People v. Valdez

Filed 8/9/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S062180

v. )

)

RICHARD VALDEZ, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BA108995

____________________________________)

A jury convicted defendant Richard Valdez of five counts of first degree

murder (Pen. Code, §§ 187, subd. (a), 189)1 and, as to each count, found true

special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and

gang and weapon enhancement allegations (§§ 186, subds. (b)(1), (b)(2), 12022,

subd. (a)(1), 12022.5, subd. (a).) The jury returned a verdict of death as to each of

the victims. The trial court denied the automatic application to modify the verdict

(§ 190.4, subd. (e)) and sentenced defendant to death for the five murders. This

appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

1 All further unlabeled statutory references are to the Penal Code.

1

I. FACTS

A. Guilt Phase

On April 22, 1995, the bodies of three adults – Anthony ―Dido‖ Moreno,

his sister, Maria Moreno, and Gustavo ―Tito‖ Aguirre – and two of Maria‘s

children – five-year-old Laura Moreno and six-month-old Ambrose Padilla – were

found at Maria‘s apartment on Maxson Road in El Monte, California.2 The

evidence presented at trial established that defendant, who was a member of the

Sangra street gang, shot and killed Anthony and Gustavo while his codefendant

and fellow Sangra gang member Jimmy Palma shot and killed Maria and the

children.

1. Prosecution Evidence

The Mexican Mafia was formed in 1957 as a prison gang and, by 1977,

controlled most of the criminal activity inside California‘s prisons. Eventually, it

extended its influence outside of the prison system and came to exert control over

virtually all Hispanic street gangs in Southern California, including Sangra and El

Monte Flores. Hispanic gang members are essentially ―soldiers‖ of the Mexican

Mafia and would probably be beaten up or killed for refusing to carry out a

Mexican Mafia order. Mexican Mafia members take a ―blood oath‖ when they

join and ―death is the only way out‖; those who attempt to leave the gang are

eventually killed, even 10 or 15 years after their disassociation. Dido was a

member of the Mexican Mafia from 1973 until he dropped out in the mid 1980‘s.

In January 1995, Raymond Shyrock, a Mexican Mafia leader, stated at a Mexican

Mafia meeting: ―I don‘t know if you have ever heard of this brother Dido. He

2 For simplicity and to minimize confusion, we will generally refer to

the victims by their nicknames or first names.

2

dropped out a long time ago. He‘s in an apartment where I was living. The

mother fucker was living right downstairs but never showed his face. All kinds of

people in the pad, bunch of young sisters and kids, all kinds of shit. So I‘m trying

to figure out how to – I need a silencer is what I need.‖

On April 22, 1995, Dido and Maria were living in Maria‘s apartment along

with her children. In the afternoon, a car parked in Maria‘s driveway.

Simultaneously, a Jeep containing four Hispanic men stopped in front of a

neighbor‘s driveway and idled. Early that afternoon, Sangra gang member

Anthony ―Scar‖ Torres had borrowed a Jeep for about 10-20 minutes from Sangra

gang member Victor Jimenez. Four tall, bald, Hispanic men wearing white t-shirts

exited the car. One of them had a tattoo on his neck with chain letters. Another

had a heavy build. The four men walked toward Maria‘s residence.

About 2:30 p.m., Luis Maciel, who was a Mexican Mafia member and a

former member of El Monte Flores, approached Dido and his brother – Witness

No. 153 – in Maria‘s driveway. With him were two younger men, one of whom

had an El Monte Flores gang tattoo on his arm. When the men arrived, Tito, who

was at the apartment, ran inside and hid. Tito, who was a drug user, had robbed

several Hispanic drug dealers, including at least one who was paying ―taxes‖ to

the Mexican Mafia. This would have subjected him to being killed by the

Mexican Mafia. Maciel spoke with Dido and Witness No. 15 for about 30

minutes. He seemed nervous and unusually talkative. As he spoke, he faced the

apartment‘s door and periodically looked inside, enabling him to see Maria and

her children. He asked about Witness No. 15‘s family and Tito‘s whereabouts. At

some point, he offered Dido and Witness No. 15 heroin, which the latter found

3 As later explained in more detail, many of the trial witnesses were

identified in the written record by number to protect their safety.

