern County as

an infant and lived there most of his life. According to Bronson,

several articles described defendant as Hispanic without any

contextual relevance, which he deemed to be “unprofessional.”

However, he did not note any overtly inflammatory terms

designed to spark ethnic prejudice. (See Prince, supra, 40

Cal.4th at p. 1214.) Defendant emphasizes that media reports

portrayed him as a gang member. But evidence of that

involvement would be part of the trial evidence, including

defendant’s own admissions to law enforcement. Any prejudice

stemming from defendant’s status as a gang member would be

a potential factor wherever the case was tried. (Scully, supra,

11 Cal.5th at p. 575; Prince, at p. 1214.) Chad’s death did spark

local action. Law enforcement announced plans to crack down

on gang activity. A “Call to Action” meeting and various

fundraisers were held to combat gang violence, and a reward

was offered for information leading to the arrest and conviction

of the suspect at large. A few letters to the editor described the

suspects as “evil,” and “self-centered gang members.” But we

cannot say that these circumstances reflected “ ‘ “unusual local

hostility . . . such that a change of venue would likely produce a

less biased panel.” ’ ” (Scully, at p. 575, original italics, quoting

People v. Panah (2005) 35 Cal.4th 395, 449 (Panah); see also

Balderas, supra, 41 Cal.3d at p. 179.)

As for the victim’s prominence, Chad was well-known and

well-liked in his hometown, particularly among his peers.

Memorial attendance and the ongoing local tributes were

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significant. But he did not appear to have particular

prominence outside of this small town and the local football

community. Certainly jurors from anywhere might sympathize

with the fact that a popular and successful young man met an

untimely death. In Proctor, we did not find a change of venue

indicated where the victim was a well-known and well-liked

member of the small community who worked in the school

system for 20 years and had “ ‘taught everyone’s kids.’ ”

(Proctor, supra, 4 Cal.4th at p. 526.) And in People v. Rices

(2017) 4 Cal.5th 49, we upheld the denial of a change of venue

where the victims “were members of the close-knit Chaldean

community” and “that community, understandably, grieved

heavily over its loss,” but the community “constituted only a

small portion of the large overall population in the East County

district” from which the jurors were chosen. (Id. at pp. 72–73.)

The above factors do not weigh strongly in favor of a

change of venue for a trial that was conducted in a larger city

with jurors drawn countywide.

Most significantly, a review of the voir dire demonstrates

no reasonable likelihood that defendant did not, in fact, receive

a fair trial from the jurors actually seated. The profile of 10 of

the 12 seated jurors is discussed in greater detail below in

connection with defendant’s challenge to the court’s ruling on

challenges for cause. (See pt. II.A.4., post.) In brief, 11 of the 12

had been exposed to some pretrial publicity. However, that fact,

standing alone, “does not necessarily require a change of venue.

[Citation.] ‘ “It is sufficient if the juror can lay aside his [or her]

impression or opinion and render a verdict based on the

evidence presented in court.” ’ ” (Panah, supra, 35 Cal.4th at p.

448.) In Prince, we affirmed the denial of a venue change even

though “a high percentage of the [panelists] and 12 of the 13

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jurors who actually served at trial . . . had been exposed to the

publicity . . . .” (Prince, supra, 40 Cal.4th at p. 1215.) We noted

the responses to the questionnaires and voir dire “did not

disclose any prejudgment or emotional bias” and “displayed only

a vague recollection of past news coverage.” (Ibid.) The

panelists asserted that “the publicity would not prevent them

from serving as unbiased jurors.” (Ibid.)

Likewise, here most of the jurors had heard only the basic

facts that would be presented at trial, and many remembered

very little due to the passage of time. (See pt. II.A.4., post.)20

And all of the seated jurors stated that their exposure to pretrial

publicity would not affect their ability to be fair and impartial.

While a “juror’s assurances that he [or she] is equal to this task

cannot be dispositive of the accused’s rights” (Murphy v. Florida

(1975) 421 U.S. 794, 800), defendant here “offers no sound basis

to believe the jurors’ assurances in this case were insincere”

(Peterson, supra, 10 Cal.5th at p. 442).

As discussed below, the court and the parties carefully

vetted the seated jurors and the court made specific findings

based on the jurors’ answers and demeanor. We have repeatedly

declined to find prejudice under similar circumstances. (See

Scully, supra, 11 Cal.5th at pp. 573–574; Proctor, supra, 4

Cal.4th at p. 527, and cases cited.) “When pretrial publicity is

at issue, ‘primary reliance on the judgment of the trial court

makes [especially] good sense’ because the judge ‘sits in the

locale where the publicity is said to have had its effect’ and may

base her evaluation on her ‘own perception of the depth and

20

Seated Juror No. 7’s purported emotional reaction to the

fact that Brent stood in for his late brother as homecoming king

is discussed in further detail below. (Pt. II.A.4.f., post.)

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extent of news stories that might influence a juror’

[Citation.] . . . [¶] Reviewing courts are properly resistant to

second-guessing the trial judge’s estimation of a [panelist’s]

impartiality, for that judge’s appraisal is ordinarily influenced

by a host of factors impossible to capture fully in the record —

among them, the [panelist’s] inflection, sincerity, demeanor,

candor, body language, and apprehension of duty. [Citation.] In

contrast to the cold transcript received by the appellate court,

the in-the-moment voir dire affords the trial court a more

intimate and immediate basis for assessing a venire member’s

fitness for jury service.” (Skilling, supra, 561 U.S. at pp. 386–

387.) That the jury acquitted on one count of carjacking is

another indication that the jurors were not unduly swayed by

emotion, and considered each allegation separately. (See id. at

pp. 394–396; People v. Harris (2013) 57 Cal.4th 804, 831.) The

record demonstrates that defendant was tried by 12 impartial

jurors.

We further reject defendant’s claim that the pretrial

publicity in this case was so pervasive and damaging that

prejudice must be presumed rather than shown. (See generally

Mu’Min v. Virginia (1991) 500 U.S. 415, 429; People v. Avila

(2014) 59 Cal.4th 496, 509–513 (Avila); Prince, supra, 40 Cal.4th

at pp. 1216–1218.) Such a presumption “attends only the

extreme case.” (Skilling, supra, 561 U.S. at p. 381 [pervasive

publicity from the Enron scandal did not require that prejudice

be presumed].) The examples cited in Skilling are illustrative:

Rideau v. Louisiana (1963) 373 U.S. 723 involved a

murder trial in a small community. Three times shortly before

trial, a local television station broadcasted a video of the

defendant “in jail, flanked by the sheriff and two state troopers,

admitting in detail the commission of the robbery, kidnapping,

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Opinion of the Court by Corrigan, J.

and murder, in response to leading questions by the sheriff.”

(Id. at p. 725.) Over a third of the community had watched at

least one of the televised confessions, as had three of the actual

jurors. (Id. at pp. 724–725.) In finding a presumption of

prejudice, the court observed that the trial amounted to

“kangaroo court proceedings” in which “the people of Calcasieu

Parish saw and heard, not once but three times, a ‘trial’ of

Rideau in a jail, presided over by a sheriff, where there was no

lawyer to advise Rideau of his right to stand mute.” (Id. at pp.

726–727.)

The Skilling court also discussed Estes v. Texas (1965) 381

U.S. 532, which it described as follows: “extensive publicity

before trial swelled into excessive exposure during preliminary

court proceedings as reporters and television crews overran the

courtroom and ‘bombard[ed] . . . the community with the sights

and sounds of’ the pretrial hearing. The media’s overzealous

reporting efforts . . . ‘led to considerable disruption’ and denied

the ‘judicial serenity and calm to which [Billie Sol Estes] was

entitled.’ ” (Skilling, supra, 561 U.S. at pp. 379−380.)

Finally, the Skilling court looked to Sheppard v. Maxwell

(1966) 384 U.S. 333. There the defendant “was accused of

bludgeoning his pregnant wife to death. ‘[B]edlam reigned at

the courthouse during the trial and newsmen took over

practically the entire courtroom,’ thrusting jurors ‘into the role

of celebrities.’ [Citation.] Pretrial media coverage, which [the

court] characterized as ‘months [of] virulent publicity about

Sheppard and the murder,’ did not alone deny due process . . . .