3

―suspicious‖ because, in his experience, ―people don‘t normally give away drugs.‖

Maciel and his companions eventually returned to the car and drove off. Maciel

later met with Palma, Witness No. 14, who was an El Monte Flores gang member,

and another gang member known as ―Diablo,‖ at Maciel‘s house. Palma arrived

in a Nissan Maxima owned by fellow Sangra gang member Danny ―Tricky‖

Logan. Maciel told Palma, ―if anything happens to me, go ahead and contact

Diablo.‖ Palma stated he ―was going to take care of some business‖ for Maciel

and was ―strapping,‖ meaning he was carrying a gun. At Maciel‘s direction,

Witness No. 14 gave Palma a small amount of heroin that Maciel had retrieved

from his house.

In the late afternoon, Palma asked fellow Sangra gang member Witness No.

16 for a ride to his sister‘s house. While the two men drove around, Palma said he

was expecting a page and, after receiving it, would need Witness No. 16 to take

him to the Alhambra house of fellow Sangra gang member Torres. Palma said

―they had to take care of something‖ and ―the brothers wanted him.‖

Witness No. 13, who was Torres‘s sister, arrived at Torres‘s house about

7:00 or 7:30 p.m. A short time later, two men arrived looking for Torres; one had

a ―Sangra‖ tattoo on his neck and said his name was Jimmy. Jimmy Palma had a

―Sangra‖ tattoo on his neck. Torres was not at home, and the two men left. Torres

later arrived at the house accompanied by defendant, who was a Sangra gang

member known as ―Primo.‖ They went into Torres‘s room and started making

telephone calls. More Sangra gang members, including Palma, Logan, Jose

―Pepe‖ Ortiz, ―Creepy,‖4 and Witness No. 16, subsequently arrived and went into

Torres‘s room. At some point, Ortiz, who seemed to be in charge, stated that there

4 ―Creepy‖ was never identified at trial by his real name.

4

was ―a problem in El Monte‖ and that they had to go there ―to take care of

something.‖ Witness No. 16 understood Ortiz‘s comment to mean they were

going to kill someone. While in Torres‘s room, Ortiz and Palma took

methamphetamine and Palma shaved his head.

Sometime before 9 p.m., the men left for El Monte in two groups. Logan

drove in his Nissan Maxima with defendant, Palma and Torres, and Witness No.

16 followed in his Ford Thunderbird with Ortiz and Creepy. When they arrived in

El Monte, Logan pulled into, or stopped in front of, Maria‘s driveway on Maxson

Road and turned off his headlights. Witness No. 16 drove a few blocks further

down the street, pulled over, and turned off the car and the headlights. Ortiz

exited the Thunderbird, walked back toward Maxson Road and looked up and

down the street. According to several witnesses who were visiting Maria‘s

neighbors that night, the driver of the Nissan remained in the car while three

Hispanic men exited and walked down Maria‘s driveway. After six to eight

gunshots rang out, the three men – one holding a handgun – ran back to the

Nissan, which then drove away with its lights off. Witness No. 8, who was one of

Maria‘s neighbors, also heard several gunshots at Maria‘s apartment. A short time

later, Maria‘s six- or seven-year old son – crying, screaming, and covered in

blood – came to Witness No. 8‘s house and said his mother and siblings had been

shot. Witness No. 8 then called the police.

Ortiz returned to Witness No. 16‘s car as police began to arrive and said

―Let‘s go,‖ ―Let‘s get out of here.‖ When they returned to Torres‘s house,

Logan‘s Nissan was already in the driveway and defendant, Palma, Logan and

Torres were inside listening to a police scanner ―to see if the people were dead.‖

The men began discussing the shootings on Maxson Road. In front of defendant,

Palma said that, while he showed a man some heroin, ―Primo had shot him in the

head.‖ He also said that, ―after the man had got shot,‖ ―the lady with the baby said

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that it wasn‘t her problem,‖ at which point he ―pulled out the gun and shot her and

let off rounds on the kids.‖ Defendant confirmed Palma‘s statements, explaining

that ―he had shot one guy in the temple and another guy running away from him.‖

Torres said he had ―stood by the door with the shotgun making sure nobody would

walk up.‖ Logan drove the Nissan and waited in the car while the murders took

place.

Responding to Witness No. 8‘s call, police arrived at the scene of the

shooting about 10:40 p.m. They found Dido lying on the ground in a pool of

blood just outside of the door to Maria‘s apartment. Inside the door, Maria was

lying face down on the floor in a pool of blood. Next to her, Laura was lying face

down in a pool of blood and Ambrose was lying on his back with a gunshot

through his eye. Tito was lying face down between the bed and the wall. A three-

or four-year-old girl was hiding in the corner.