[Citation.] But Sheppard’s case involved more than heated

reporting pretrial: [The court] upset the murder conviction

because a ‘carnival atmosphere’ pervaded the trial [citation].”

(Skilling, supra, 561 U.S. at p. 380.)

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This was not such an “extreme case.” (Skilling, supra, 561

U.S. at p. 381.) There was no media circus surrounding the trial

and no broadcast of a videotaped confession. Although the press

reported that defendant had admitted shooting Chad, it also

reported his exculpatory statement that the gun discharged

accidentally. Of course, these same facts were admitted at trial.

The volume of pretrial publicity alone did not give rise to a

presumption of prejudice. “ ‘[P]retrial publicity — even

pervasive, adverse publicity — does not inevitably lead to an

unfair trial.’ ” (Id. at p. 384.) This is particularly true given the

passage of three years between the crime and the beginning of

trial. (See Avila, supra, 59 Cal.4th at p. 510.) The high court

has “rightly set a high bar for allegations of juror prejudice due

to pretrial publicity. [Citations.] News coverage of civil and

criminal trials of public interest conveys to society at large how

our justice system operates. And it is a premise of that system

that jurors will set aside their preconceptions when they enter

the courtroom and decide cases based on the evidence

presented.” (Skilling, at p. 399, fn. 34.) Here there was a three-

year gap between the crimes and trial, and the facts are

substantially different from the cases to which the defense

points. No presumption of prejudice is warranted on these facts.

d. Renewed Motions

Defendant claims the trial court erred in denying several

motions for a change of venue prompted by developments during

jury selection and the trial itself. He fails to persuade.

i. Panelist M.D.

On January 17, 2001, during the selection of alternates,

Panelist M.D. reported that she had just learned her brother

worked with the victim’s sister. M.D.’s brother had commented

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Opinion of the Court by Corrigan, J.

that he had to rearrange the sister’s schedule so that she could

attend the trial. M.D. told her brother that she could not talk

about the case. She was not acquainted with Chad’s sister or

even aware of her name. She stated that this brief conversation

with her brother would not affect her ability to be fair and

impartial. Defendant challenged the panelist for cause, moved

for a mistrial, and renewed the motion for change of venue. He

argued that it was “absolutely unfair and prejudicial . . . to be

put through . . . this type of a jury pool, with jurors that we know

have close connections with this family, are one person away

from this family, going to affect them for the rest of their lives.”

Defendant objected that “[w]e have to waste a peremptory on

people like this, when, if we were in the situation where we had

a jury that could be fair and impartial, and didn’t prejudge guilt,

we can — there would be totally different considerations, in

exercising challenges.” The court found, based on the panelist’s

answers and demeanor, that she could perform her duties, and

denied defendant’s motions.

The voir dire of M.D. does not bear out defendant’s

argument that the panel was “saturated” with people closely

associated with the Yarbrough family. M.D. did not personally

know the victim or his sister. The panelist’s brother worked at

the same chain store as Chad’s sister, but the record did not

establish a close relationship. The panelist conscientiously

avoided any discussion of the case with her brother and the trial

court found that she could be fair and impartial.

ii. Circus Atmosphere

On January 31, 2001, defendant objected that the

presence of family members in the courtroom was creating a

“circus atmosphere.” He described that 20 to 25 members of the

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Yarbrough family had broken into “loud and raucous laughter”

when Brad testified about his underpants. Several members of

the jury followed suit. He also commented that, twice that day

during breaks in the trial, the family members were “gathered

outside the courtroom . . . visiting in loud voices and seemingly

very happy about the progress of affairs, with jurors sitting a

few feet away . . . .” Defendant suggested there had been

favoritism shown towards the victim’s family, citing as examples

a sign on the courtroom door saying, “Yarbrough case,” and a

uniformed bailiff having commiserated with the Yarbrough

family in the hallway. The bailiff was questioned and said that

he had asked the family how they were holding up during the

trial. The interaction lasted about five minutes. The trial court

denied defendant’s motion for mistrial. It observed: “I don’t find

there’s been a circus atmosphere. I deny that there’s been any

inappropriate behavior by the jurors or people in the audience

section. [¶] I don’t agree with that characterization . . . that

people were laughing in a loud and raucous manner. Certainly,

I could hear laughter. But I don’t feel it was inappropriate.” The

court admonished the bailiff not to speak with the family

members.

This record does not bear out defendant’s assertion that a

circus atmosphere permeated the case. Family members have a

right to attend a public trial and may well have done so

regardless of the venue. The family’s audible laughter over a

discrete aspect of testimony did not undermine courtroom

decorum. The court specifically found that the laughter was not

disruptive and saw no need to admonish the audience at the

time. The bailiff’s interaction with the family in the hallway

was an isolated incident for which he was admonished. A sign

identifying the trial by the victim’s last name, rather than

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defendant’s, is somewhat unusual. But as the prosecutor

observed below, this was likely done for practical reasons to

assist witnesses and court-watchers, rather than as an overt act

of favoritism. These circumstances are a far cry from Sheppard

v. Maxwell, supra, 384 U.S. 333, where “bedlam reigned at the

courthouse during the trial and newsmen took over practically

the entire courtroom,” causing “frequent confusion and

disruption” (id. at p. 355) and thrusting jurors “into the role of

celebrities” (id. at p. 353).

iii. Juror No. 11

On February 5, 2001, Juror No. 11 had lunch with her

father. He asked her if she was getting bored with the case.

When she said no, he replied, “[W]hat’s taking them so long?

They know he did it.” She responded that she could not discuss

the case. After the juror reported the incident, defendant moved

for a mistrial and renewed his change of venue motion. The

court questioned Juror No. 11 and several other jurors who were

also aware of the incident. The court declined to dismiss Juror

No. 11, grant a mistrial, or revisit its venue ruling.

Defendant contends that Juror No. 11 was “subject to

improper influence by her father who expressed a forceful

opinion, in public, about the guilt of the defendant,” and

“appeared hostile” to defense counsel when questioned about the

incident. These arguments are more properly addressed to

defendant’s claim of juror misconduct. That claim, and a fuller

discussion of the relevant record, appears post at part II.B.1.

Here, it is enough to note that this isolated incident between the

juror and her father does not evidence a pervasive and damaging

bias held by the seated jurors that would warrant a change of

venue.

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iv. Diana Yarbrough

On February 9, 2001, defense counsel reported that the

previous day he had encountered the victim’s aunt, Diana

Yarbrough, when appearing before a different judge, in another

courtroom, in connection with defendant’s funding requests.

Ms. Yarbrough, a supervising clerk in the municipal court, had

regularly attended defendant’s trial. Defense counsel argued it

was “inappropriate” for Ms. Yarbrough to be supervising the

clerk in a department that handled matters related to this case

and moved for a change of venue, a mistrial, and dismissal. Ms.

Yarbrough testified about the incident. She generally

supervised the clerk in the other courtroom, but had made

arrangements for another supervisor to oversee issues arising

from defendant’s proceedings there. She entered that

department during a recess and spoke for about one minute with

the clerk about an unrelated juvenile matter. She heard nothing

about defendant’s case and reviewed no records related to it.

The trial court denied defendant’s motions. The court noted that

Ms. Yarbrough did not supervise the clerk assigned to the trial

courtroom, and found no evidence that she had seen or discussed

any information regarding the case.

Ms. Yarbrough’s status as an employee of the Kern County

Superior Court did not warrant a change of venue. She was

effectively walled off from defendant’s trial and had no

confidential information about it. Her brief presence on an

unrelated juvenile case in a different department did not

undermine confidence in the fairness of these proceedings.

3. Correctional Officers in Jury Pool

Defendant contends the denial of his motion to dismiss all

correctional officers from the jury pool violated his right to an

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impartial jury. He argues that “[I]t was clear from the

testimony of the numerous correctional officers called as

prospective jurors that the local correctional facilities were

centers of interest and concern about this case; that it was a

major topic of discussion during the process of jury selection;

and that many correctional officers held opinions or expressed

notions that were premature, unfounded, and false.” The claim

fails.