Dido died from a single gunshot to the head. The bullet entered his skull

near the right ear and exited from the left side. A contact wound to the skin

indicated that the gun had been pressed to his head when fired. Tito died from a

gunshot to the top of the head. A contact wound indicated that the gun had been

pressed to his head when fired. Tito also had a nonfatal gunshot wound through

his left shoulder. The position of his body was consistent with his having been

shot while he was lying at least partially on the bed. Maria died from a gunshot to

the head, which had been fired from a distance of a few inches to one foot. She

also had a nonfatal gunshot wound to her right buttock. Laura died from a gunshot

to her torso, which had entered her back, punctured her lung, and exited from her

chest. The angle of the wound suggested she was probably seated or lying down

or slightly bent over when she was shot. Ambrose died from a gunshot that

entered his right eye and traveled through his mouth, the base of his brain, and his

6

spinal cord before exiting from the back of his neck. A hole in the pillow

underneath him suggested he was lying on his back when shot.

During subsequent investigation, police discovered ballistics evidence

linking defendant to the Maxson Road shootings. In a house he had lived in until

early April 1995, they found an expended .38- or .357-caliber bullet. They

recovered similar caliber bullets from a bathroom wall at Maria‘s apartment and

from Tito‘s head. All three bullets had the same general rifling characteristics and

had been fired from a revolver. In a condominium defendant had moved into

shortly before the shootings, police found in a bedroom closet a bag of

unexpended bullets, some of which were .45-caliber. They recovered two .45-

caliber bullets from Maria‘s body and, at the crime scene, several .45-caliber

bullet fragments, a complete .45-caliber bullet, and several .45-caliber shell

casings. The bullets recovered from Maria‘s body and the bullet and bullet

fragments had all been fired from the same semi-automatic weapon. In addition,

the .45-caliber shell casings had at some point been chambered in the same firearm

as the two unexpended .45-caliber bullets found at defendant‘s condominium.

Police also discovered and collected other evidence linking the various

participants to each other and to the shootings. Pager and telephone records

showed that Maciel was paged three times from Ortiz‘s residence on April 22,

1995, and five times from Torres‘s house that evening between 9:20 and 11 p.m.

Between 11:00 p.m. and midnight that night, five calls were placed from Torres‘s

residence to a pager registered to Veronica Lopez, who was defendant‘s former

girlfriend. The next day, Maciel was paged once from Ortiz‘s residence, twice

from Torres‘s, and three times from Palma‘s.

The morning of May 2, 1995, police saw Logan arrive in his Nissan at

Palma‘s house. Defendant was in the passenger seat. They left after speaking

7

with Palma for about 2 minutes. Later, Witness No. 16 picked up Palma in his

Thunderbird and took him on various errands before returning to Palma‘s house.

On May 15, 1995, about two hours after police arrested Palma and took

him to the Los Angeles County jail, a call was placed from the jail to the

condominium defendant had moved into in early April. About 10 minutes later, a

call was made from the jail to Palma‘s residence. Less than 30 minutes later, a

call was made from the condominium to Logan‘s residence. About 50 minutes

later, a collect call was made from the jail to the condominium. After the call to

Logan‘s residence but before the last call to the condominium, police saw Torres

leave the condominium in a Jeep. They pursued Torres, who eventually

abandoned the Jeep, fled on foot, and took refuge in the house of his girlfriend, Jill

Steele. They surrounded the house and would not let Steele enter. She spoke with

Torres by telephone and then, at his request, called defendant. Meanwhile, police

spotted Logan at a nearby restaurant with another Sangra gang member. In

Logan‘s Jeep, they found a change of clothes. Eventually, they entered Steele‘s

house and arrested Torres.

2. Defense Evidence

Defendant denied any involvement in the murders. He maintained that,

although he had once had been a Sangra gang member, he was not a member at

the time of the murders. He attempted to elicit testimony to support this

contention during cross-examination of several prosecution witnesses. He also

offered a stipulation that Torres‘s mother, who shared her house with Torres, had

not identified him from a photographic lineup. During cross-examination of other

prosecution witnesses, defendant attempted to develop evidence that a gang called

the Border Brothers may have committed the murders because Tito had robbed

drug ―connections‖ associated with that gang.