Panelist S.L. was a correctional officer and gang

investigator for the Department of Corrections and

Rehabilitation. Defendant challenged him for cause arguing

that he had special knowledge about gangs and had heard a

rumor at work that the victim’s penis was severed and placed in

his mouth. Counsel argued: “This is a CDC officer. He’s not

one of the defendant’s peers. There’s a potential here that he

will substitute his expertise for the evidence in this case. He

indicated that. [¶] The problem with this case and having this

case in Kern County keeps resurfacing, because the burden

keeps shifting to the defendant to disprove rumors. We don’t

know all the rumors that these people have heard. [¶] This

[juror] heard some of the more horrendous rumors, which now

we are going to have to disprove and possibly show autopsy

pictures we have agreed to stipulate to keep out, and now I have

to show the fact this victim’s genitals are intact. [¶] The juror

himself is in an adversarial position with gangs automatically

because of his job. He would be in an adversarial position to

potential defense witnesses and to this defendant if he was a

juror.”

The court denied the challenge for cause against

correctional officers as a group and against panelist S.L. in

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particular.21 As for the blanket challenge, the court observed

that “the Legislature, in their wisdom, had not excluded

correctional officers from the prospective jury pool. It’s the

legislative intent that correctional officers be allowed to be on

criminal juries.” Defendant renewed his blanket challenge

during the subsequent voir dire of another correctional officer,

Panelist S.W. The renewed motion was denied.

Defendant argues that, under the unique facts of this case,

all correctional officers in the jury pool were unfit to serve

because the case was “a chief subject of concern and speculation

in the numerous correctional institutions of Kern County, and

. . . falsities, presumptions of guilt, and poisonous rumors were

part of daily talk in public areas of these institutions.” The court

acted within its discretion. We addressed a similar claim in

People v. Ledesma (2006) 39 Cal.4th 641 (Ledesma).) There, the

defendant argued that the panelist’s “employment as a

corrections officer in the county jail system where defendant was

housed constituted ‘implied bias’ — a presumption of bias that

could not be overcome by a finding that he could be fair and

impartial.” (Id. at pp. 669–670.) We noted that, under

California law, “a juror may be excused for ‘implied bias’ only for

one of the reasons listed in Code of Civil Procedure section 229,

‘and for no other.’ ” (Id. at p. 670.)22 If the facts do not establish

21

The court’s ruling with respect to the attributes of this

particular panelist is discussed post at part II.A.5.a.iv.

22

Code of Civil Procedure section 229 provides for dismissal

of a panelist or seated juror because of: (1) consanguinity or

affinity to a party, witness or victim; (2) certain family,

confidential, or business relationships; (3) participation in

another action or trial involving the same parties or cause of

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one of the grounds for implied bias listed in that statute, a

panelist may be excused for “[a]ctual bias” if the court finds that

the panelist harbors a state of mind that would prevent

impartiality. (Code Civ. Proc. § 225, subd. (b)(1)(C); Ledesma,

at p. 670.) We rejected Ledesma’s claim, concluding: “None of

the statutory grounds for a finding of implied bias is present in

this case, and the trial court concluded that [the panelist] was

not actually biased.” (Ledesma, at p. 670.) The same is true

here.

Defendant’s assertion about panelists’ exposure to case

information among correctional officers was explored on a case-

by-case basis. Three of the panelists defendant identifies: S.L.,

S.W., and M.T., did not serve on the jury. Those people could

not possibly have affected the fairness of defendant’s trial.

(People v. Black (2014) 58 Cal.4th 912, 921 (Black); People v.

Yeoman (2013) 31 Cal.4th 93, 114 (Yeoman).)

The challenges against Seated Juror Nos. 6, 8, and 12 are

discussed in further detail below. As to the venue claim, we note

that these jurors had some general knowledge about the case

from the news media. None of the information they recounted

was inaccurate, and none was acquired from their employment

in the prison system. This voir dire record disproves defendant’s

expansive claim that “falsities, presumptions of guilt, and

action or being a party to the action pending before the court; (4)

an interest in the outcome of the action; (5) an unqualified

opinion on the merits of the action founded on knowledge of its

material facts; (6) a state of mind evincing enmity against, or

bias towards, either party; or (7) in a capital case, a

conscientious opinion that would preclude the juror from finding

the defendant guilty. Correctional officers, as a class, do not

automatically fall under any of these categories.

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poisonous rumors” about the case were so prevalent in the

correctional institutions of Kern County that anyone who

worked there was automatically disqualified from service. The

defense presented no independent proof on this broad assertion.

The trial court properly denied defendant’s blanket challenge.

4. Biased Jury

Defendant contends the trial court repeatedly and

erroneously denied for cause challenges, resulting in a biased

jury. Of the 48 panelists he identifies, 26 were removed by

defense peremptory challenges. After the defense exhausted its

peremptories, 10 panelists whom defendant unsuccessfully

challenged sat on the jury and two others were seated as

alternates.23

As a preliminary matter, the People argue that the claim

is forfeited. To preserve a claim of error in the denial of a

challenge for cause, the defendant must exhaust his peremptory

challenges, declare his dissatisfaction with the jury as finally

constituted, and request additional challenges. (Black, supra,

58 Cal.4th at p. 918.)

Defendant did not forfeit the claim as to the seated jurors.

He exhausted his allotted peremptory challenges and requested

more. The court denied his request and deemed his objection to

be continuing. Defendant did not immediately express his

dissatisfaction with the jury as sworn. However, shortly

thereafter, he moved for a mistrial on the ground that his

23

The relevant jurors are Jurors Nos. 1, 2, 3, 4, 6, 7, 8, 10,

11, 12 and Alternate Jurors Nos. 1 and 5. Original Juror No. 12

was excused during trial and replaced by Alternate Juror No. 3.

References to Juror No. 12 are to this seated alternate.

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challenges for cause had been improperly denied, resulting in a

biased jury. The motion was considered and denied. Although

this timing was not ideal, the mistrial motion was specific and

timely enough to allow the trial court to take corrective action.

At the time of the motion the court was engaged in the selection

of alternates and the jury pool had not been discharged.

Accordingly, defendant sufficiently preserved the claim of error.

(See People v. Peoples (2016) 62 Cal.4th 718, 801 (Peoples).)

Defendant failed, however, to preserve his objection with

respect to the alternate jurors. While defendant exhausted his

allotted peremptory challenges and requested more, he did not

express dissatisfaction with the ultimate composition of the

alternate group. His challenge to the alternates is therefore

forfeited. (People v. Mills (2010) 48 Cal.4th 158, 186–187

(Mills).)

In any event, defendant’s challenge fails on the merits.

Under both state and federal Constitutions, a criminal

defendant is guaranteed the right to be tried by an impartial

jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)

To prevail on a claim that the court erroneously denied a

challenge for cause, “defendant must demonstrate that the

court’s rulings affected his right to a fair and impartial jury.”

(Yeoman, supra, 31 Cal.4th at p. 114.)

Defendant cannot make that showing as to the panelists

he dismissed peremptorily because none of those panelists sat

on his jury. (Black, supra, 58 Cal.4th at p. 921; Yeoman, supra,

31 Cal.4th at p. 114.) The same is true of Alternate Jurors Nos.

1 and 5 who were sworn but never called to serve. (Mills, supra,

48 Cal.4th at p. 186.) Because there was no possible prejudice,

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we need not consider the correctness of the trial court’s ruling

respecting those jurors. (Yeoman, at p. 114.)

We find no error in the court’s denial of defendant’s

challenges for cause as to jurors who ultimately adjudicated his

case. “A party may challenge a prospective juror for actual bias,

defined as a state of mind that would prevent that person from

acting impartially and without prejudice to the substantial

rights of any party.” (People v. Hillhouse (2002) 27 Cal.4th 469,

488.) “The trial court is in the best position to determine the

[juror’s] true state of mind because it has observed firsthand

[that person’s] demeanor and verbal responses. [Citations.]

Thus, ‘ “ ‘[o]n review of a trial court’s ruling, if the [juror’s]

statements are equivocal or conflicting, that court’s

determination of the person’s state of mind is binding.’ ” ’ ”

(People v. Clark (2011) 52 Cal.4th 856, 895 (Clark).) “If there is

no inconsistency, the reviewing court will uphold the court’s

ruling if substantial evidence supports it.” (Hillhouse, at p. 488.)