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Defendant also called three witnesses. His best friend, Randi Chavers,

testified that he had never seen a gun in defendant‘s residences and had seen

defendant shoot a gun only once, at a public shooting range in 1993. Richard

Valdemar, a gang expert who was also a prosecution witness, testified that, after

listening to an enhanced recording of Shyrock‘s comments at the January 1995

Mexican Mafia meeting, he did not believe Shyrock had ordered the children

killed and had not intended that they be killed. Defendant introduced this

testimony to counter Valdemar‘s earlier testimony, based on an unenhanced

recording of the meeting, that Shyrock had wanted to ―silence‖ Maria and her

children. Trent Hampton, defendant‘s stepfather, testified that defendant was in

Utah during all of May 1995. To support this testimony, defendant introduced

into evidence an airline ticket issued to Richard Valdez for an April 30 flight from

Ontario, California, to Salt Lake City, Utah, and a stipulation with the prosecution

that someone named Richard Valdez flew from Ontario, California, to Salt Lake

City, Utah, on April 30, 1995. Defendant introduced this evidence to counter the

prosecution‘s evidence that police had seen him at Palma‘s house on May 2.

Palma called one witness, David Hooker, a state prisoner who testified

regarding his conversations with Witness No. 14 while they were in prison

together. Witness No. 14 testified for the prosecution that, during a meeting with

Maciel on April 22, 1995, Palma said he was ―going to take care of some

business‖ for Maciel and was ―strapping.‖ According to Hooker, sometime in

May 1996, Witness No. 14 said he was in protective custody because the Mexican

Mafia had a ―green light‖ on him due to his ―involve[ment] in a thing where some

kids got killed during a murder.‖ Witness No. 14 explained to Hooker that (1) he

sold drugs in partnership with a Mexican Mafia member, (2) on the day of the

murders, he threatened a customer who owed money for drugs, and (3) when the

9

customer did not pay despite the threat, he went to the Mexican Mafia member

and ―arranged to get some vatos from San Gabriel to take the puto out.‖

B. Penalty Phase

In its case-in-chief, the prosecution presented no additional evidence in

aggravation against defendant.

Through several witnesses, defendant presented evidence regarding his

upbringing, including the following: (1) he was raised and educated in the

Catholic religion and received the sacraments of reconciliation and holy

communion; (2) in grade school he played Pop Warner football and Little League

baseball; (3) in a ninth grade electronics class, he received an A one semester and

a B another semester, and in both semesters received an ―O‖ for ―outstanding

citizenship‖; (4) the teacher of the electronics class viewed defendant as being

―very responsible,‖ ―hard working,‖ intellectually above average, and one of his

better students; (5) in 1992, he enrolled in ITT Technical Institute after receiving

high scores on the entrance examination; (6) he joined the Navy Reserves and

participated in naval duties; and (7) while living with his grandfather after high

school, he cared for his grandfather, worked at an auto body shop and a print shop,

and helped support his younger brother, who was heavily into drugs.

Defendant presented testimony from three witnesses about his ability to

make a positive contribution in prison. Dr. Ronald Fairbanks, a licensed clinical

psychologist who interviewed defendant twice, testified that defendant likely had

―above average‖ intellectual abilities and could be productive in prison if given

opportunities to work or assist others with reading or obtaining library materials.

Jesus Avila, who was housed in a cell near defendant‘s in the Los Angeles County

Jail, testified that defendant had helped him with writing, spelling, speaking, and

drawing, and was friendly with other prisoners. Defendant‘s father testified that,

10

based on defendant‘s school performance, defendant ―could be productive in

society through a prison system‖ and would be able to get his G.E.D.

In rebuttal to defendant‘s evidence, the prosecution presented testimony

from Anthony France, who had been a campus supervisor at San Gabriel High

School when defendant was a student. According to France, in December 1991,

he detained defendant after breaking up a fight on campus. Defendant called

another supervisor his ―bitch‖ and threatened to ―kick his ass.‖ Defendant later

told France he was ―going to put a bullet in [France‘s] head.‖ On cross-

examination, France testified he had not taken defendant‘s threat seriously, it was

not the first time a student had threatened him at a high school, and defendant‘s

threat to put a bullet in his head was a ―standard phrase‖ students used when

security officers broke up fights.

II. PROCEDURAL HISTORY

On September 20, 1995, a Los Angeles County grand jury returned an

indictment charging defendant, Palma, Logan, and Torres with five counts of

murder in connection with the events of April 22. As to each count, the

indictment also alleged a multiple murder special circumstance (§ 190.2, subd.

(a)(3)) and gang and weapon enhancements (§§ 186, subds. (b)(1), (b)(2), 12022,

subd. (a)(1), 12022.5, subd. (a).) In December, the grand jury returned an

amended indictment containing identical charges and adding Ortiz and Maciel as

defendants. In September 1996, the court ruled that defendant and Palma would

be tried together before a single jury and ordered separate trials for the other

defendants.

Jury selection began on September 30, 1996, and a jury was sworn on

October 17, 1996. Counsel began opening statements on October 21, 1996. The

jury began guilt phase deliberations on November 18, 1996, and declared an

impasse on November 25, 1996. It resumed deliberations after further instructions

11

from the court. On November 27, 1996, the court excused a juror who declared

she could not, under any circumstances, impose the death penalty and could not be

objective during the guilt phase in light of the possibility of a penalty phase. It

replaced the juror with an alternate and, on December 2, 1996, instructed the jury

to begin deliberations anew. On December 4, 1996, the jury returned guilty

verdicts on all counts and found all allegations true. The penalty phase began on

December 9, 1996, and concluded on December 13 with jury verdicts of death.

On June 11, 1997, the trial court denied motions for new trial and applications to

modify the verdicts, and sentenced defendant and Palma to death. This appeal is

automatic.5 (§ 1239.)

III. DISCUSSION

A. Nondisclosure of Witnesses’ Identities

Defendant alleges numerous errors in connection with protective orders the

trial court issued delaying and limiting disclosure of the identities of certain

prosecution witnesses. For reasons explained below, defendant‘s claims fail.

1. Background

At the prosecution‘s request, on September 29, 1995, nine days after the

return of defendant‘s indictment, the Hon. James Bascue, who was the presiding

judge of the grand jury, ordered redaction from the grand jury transcripts of the

names of 13 grand jury witnesses and certain identifying information regarding a

14th witness. He also ordered defense counsel not to show or provide copies of

the transcripts to anyone absent further court order. Judge Bascue found

―overwhelming good cause‖ for these orders based on the prosecution‘s showing

5 Palma was killed in San Quentin State Prison on October 13, 1997.

We ordered his appeal permanently abated.

12

that the life of anyone who testified would be ―extremely and seriously in danger.‖

On October 19, 1995, Judge Bascue issued a second order sealing the grand jury

transcripts and exhibits. The order provided that each defense counsel was to

receive a redacted copy of the transcripts, but could not share the transcripts with

anyone absent further court order.

About six weeks later, on November 7, 1995, after transfer of the case to

the superior court, Judge Robert Dukes revisited the issue upon defense counsel‘s

motion for greater disclosure of the witnesses‘ identities. After conducting an in

camera hearing pursuant to section 1054.7, at which the prosecution presented

evidence, Judge Dukes ordered continued redaction of the witnesses‘ identities

and addresses. However, he also ordered the prosecution to make the witnesses

available for interview by defense counsel and/or their investigators or for

lineups. Judge Dukes order also specified that: (1) defense counsel could not

disclose to their clients, or put into any report, witness identities they discovered

as a result of the interviews; (2) the prosecution could provide defense counsel

with information about witnesses‘ prior convictions if the witnesses‘ identities

were not revealed; and (3) defense counsel could obtain police reports regarding

the crimes if the witnesses‘ names, addresses, and information pointing to their

identities and residences were deleted. Judge Dukes invited defense counsel to

return to court should they feel the order needed amending.

A few months later, Judge J. Stephen Czuleger, to whom the case was

initially assigned for trial, decided to consider the issue de novo and ordered the

prosecution to make a new showing to justify nondisclosure. In March 1996, after

the prosecution presented evidence at an in camera hearing pursuant to section

1054.7 and the parties presented argument, Judge Czuleger issued a written order

providing: (1) the identities of 10 ―stranger‖ witnesses — those who do not know

any of the defendants and who are not connected to a gang — and the identity of

13

Witness No. 13 were to remain undisclosed and ―will be made available at the

time the witness[es] testif[y],‖ and their addresses and telephone numbers were to

be ―permanently‖ undisclosed; (2) the identities, addresses, and telephone

numbers of the remaining witnesses were to remain undisclosed until further court