Defendant’s challenges for cause focused primarily on

jurors’ knowledge of the case and exposure to pretrial publicity.

Qualified jurors “need not be totally ignorant of the facts and

issues involved.” (People v. Cooper (1991) 53 Cal.3d 771, 807

(Cooper).) “ ‘To hold that the mere existence of any preconceived

notion as to the guilt or innocence of an accused, without more,

is sufficient to rebut the presumption of a [juror’s] impartiality

would be to establish an impossible standard.’ ” (Murphy v.

Florida, supra, 421 U.S. at p. 800.) “ ‘ “It is sufficient if the

juror[s] can lay aside [their] impression[s] or opinion[s] and

render a verdict based on the evidence presented in court.” ’ ”

(Cooper, at p. 807.)

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Some seated jurors were also challenged by defendant

based on their death penalty views. “ ‘To achieve the

constitutional imperative of impartiality, the law permits a

[juror] to be challenged for cause only if his or her views in favor

of or against capital punishment ‘would “prevent or

substantially impair the performance of his [or her] duties as a

juror” ’ in accordance with the court’s instructions and the

juror’s oath.” (People v. Blair (2005) 36 Cal.4th 686, 741 (Blair),

quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) A

juror’s bias in favor of or against the death penalty need not be

proven with “ ‘ “unmistakable clarity. [Citations.] Rather, it is

sufficient that the trial judge is left with the definite impression

that a [juror] would be unable to faithfully and impartially apply

the law . . . .” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 497–498

(Abilez).) Under this standard, a juror is properly excluded in a

capital case if he or she is unable to follow the trial court’s

instructions and “conscientiously consider all of the sentencing

alternatives.” (People v. McWhorter (2009) 47 Cal.4th 318, 340.)

a. Juror No. 1

Juror No. 1 wrote in her questionnaire that she did not

know the victim or any of his family. She had heard about the

case and seen some related photographs but “remember[ed] very

little” because “it was some time ago.” She had formed no

opinion about defendant’s guilt or innocence. Neither her

knowledge of the case nor the nature of the charges would affect

her ability to be fair and impartial. During voir dire Juror No.

1 explained that she had heard coworkers talking about the case

when it occurred but did not recall what was said. She recalled

news reports that the victim had been shot and that a suspect

was arrested in another state. She was aware that the victim

went to Arvin High School and played football. She did not

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recognize defendant by name or appearance. She explained. “I

don’t hear much about the case. I don’t watch the news a lot,

and I don’t read the paper.”

The juror stated that, based on media accounts, she

believed the victim was “murdered.” When asked if she could

put that belief aside, she agreed that she could “if there’s

evidence that I feel that he was not murdered. I can’t just go by

what the media says, because I know it’s not fact.” The

prosecutor explained the burden of proof in a criminal trial, and

the juror agreed that “[i]f I feel that it wasn’t proved, there was

not enough evidence, then I would have to say, yeah, the person

is not guilty,” “[r]egardless” of what she had heard in the media.

She affirmed that she could decide the case based solely on the

evidence and from no other source. The trial court denied

defendant’s challenge for cause.

Defendant’s argument that Juror No. 1 prejudged the case

fails. She knew very little about the case and said that she could

set aside what she had heard to base her verdict on the trial

evidence. She stated repeatedly in her questionnaire that she

could be fair and impartial. None of her answers during voir

dire cast doubt on that representation. Although she initially

described the crime as a murder, she readily accepted the

prosecutor’s explanation of the burden of proof. The court

specifically relied on the juror’s in-court demeanor in denying

the challenge. Its ruling was fairly supported by the record.

Defendant also argues that Juror No. 1 should have been

excused based on information she disclosed to the court after the

jury was sworn but before evidence was presented. The juror

informed the court that she owned two rental properties in

Lamont and went there monthly to collect the rent. She was

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concerned that she or her property might be the subject of gang

retaliation if she served as a juror. When asked to elaborate,

the juror said that she did not visit Lamont often and did not

know people there. She did not recognize anyone on the witness

list. After being shown a map of Lamont, the juror indicated

that one of her properties was next door to Garza’s house, and

another was close to the parking lot from where Leonel Paredes

was kidnapped. The court cautioned the juror that it would be

inappropriate for her to visit these locations in order to

“investigate the case.” It further informed her that retaliation

was “rare,” and that the court was not aware of any cases of such

retaliation in Kern County in the past 13 years. The court asked

the juror if she could “find someone . . . who could travel out

there just to avoid your having to do that” and to let the court

know the next court day “if you have made those arrangements,”

because “if you can’t make those arrangements then I want to

talk further about it.” The juror indicated that she would find

someone to collect her rents while she served as a juror on the

case. Asked if she was satisfied she could perform her duties,

the juror answered affirmatively based on the court’s

assurances. She did not presently feel that she was in danger,

although she continued to have “concerns.” She promised she

would speak up if at any time during the trial she became fearful

or was otherwise unable to perform her duties.

Defendant’s request to remove the juror was denied. The

court noted that the juror was diligent in reporting her

connection to the area, and honest about expressing her concern,

which was not unusual in a case of this type. The court was

“satisfied, having observed her demeanor, the manner in which

she answered the questions, that she can perform her duties”

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and was also satisfied that she would inform the court if she had

any further doubts about her ability to serve as a juror.

The next session, the court addressed Juror No. 1 and

asked if she had anything to add regarding the issue she had

raised earlier. The juror responded, “No.”

Section 1089 provides for the discharge of a juror at any

time the juror “is found to be unable to perform his or her duty.”

Here, Juror No. 1 expressed some concern about gang

retaliation. But she had not been threatened and was not

closely associated with the neighborhoods where the crime took

place. She was satisfied by the court’s representation that

retaliation against jurors was rare, and she agreed to revisit the

subject if her fears prevented her from performing her duties.

When the court revisited the subject, she expressed no such

concern at that time, or any time thereafter. The juror’s

“responses to the trial court’s examination revealed no bias, and

the trial court found none.” (People v. Mora and Rangel (2018)

5 Cal.5th 442, 485.) Defendant offers no sound basis to believe

the juror’s assurances were insincere. (Peterson, supra, 10

Cal.5th at p. 442.) We defer to the trial court’s credibility

determinations, which are supported by substantial evidence.

(People v. Merriman (2014) 60 Cal.4th 1, 100; People v. Harris

(2008) 43 Cal.4th 1269, 1304.)

b. Juror No. 2

Juror No. 2 wrote in her questionnaire that she did not

know the defendant, the victim, or their families. She had

“briefly” “glanced at or heard portions” of reports about the case

but recalled “no specifics” other than the “nature” of the crime

and a photograph of the victim. She had also heard others

talking about the case. Her exposure to this information would

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not affect her ability to be a fair and impartial juror. She had

no preformed opinion about defendant’s guilt.

During voir dire Juror No. 2 explained that she had

overheard a “brief” conversation between two mothers

expressing sympathy for the victim’s mother. She had heard on

the news that the victim “was a football player, and he was

found murdered and there was a truck involved. But that’s

about all as far as details. I never really took interest in

learning more.” She recalled hearing on the news that the

perpetrators were Hispanic, and the crime was possibly gang

related. Although the newspapers described the killing as a

“murder,” Juror No. 2 “didn’t really form any opinion. I just

knew a young man was dead, and the newspaper declared it to

be a murder.” She affirmed that she could set aside what she

had heard in the news media and would not prejudge the case.

The trial court denied defendant’s challenge for cause.

Defendant argues that Juror No. 2 “was close to this case,

and not forthcoming about what she knew, or what she

thought.” He claims she minimized her knowledge of the case

when “[i]n truth, she knew plenty of details about the crime.

She revealed them in between repeated statements that she

didn’t really know anything.” The record does not support this

overstatement. Juror No. 2 was not “close to this case.” She

knew a few basic details, as would almost anyone who had any

media exposure, and she readily disclosed them when asked.

She consistently maintained that she had not prejudged the case

and that she could disregard pretrial publicity and base her

decision on the evidence. The record supports the trial court’s

determination that she could be fair and impartial.