order; (3) upon 15 days‘ written notice, the prosecution was to make any witness

available once for a recorded interview by defense counsel at the prosecution‘s

office, the prosecution could be present during the interview if the witness so

requested, and any party could memorialize the interviews by tape recording or

stenographic reporter; (4) the prosecution must give defense counsel a record of

any convictions suffered by the witnesses, but could redact from that record any

case number or identifying information; (5) defense counsel, upon learning a

witness‘s identity, place of residence, or place of employment could not disclose

this information ―to any person,‖ but could disclose a witness‘s identity to the

client ―if such disclosure is necessary to adequately represent their client,‖

provided that such disclosure as to the ―stranger‖ witnesses and Witness No. 13

could not occur absent prior court order; (6) defense counsel and their

investigators could review with their clients police reports, court transcripts, and

grand jury proceedings, but could not give any of this material to anyone absent

court order; (7) the prosecution could redact from all police reports the witnesses‘

names and all information that would reveal their identities, addresses, telephone

numbers, or places of incarceration; (8) until further court order, the previous

court-ordered redactions of the grand jury proceedings would remain in effect and

the grand jury transcripts, witness lists, and exhibits would remain sealed. Judge

Czuleger‘s order recited that it was based on ―good cause having been shown as to

threats and/or possible danger to the safety of witnesses.‖

In September 1996, after reassignment of the case for trial to the Hon.

George Trammel III, the nondisclosure issue arose again in connection with

14

defense counsel‘s request for videotapes of witness interviews. The prosecutor

explained his assumption that, under the existing orders, he would disclose the

witnesses‘ identities to defense counsel ―a day or two before they testify.‖ Judge

Trammel, after stating that he could not revisit the prior rulings absent new and

previously unavailable information, stated: ―I will require that at least 48 hours in

advance of any witness testifying that their particular tape be actually turned

over. . . . [Defense counsel has] my assurances, if the redacted portions, if you‘re

able to show you need a mid trial continuance for the purposes of doing some . . .

material investigation, you‘ll get it. You have my word on that.‖

During jury voir dire on October 2, 1996, Palma‘s counsel complained that

the existing court orders, though allowing him to read to his client the information

in the police reports and grand jury transcripts, prohibited Palma from actually

looking at that material. The prosecution disagreed with defense counsel‘s

interpretation, arguing that the court‘s orders precluded defendants not from

reading the material, but from keeping copies of it. Judge Trammell then clarified

that, under the court‘s orders, defendants could read the material but could not

―walk away with it.‖

On Wednesday, October 16, 1996, five days before trial began, defendant‘s

counsel requested that the prosecution provide the witnesses‘ names so he could

review them with defendant. The prosecutor responded in part that the witnesses

were still in danger. He also noted that defendant‘s counsel had received ―rap

sheets as far as [the witnesses‘] felony convictions,‖ and had ―been given an

opportunity to interview in person the vast majority of the witnesses.‖ Judge

Trammell then explained that, ―to strike a balance‖ between the prosecution‘s

concern for the witnesses‘ safety and defendant‘s right to a fair trial, he would

―withhold [the witnesses‘] names with this understanding, that when one of these

witnesses takes the stand that [defense counsel] will have the right before [they]

15

begin cross examination if [they] can give a good cause reason for delaying cross

examination because [they] didn‘t know who the person was, I will give it to

you. In other words, I am not about to let . . . or make [defense counsel] start to

cross examine until [they] are fully prepared.‖ After the court‘s ruling, the

prosecution indicated its intent to identify the witnesses ―within a couple of days

of their testimony.‖ It also stated that it had no objection to giving defense

counsel the names of ―some of‖ the witnesses ―on Friday with the understanding

that they not tell their clients‖ the names of the ―stranger‖ witnesses. The court

stated that it wanted to defer its decision on the prosecution‘s suggestion. After

addressing other matters, it concluded the day‘s proceedings by stating: ―To the

extent as the case moves on, if [the prosecution] can keep counsel apprised of who

the witnesses next up will be for the next day so that they can use the evening to

prepare for cross examination, again, that would be helpful.‖

Before opening statements began on October 21, the court asked the

prosecution whether it wanted to refer to the witnesses by number or name. The

prosecution responded that it wanted to use numbers, in order to keep the

witnesses‘ identities out of the public record. It also stated that, ―at this point,‖ it

was ―willing to give‖ defense counsel the names of all unidentified witnesses, so

long as defense counsel did not repeat the information to anyone ―unless they can

articulate a reason why they need to.‖ Palma‘s counsel objected that identifying

the witnesses by number instead of by name would be prejudicial. After agreeing

with Palma‘s counsel, the court explained that defense counsel was ―going to get

the names‖ but could not reveal that information to their clients absent a showing

of good cause. The prosecution then suggested that the witnesses be identified at

trial by aliases.