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c. Juror No. 3

Juror No. 3’s questionnaire recounted that he did not

know the defendant, the victim, or their families. He had not

read about the case in the newspapers or heard about it on

television; nor had he spoken to anyone about it. He had not

formed an opinion about defendant’s guilt and affirmed he could

be fair and impartial. During voir dire, Juror No. 3 clarified that

he had seen “a few brief” news reports about the case, and that

his wife had discussed the case with him. He recalled that there

was a carjacking and that police had recovered a truck

associated with the crimes. He knew that a young man had been

shot and that a suspect had been arrested in another state. He

disagreed with defense counsel’s characterization that he had

learned “an awful lot about this case” from discussions with his

wife. The juror explained that his wife mentioned the crime to

him but he was getting ready to go out and “wasn’t . . . really

paying too much attention to what she was saying.” He

expressed no doubt that he could set aside what he had heard

about the case and base his verdict solely on the evidence

presented in court.

The juror had received a subpoena from the district

attorney’s office to appear at a court date involving child

support. He had not spoken with anyone in the district

attorney’s office about settling the case. When asked by the

defense if he would “want to help out the D.A. in order to get

favorable treatment from the D.A. on that case,” the juror

responded, “No,” and observed, “That’s [two] totally different”

things. He was certain that the proceeding would not affect his

ability to be fair and impartial. The trial court denied

defendant’s challenge for cause.

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Defendant again maintains that Juror No. 3 “had learned

quite a bit about this case” and was “slow to reveal” that

information. He notes, without further elaboration, that the

juror indicated in his questionnaire that he favored the death

penalty for deliberate murder except in rare cases, and that the

juror had a pending child support matter. This record does not

support a challenge for cause. The juror’s voir dire revealed very

little familiarity with the case and he affirmed that he would

base his verdict solely on the evidence. The trial court probed

the juror about his views on the death penalty. The juror

affirmed that he was “very open-minded” on the topic and could

impose either death or life without the possibility of parole

(LWOP) depending on the evidence. He explicitly denounced the

philosophy of an “eye for an eye,” explaining, “if a person was

found guilty for taking somebody else’s life, I don’t see that it

would, in my beliefs, I don’t see that it’s right to take that

person’s life, just because he took somebody else’s life,

depending on the situation, or the crime that was committed, I

should say.”

As for the pending child support matter, the juror

voluntarily disclosed that fact on his questionnaire, and, when

questioned, was emphatic that it would not affect his service.

Defendant “offers no sound basis to believe the juror[’s]

assurances in this case were insincere.” (Peterson, supra, 10

Cal.5th at p. 442.) On the contrary, the juror seemed perplexed

by defense counsel’s suggestion that he might try to curry favor

with the prosecutor, responding, “that’s [two] totally different”

things. The trial court implicitly credited the juror’s

representations and denied the challenge “considering all the

circumstances.” Its determination is fairly supported by the

record.

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d. Juror No. 4

Juror No. 4 was the Dean of Students at Highland High

School and was acquainted with members of the Kern High

School District Police Department. She indicated in her

questionnaire that she did not know defendant, the victim, or

their families. She had heard about the case on television but

did not recall the specifics. She was not aware of how the victim

died. She had not formed an opinion about defendant’s guilt,

and her media exposure would not affect her ability to be fair

and impartial. During voir dire, the juror elaborated that she

had heard discussions about memorials for the victim at Arvin

High School. She was not personally involved in any such

discussions, and observed that such memorials “can get out of

hand and disrupt school activity” because it “keeps the students

in turmoil.” She stated that she was “somewhere between”

favoring the death penalty for deliberate murder and believing

that it should only be used in rare cases. She would keep an

open mind between the two punishments. The trial court denied

defendant’s challenge for cause.

Defendant argues that his challenge for cause should have

been granted. He offers no analysis in support of this assertion

other than to repeat some of the details summarized above.

Juror No. 4 knew very little about the case and she was open to

both penalties. The trial court’s ruling was fairly supported by

the record.

e. Juror No. 6

Juror No. 6 worked as a correctional counselor at Wasco

State Prison. Her job required her to evaluate an inmate’s

history, medical and psychiatric status, and criminal behavior.

She had many friends who were parole agents, correctional

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officers, and correctional counselors. She would not give the

testimony of these people greater weight.

She checked the box “Yes,” to the question: “If evidence in

this case shows the involvement of a ‘street gang,’ is there

anything about that which would prevent you from being a fair

and impartial juror?” She wrote, “Street gangs are generally

crime-oriented.” During voir dire she explained that she had

previously worked with gang members as a parole agent. Based

on that experience she believed that street gangs were formed

for the purpose of committing crimes. She had not worked

directly with gang members for at least eight years, and had no

special knowledge or experience with gangs in Arvin or Lamont.

She did not claim to have any gang expertise. She did not

believe that gang members are incorrigible and knew of

members who had turned their lives around. The juror affirmed

that she could “set aside any experiences, any training, any

views or opinions [she had] about street gangs or individuals

and not let them influence [her] in this case[.]” She explained,

“I have given it a lot of thought. And in some ways I think,

because of my background, I can be more objective maybe than

the average person. I really do feel I can be objective.”

The juror also checked the box “Yes” to the question: “Is

there anything about the use or possession of firearms that

would prevent you from being a fair and impartial juror?” She

wrote: “If carried by other than law enforcement, the carrier

often has criminal intent.” During voir dire she explained that

she felt gun possession resulted in escalated encounters that

might not otherwise be lethal. If a person intentionally

purchased a weapon to commit a crime, she would consider that

indicative of criminal intent. She would be less likely to focus

on gun possession if a spontaneous event took place that

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prompted a person to take defensive steps. She believed that

accidental shootings were common. The juror was a gun owner

herself and grew up around firearms. She described herself as

“very unbiased . . . about weapon possession.”

Juror No. 6 disclosed during voir dire that she had some

familiarity with the case. She had heard the victim was

kidnapped and killed, and that his body was found in a field.

She recalled fundraisers held for the victim’s family. She knew

nothing about the suspects or how the victim died. Her exposure

to pretrial publicity would not affect her ability to be fair and

impartial. She had not formed an opinion about defendant’s

guilt. She affirmed that she could be completely fair to both

sides.

Regarding punishment, the juror stated in her

questionnaire a preference for the death penalty for deliberate

murder. She explained, “If the murder was intentional, the

death penalty is fair and just.” “I’m in agreement with it in

certain clear-cut, premeditated cases.” Nonetheless, she felt

that life in prison without the possibility of parole “is acceptable

in some cases with extenuating circumstances.” She confirmed

that she was open minded about the penalty to be imposed and

would give honest consideration to both outcomes. Specifically,

she would consider mitigating circumstances as well as the

defendant’s intent in assessing an appropriate punishment. She

explained, “I worked in Child Protective Services for eight years

before going to the Department of Corrections. So it’s easy to

see how a childhood affects adulthood.” Defendant’s challenge

for cause was denied.

Defendant argues that the juror should have been excused

because “[c]orrectional facilities in Kern County were full of

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prejudicial talk about this case, including poisonous false

rumors and prejudicial beliefs.” Aside from Panelist S.L.’s

observations (see pt. II.A.3., ante), this allegation was largely

unsubstantiated. Moreover, Juror No. 6 had heard no such talk.

She was unfamiliar with the facts of the crime and was unaware

of how the victim had died. Defendant also urges, without

further analysis, that the juror should have been excused based

on her opinions about gangs, gun possession, and the death

penalty. The trial court probed all of these topics. The juror felt

that her exposure to gang members would enhance her

objectivity. She believed that accidental shootings were

common, which was in line with the defense theory of the case.

And she said she could be fair and openminded about

punishment, citing her service with Child Protective Services as

providing insight into the deleterious effects of childhood

trauma. The trial court’s denial of the challenge for cause was

fairly supported by the record.

f. Juror No. 7

Juror No. 7 disclosed in her questionnaire that she had

learned about the case through the newspapers and television,

and that she had discussed it with others. This pretrial

exposure would not affect her ability to be fair and impartial.

The juror elaborated during voir dire. She was aware that a

young man was carjacked and fatally shot in Arvin and that his

body was found by a family member. She recalled that the

suspects had painted the victim’s truck. She knew that the

victim played high school football and that his brother had stood

in for him as homecoming king. She had not prejudged

defendant’s guilt and could disregard this information to base

her verdict solely on the evidence. She was open to the

possibility “that the death of Chad Yarbrough was an accident,

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as opposed to an intentional murder.” The trial court denied

defendant’s challenge for cause.

Defendant argues that Juror No. 7 “had an extraordinary

amount of knowledge about this case.” The record does not

support this characterization. The juror had no personal

connection to the case and was unfamiliar with the victim, the

defendant, and their families. Her knowledge of the

circumstances surrounding the crime was typical of someone

who had been exposed to media coverage and hardly

“extraordinary.” Qualified jurors “need not be totally ignorant

of the facts and issues involved.” (Cooper, supra, 53 Cal.3d at p.

807.) The juror confirmed that she could disregard the

information she had heard in the media and base her verdict on

the evidence presented.

Defendant also claims that Juror No. 7 “became upset”

during voir dire. He cites defense counsel’s observation that the

juror “got upset when you talked about the brother taking over

[as] homecoming king.” His reliance on this offhand remark is

unpersuasive. Counsel did not elaborate on the juror’s

demeanor or challenge her specifically on this basis. In any

event, a juror’s emotional reaction, while relevant, is not

automatically disqualifying. (See generally Adams v. Texas

(1980) 448 U.S. 38, 50; Clark, supra, 52 Cal.4th at p. 897.) When

defense counsel asked the juror about her response, she

confirmed that she could set aside her knowledge of the

circumstances and focus only on the evidence presented. She

said that what she knew about the crime would not affect her

penalty determination. The trial court was in the best position

to assess the juror’s demeanor and the credibility of her

representations.

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Defendant also criticizes the trial court for limiting

defense counsel’s voir dire of this juror. Specifically, the court

sustained an objection to the following question: “if the jury

came to the conclusion that it was a first degree accidental

murder during a kidnapping or carjacking, do you have any

predeterminations as to what the sentence should be?” (Italics

added.) The court explained that it would allow defense counsel

to probe the jurors’ thoughts about possibilities like accident or

self-defense, but that referring to a verdict of “first degree

accidental murder” was misleading.

The trial court has considerable discretion to place

reasonable limits on voir dire, including the process of death

qualification. (People v. Jenkins (2000) 22 Cal.4th 900, 990.)

“ ‘[A]s we have said on many occasions, “[d]efendant ha[s] no

right to ask specific questions that invite[] [panelists] to

prejudge the penalty issue based on a summary of the

aggravating and mitigating evidence [citation], to educate the

jury as to the facts of the case [citation], or to instruct the jury

in matters of law [citation].” [Citations.]’ [Citation.] [¶]

‘Nevertheless, voir dire cannot be so abstract that it fails to

identify those jurors whose death penalty views would prevent

or substantially impair their performance . . . .’ [T]he defense

cannot be categorically denied the opportunity to inform jurors

of case-specific factors that could invariably cause an otherwise

reasonable and death-qualified juror to vote for death regardless

of the strength of the mitigating evidence.” (People v. Tate

(2010) 49 Cal.4th 635, 657–658.)

No error appears. Defense counsel had significant leeway

to probe the topic of penalty. He asked the juror if she was open

to the possibility that the victim’s death was an accident, and

she affirmed that she was. He then asked, if the jury returned

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a verdict of “murder [in the] first degree with kidnapping or

carjacking,” whether the juror’s knowledge about the case from

pretrial publicity would influence her penalty decision. The

juror said it would not. Counsel asked if the juror would equally

consider death and LWOP as punishments, and the juror said

she would. Counsel then asked what punishment the juror

would feel was appropriate for first degree murder during a

kidnapping or carjacking. She responded that she “would have

to hear all the details before [she] would be able to give any

opinion on that.” She affirmed that she would be willing to

listen to evidence of circumstances in mitigation, including the

defendant’s background, before she made up her mind about

penalty. This voir dire was ample. The trial court acted within

its broad discretion to curtail counsel’s implication that there

could be of a verdict of “first degree accidental murder.” There

is no such offense in the California legal lexicon.24

g. Juror No. 8

Juror No. 8 was a correctional officer at North Kern State

Prison. During voir dire, he explained that his job would not

cause him to be prejudiced against defendant. He treats the

inmates he works with as human beings and does not pass

judgment on them because they are incarcerated.

The juror had read two newspaper articles about the crime

at the time it was committed, and a third article about

24

An unintentional murder committed during the

commission of certain felonies may quality as murder in the first

degree, under the felony murder doctrine. However, defense

counsel did not mention felony murder, but instead referred to

the nonexistent crime of “first degree accidental murder.”

(Italics added.)

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defendant being captured trying to cross the border. He could

“[d]efinitely” set aside his knowledge of the case from outside

sources and not consider it in reaching a verdict. Although he

had checked a questionnaire box stating that he had an opinion

about defendant’s guilt, he clarified that he did not in fact hold

such an opinion. His only opinion was that defendant was

innocent until proved guilty.

The juror stated in his questionnaire that he believed the

death penalty was appropriate for deliberate murder. He felt

that LWOP sentences were not enforced because “our appeal

system has opened many doors to life without parole.” He

checked boxes on the questionnaire indicating that he was open

to both penalties and would listen to all of the evidence before

making a decision. The court probed these responses during voir

dire. It told the juror that “it’s going to be your duty to assume

that any sentence that’s selected by the jury will be carried out

ultimately, whether it be the death penalty or [LWOP].” The

juror explained that, during his employment, he had seen

inmates with LWOP sentences who “are gone [from custody].

One has to assume that they have either died or they were

released from prison. And it’s an assumption, your Honor. It’s

not a fact.” The juror confirmed that he could set aside that

assumption and accept that the sentence would be carried out.

The court emphasized that it would be improper for the juror to

return a sentence of death instead of LWOP simply because the

juror was concerned that defendant might be released from

custody. The juror agreed. He had “[n]o doubt” that he could

have an open mind about penalty and base his decision on the

evidence presented at trial.

In response to questions by defense counsel, the juror

stated that he did not believe the death penalty should be

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imposed for every first degree murder committed during a

kidnapping or carjacking. He favored the death penalty for an

intentional murder committed while “lying in wait.” When

asked by the court if he could set that view aside and base his

penalty decision on the evidence presented, the juror responded,

“I believe I could. I really do. Because, as I said, I stress very

strongly that, in my type of job, I try very hard not to be

judgmental. And I think I could.” He reiterated, “I’m satisfied

that I could be very fair.” He would consider the circumstances

of defendant’s background in making a penalty determination,

and could return a verdict of LWOP if the mitigating

circumstances warranted it. The court denied defendant’s

challenge for cause.

Defendant argues that the juror’s penalty views

warranted disqualification. Not so. The juror stated repeatedly

that he would consider all penalty options and could return an

LWOP sentence if warranted by the facts of the case. Giving

deference to the trial court, which had the opportunity to

observe and listen to the juror, the court’s ruling is fairly

supported by substantial evidence in the record. (People v. Holt

(1997) 15 Cal.4th 619, 651.)

Defendant also contends that the trial court erred in

limiting counsel’s questioning about circumstances in

mitigation. Specifically, counsel asked whether the juror would

consider defendant’s upbringing. He gave as an example: “If

evidence is presented at the penalty phase, for example, that the

defendant had some type of abused childhood or some problems

in childhood . . . .” The court interjected, and directed counsel to

“stay with the general nature of the juror’s duties to consider

circumstances in aggravation or mitigation and address it more

generally, please.” Defense counsel then asked more generally,

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“Are there circumstances regarding the defendant’s background

that you would not consider in mitigation?” The juror replied,

“I don’t know I think probably what you are trying to say is that

if someone has some problems as a child and that is the cause of

a violent crime later on in his lifetime should that be considered.

Is that what you are saying?” When counsel responded, “Yes,”

the juror said, “In some cases, yes, very much so” and confirmed

that he was “open to considering that evidence.”

Death qualification voir dire “ ‘must not be so abstract that

it fails to identify those jurors whose death penalty views would

prevent or substantially impair the performance of their duties

as jurors in the case being tried’ and ‘it must not be so specific

that it requires the prospective jurors to prejudge the penalty

issue based on a summary of the mitigating and aggravating

evidence likely to be presented.’ [Citation.] In striking this

balance, the trial court may not categorically deny the defense

an opportunity to inform prospective jurors of case-specific

factors that could invariably cause them to vote for death.”

(People v. Nieves (2021) 11 Cal.5th 404, 425–426 (Nieves).) Here,

notwithstanding the trial court’s admonishment, the juror

ventured back into the area of childhood circumstances and

affirmed that he believed them to be a significant factor in

mitigation. The topic was adequately covered.

h. Juror No. 10

Juror No. 10 worked for Kern County as a physician’s

assistant. She did not know any of the listed witnesses, but was

acquainted with people in the Bakersfield Police Department,

the county Sheriff’s Department, and doctors from the Kern

Medical Center. The people she mentioned by name were not

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called as witnesses in the case. She also knew the court

interpreter.

Juror No. 10 indicated in her questionnaire that she had

read about the case in the paper and heard others talking about

it. She did not recall specifics and any such information would

not affect her ability to be fair and impartial.

The juror indicated in her questionnaire that “[w]hile [she

was] somewhat in favor of the death penalty, [she did] not

believe it should be used as a punishment for most murder cases,

even where a life has been taken deliberately.” She believed

that each case is different and that the penalty depends on the

individual facts of the crime. Although the juror is Catholic, she

disagrees with her church’s position against the death penalty.

She confirmed during voir dire that she would consider

circumstances in mitigation and keep an open mind about both

penalties. Defense counsel and the prosecutor both

unsuccessfully challenged the juror for cause.

Defendant claims error. He repeats some of the details set

forth above but offers no analysis as to why the record shows the

juror could not be fair and impartial. Defendant observes that

the prosecutor joined in the challenge. But the prosecutor’s

concern was that the juror would not be able to vote for death

given her religious beliefs. That view does not demonstrate a

bias against defendant. In any event, the juror emphasized that

she would keep an open mind about penalty and base her

decision on the facts of the case. The trial court’s denial of the

challenge for cause was fairly supported by the record.

i. Juror No. 11

Juror No. 11 worked as a postal clerk. Her son was a Kern

County Sheriff’s Deputy. She knew two people on the potential

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witness list: Jill Johnson was the daughter of her friends from

church, and Steve Urner was her son’s partner in the sheriff’s

department. She affirmed that she would not view these

people’s testimony more favorably because of her relationship

with them. Ultimately neither of them testified.

The juror indicated in her questionnaire that the

involvement of street gangs in the case would not affect her

ability to be fair and impartial. Asked how she felt about street

gangs, she wrote, “They scare me.” She was not asked to

expound on this comment.

The juror stated in her questionnaire that she had seen

newspaper and television accounts of the case at the time of the

crimes but did not recall any details. During voir dire she

elaborated that she remembered the crime involved “teen-agers,

somebody was killed, it was out in Arvin . . . .” Her exposure to

pretrial publicity would not affect her ability to be fair and

impartial.

Asked on the questionnaire to circle the response that best

corresponded to her view on the death penalty, the juror circled

the following: “The death penalty should be imposed in every

case where someone deliberately takes another human being’s

life.” Asked if LWOP was an appropriate punishment for first

degree murder, she wrote, “I’m not sure — it would depend on

the circumstances.” During voir dire the juror again stated that

she believed death was the appropriate penalty for homicide in

the course of kidnapping or carjacking. When asked if she would

automatically vote for death under those circumstances, she

clarified: “Oh no. When I was circling that, in my mind — and

it was very confusing, the whole questionnaire, I think. [¶] . . .

[¶] But when I was getting down to that, I was thinking, okay,

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this is, when you break the law, this is the penalty. That’s what

I was thinking.” She confirmed that she would keep “a

completely open mind” between the two available penalties and

base her decision on the evidence presented at trial. The

prosecutor sought further clarification, asking, “If you are

saying, as you seem to indicate, that you would have an open

mind, can you see yourself considering life without parole even

though someone murdered somebody?” The juror responded, “I

guess, yes.” She continued: “Yes. Because, to me, it was very

confusing on the answers of the questions.” She affirmed that

she could impose a sentence of LWOP for a murder committed

during a carjacking or kidnapping, and that she would “have an

open mind” about penalty. The trial court then asked if the juror

was “satisfied that you can set aside any personal views or

opinions you have about the death penalty and follow the law

and keep an open mind as to the two possible penalties that

might be imposed here?” The juror responded, “Yes.” When

asked if she had “any doubt about that?” the juror replied, “No.”

Defense counsel questioned further. He observed that

when the juror said she could vote for LWOP, she “did not sound

certain in your answer, and you rolled your eyes to the top of

your head.” The juror apologized, saying, “It’s just very

confusing.” She again confirmed that she felt death was the

appropriate penalty for a killing during a kidnapping or

carjacking. The trial court denied defendant’s challenge for

cause.

Defendant argues that the juror’s preference for the death

penalty warranted her excusal. But the juror explained that she

found the questionnaire confusing. She clarified that her

understanding was that the death penalty was the punishment

provided by law. After being told that she could choose between

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death and LWOP, the juror confirmed that she could keep an

open mind about penalty and make her decision based on the

evidence. No more is required of a juror, even one who expresses

a preference for death. (Rountree, supra, 56 Cal.4th at p. 843;

People v. McKinzie (2012) 54 Cal.4th 1302, 1343–1345.)

Defendant argues that the juror contradicted herself

immediately thereafter by restating that she felt death was the

appropriate penalty for a killing during a kidnapping or

carjacking. Variations are not surprising, however, when a

juror is “less than consistent in her answers. ‘In many cases, a

[juror’s] responses to questions on voir dire will be halting,

equivocal, or even conflicting. Given the juror’s probable

unfamiliarity with the complexity of the law, coupled with the

stress and anxiety of being a [panelist] in a capital case, such

equivocation should be expected. Under such circumstances, we

defer to the trial court’s evaluation of [the] . . . juror’s state of

mind, and such evaluation is binding on appellate courts.’ ”

(People v. Moon (2005) 37 Cal.4th 1, 15–16, quoting People v.

Fudge (1994) 7 Cal.4th 1075, 1094.) The trial court’s finding

that Juror No. 11 could conscientiously consider all of the

sentencing alternatives is fairly supported by the record. 25

j. Juror No. 12

Juror No. 12 (previously Alternate Juror No. 3), worked at

Wasco State Prison as a personal services supervisor. Her ex-

husband was a Kern County Sheriff’s Deputy and one of her sons

was a correctional officer. She had learned about the case in

news articles and television reports, and had seen related

25

Defendant’s claim that the trial court erred in failing to

discharge Juror No. 11 for asserted bias revealed during the

trial is discussed post at part II.B.1.

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photographs. Specifically, she had heard that the victim was

bound and shot in the back of the head, “execution style” after

his truck was stolen. Her exposure to pretrial publicity would

not affect her ability to be fair and impartial, and she would base

her decision solely on the evidence presented in court. Defense

counsel noted that she had used the word “hope” in connection

with these statements and asked if she was concerned about her

ability to do that. The juror replied, “I would try to the best that

I could, to do what I needed to do.”

The juror was familiar with several persons on the witness

list, including Greg Justice, John Soliz, Glenn Johnson, Robert

Castaneda, Stan Moseley, and Patty Poeschel. Robert

Castaneda was a friend; the others were people she had met “a

long time ago” and no longer knew, had worked briefly with, or

recognized the name but did not know personally. She

confirmed during voir dire that she could set aside her

affiliations with the witnesses and judge them by the same

standard as anyone else. Only two of the people mentioned,

Glenn Johnson and Stan Moseley, actually testified. Regarding

Glenn Johnson the juror wrote: “met him a long time ago —

don’t know him now but see him on TV news.” Regarding Stan

Moseley, the juror wrote: “don’t know [him] — but have heard

name, either through ex-husband or TV or paper.”

The juror indicated in her questionnaire that her views on

the death penalty were best reflected by the following

statement: “While I favor the death penalty, I do believe there

are rare cases where the death penalty should not be imposed

even if someone has deliberately taken another human being’s

life.” She also wrote that “I often wonder how it will affect my

life should I choose to return a death penalty verdict.” Asked if

LWOP was an appropriate sentence for first degree murder, she

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wrote: “It would depend on the circumstances related to the

murder.” During voir dire the juror stated that she generally

felt the death penalty was a “good idea” but that she had “mixed

feelings” about it. Specifically, she felt that “I don’t have a right

to put my beliefs on somebody else about how I would feel as to

whether they should be put to death or not.”

The jury questionnaire asked: “At this point, before you

have heard the evidence, do you believe you are open minded

about what the penalty should be?” Juror No. 12 wrote, “No.”

During voir dire, the juror stated that she had misunderstood

the question. She affirmed that she had not predetermined

penalty and could be open minded. This clarification was

consistent with another answer on her questionnaire, where she

answered, “Yes” to the question: “If you were a juror at a penalty

phase, would you be able to listen to all the evidence, as well as

the judge’s instructions on the law, and give an honest

consideration to both death and life without parole before

reaching a decision?” When asked by defense counsel what she

felt was the appropriate penalty for first degree murder, she

replied, “I don’t have an opinion right now.” Defendant’s

challenge for cause was denied.

Defendant argues that the juror should have been excused

for cause because of her familiarity with the facts of the case

through news media. As noted above, total ignorance is not

required for juror qualification. (Cooper, supra, 53 Cal.3d at p.

807.) The juror had no concern that she could put aside what

she had heard and fairly and impartially judge the evidence

presented at trial. The trial court credited the juror’s

representation, taking into account her answers and demeanor.

Its ruling was fairly supported by the record.

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Defendant also argues that the juror’s views on the death

penalty warranted her excusal. But the juror was not a

particularly strong death penalty proponent. Although she

supported capital punishment in principle, she expressed

hesitation about personally returning such a verdict.

Ultimately, she was quite clear that she could keep an open

mind about both penalties, and that she would base her decision

on the facts of the case. Again, the trial court credited this

representation, taking into account the juror’s answers and her

demeanor. Its ruling was fairly supported by the record.

For the reasons discussed above, the trial court did not err

in denying defendant’s challenges for cause as to any of the

seated jurors. Because no incompetent juror was forced upon

defendant, his claim of error fails. (Black, supra, 58 Cal.4th at

pp. 920–922.)

5. Judicial Misconduct

In addition to challenging the for-cause rulings discussed

above, defendant claims that the court’s “overbearing, leading,

and directive voir dire, and refusal to remove biased jurors”

amounted to judicial misconduct. He maintains that the court

“refused to accept prospective jurors’ plain indications of bias or

prejudgment,” and used leading and suggestive questions “to

press until a juror said that he or she would do their duty.” He

further contends the court was “hypersensitive, quick to

threaten defense counsel, and unwilling to acknowledge error.”

The court’s conduct, he claims, evidenced actual bias in violation

of his state and federal constitutional rights.

These arguments were unsuccessfully raised in a motion

for mistrial, and reasserted in a motion to disqualify the trial

judge for bias. (Code Civ. Proc., § 170.1.) Another judge was

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assigned to rule on the disqualification motion. That jurist

considered written motions and reviewed approximately 6,700

pages of voir dire record. He subsequently found that the trial

judge was “very thorough in his voir dire of the jurors” and was

“very deliberate” in his effort to assure the jurors could fairly

and impartially judge the case. He found no evidence that “the

trial judge was anything but fair and impartial to both sides.”

He further observed that “[i]t is obvious from the record the trial

judge exhibited great tolerance, patience and judicial restraint

with the defense counsel’s conduct which bordered on insolence.”

He concluded: “the trial judge exercised patience and judicial

restraint in dealing with the many attacks alleging bias and

prejudice on the record of the trial court. It is also very apparent

that the trial judge carefully ruled on all objections and

conducted extensive voir dire to assure both the defendant and

the prosecution were to receive a fair trial. The court finds that

trial judge was neither bias[ed] nor prejudiced against the

defendant nor his counsel. The court further finds the

defendant’s allegation that he cannot receive a fair trial is

unfounded.”

a. Questioning of Panelists

“Trial courts must of course ‘be evenhanded in their

questions to [panelists] . . . and should inquire into the jurors’

attitudes both for and against the death penalty to determine

whether these views will impair their ability to serve as jurors.’

[Citation.] But the court has ‘broad discretion over the number

and nature of questions about the death penalty.’ ” (Mills,

supra, 48 Cal.4th at p. 189.) “We trust our trial courts

understand and appreciate the importance of the voir dire

procedure and the need to be ‘evenhanded’ in questioning

[panelists] in a capital case. [Citation.] We assume the trial

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court formulated its questions based on the individual

characteristics of each juror, including the juror’s questionnaire

answers and in-court demeanor. To second-guess these choices

would encourage the trial court to engage in substantially the

same questioning of all [panelists] irrespective of their

individual circumstance, something we have declined to do.”

(Id. at p. 190.)

Here, defendant complains, not that the court asked too

few questions (see Mills, supra, 48 Cal.4th at p. 189), but instead

that it asked too many, effectively rehabilitating jurors who

showed obvious bias. We have reviewed the record of voir dire,

with particular attention to the jurors identified by defendant in

support of his argument. We conclude the court did not commit

misconduct or demonstrate actual bias against defendant.

Nothing in the record suggests the trial court lacked

impartiality during voir dire.

i. Panelist J.D.

Defendant cites the voir dire of Panelist J.D. as an

example. J.D. worked as a correctional officer. When asked if

there was any reason he could not be fair, J.D. explained: “I

work in a setting where I deal with convicted felons on a daily

basis. And I have done that for 16 years. And it’s hard to be in

that environment and not become a little bit callused in the way

I view certain things.” The court asked if the panelist’s feeling

was related to this particular case or to criminal trials in

general. J.D. replied, “I don’t know anything about this case. I

think it would be in any case. I would probably tend to look more

on a negative way of looking at it. To be honest, it would

probably be harder for me to believe in innocence than guilt. I

have been trained in my job they are guilty, and that’s kind of

hard not to look at after 16 years. And I could try to be fair, and

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I really would. But I have thought about it since I was here last,

and, honestly, inside, I have become a little bit cynical in my job.

And I think that would affect me.”

The court stated that it wanted to explore this topic and

cautioned that it was “not trying to change any views or opinions

that you have.” The court explained that all panelists come to

the courtroom with feelings, opinions, and biases. The question

was whether J.D. could honestly assure the court that he could

set those views aside and not let them influence his verdict. The

panelist affirmed that he sets aside his biases every day at work

“[b]ecause I have to be fair at all times. It’s something that I

have been trained to do for a long time. I think I can do it, and

I would sure give it a try. I would do the best I could.” The court

then asked if J.D. thought he could decide the case based solely

on the evidence and the law. The panelist responded, “I would

definitely try my hardest. Honestly, I would have a hard time.

But I would be willing to make the effort to put it aside.”

The court then observed, “I’m not trying to put you in an

impossible situation here, where you really, you know, have a

serious doubt as to whether you can perform your duties.” The

court asked whether J.D.’s doubt was hypothetical and based on

potential human frailties, or if the panelist actually had a

reasonable doubt about his ability to perform his duties. J.D.

replied, “I believe I can do it, because I’m sitting here, being as

honest as I can with you, and that’s putting it aside in itself.”

The court continued to probe, asking if J.D. was truly satisfied

he could perform his duties “[b]ecause if you have some doubt

about it, I want you to tell me.” J.D. replied, “I do have a doubt

about it. It would be a daily thing that I have to deal with.” The

court then asked if it would be difficult or impossible task. J.D.

replied, “I don’t think it would be difficult or impossible. I think

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it would be reasonable. I would expect every juror to be able to

do it to an extent, and I believe I could do it to that extent that

you are asking.”

The court asked, “Are you feeling pressured in any way to

give me the right answers here?” J.D. responded, “No. No, I’m

not.” The court repeated that it needed the panelist’s “honest

response” and that he should not be embarrassed to share his

feelings or be concerned that the court would be upset with him.

J.D. replied, “I can perform my duties.” The court asked

whether the panelist had any doubt, and J.D. replied, “There’s

a little doubt.” The court asked J.D. to explain, and he replied,

“[I]t’s just daily situations I have had to face every day. My

whole attitude has gone to the cynical side of life. It’s kind of

sad to say, but, in being fair here, I would make the effort to

keep it centered best I can. [¶] .

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