The next morning, before opening statements resumed, the prosecutor

expressed concern about using aliases and suggested that the witnesses instead be

16

identified by name in court but only by number in the transcript. During his

remarks, the prosecutor noted that he had given Palma‘s counsel ―the names of the

two people who may testify today,‖ that he had not had ―an opportunity to talk to‖

defendant‘s counsel, and that ―at the recess at 11:00 we are going to go over the

other list of names.‖ Later that morning, ―Witness No. 9‖ — one of the ―stranger‖

witnesses — began testifying. After a three-hour lunch recess, she resumed her

direct testimony. She was followed by Witness No. 8, another of the ―stranger‖

witnesses. Although given the opportunity, defense counsel declined to cross-

examine either witness.

The next afternoon, October 23, the prosecution called three more of the

―stranger‖ witnesses: ―Witnesses Nos. 1, 2 and 3.‖ Defense counsel cross-

examined two of these witnesses. On October 24, the prosecution called

―Witnesses Nos. 13 and 15.‖ Witness No. 13‘s testimony concluded on October

28, after a three-day break. Defense counsel cross-examined both of these

witnesses extensively.

The morning of Friday, October 25, the prosecution asked the court to order

that defense counsel ―not tell . . . their clients which witnesses are going to be

testifying the next day.‖ He explained that, on the previous Wednesday, he had

informed defense counsel ―in front of their clients‖ that Witness No. 15 would be

testifying on Thursday and that there was evidence steps had thereafter been taken

to have the witness killed. He further explained: ―I have no problem with telling

[defense counsel] the expected order that I believe we‘ll have for the rest of the

trial. I‘ve been letting them know the day before but I will even tell them for the

rest of the trial. I have no problem with that whatsoever. And I have told them . . .

the true names of the witnesses. But I do want an order. And the mistake I made

the other day was saying it in front of the defendants, . . . and I could have cost a

man his life. But I do want an order that the defendants not be told by their

17

counsel, the prospective order of witnesses.‖ The court granted the prosecution‘s

request and ordered defense counsel ―not to divulge to their clients directly or

indirectly the order in which witnesses are called.‖ Based on the evidence, the

court found that the witnesses‘ lives and safety ―far outweigh[ed]‖ any detriment

to the defense ―in a defendant not knowing who‘s coming the next day.‖

In response to the court‘s ruling, defendant‘s counsel, after stating he was

―glad‖ the prosecution had ―been telling us the night before [so] at least we can

open the book at least and prepare,‖ asked that the court give him some time to

prepare for cross-examination after a witness takes the stand. The court

responded: ―If it is a reasonable amount of time, certainly. If it is a couple of

days, no. But if it is a matter of 10 or 15 minutes or 20 minutes, I have no

problem with that. I think under the circumstances it is reasonable . . . . Again, I

am not real concerned with the time on this case anymore. I am not saying that

you can have several days but certainly that‘s not an unreasonable request and I

am certainly inclined to go along with it.‖

Regarding the court‘s statement that the danger to the witnesses outweighed

any detriment resulting from the defendants‘ failure to know who would be

testifying the next day, Palma‘s counsel then interjected: ―One additional matter

so the record‘s clear as [to] our position on this. . . . I think what our position has

been . . . in this it is not that we just don‘t know who the witness is going to be the

day before, we don‘t know who the witnesses are at all. . . . We have been

handcuffed all through the preparation of this case because of this restrictive order

and I just want that to be part of the record.‖ The court responded by assuring

Palma‘s counsel that he, like defendant‘s counsel, would ―be given a reasonable

amount of time [before beginning for cross-examination] and I suppose what is

reasonable would depend on the circumstances. You‘re not going to find me . . .

to be trying to rush this case along because . . . it‘s moving along quite quickly.‖

18

Two more protected witnesses — Witnesses Nos. 14 and 16 —

subsequently testified for the prosecution. The former testified on October 30,

and was cross-examined by both defense counsel. The latter began his testimony

on October 31 and, four days later, on November 4, returned to the stand for an

extensive cross-examination by defense counsel that consumed almost the entire

day of trial.

2. Alleged Violation of Constitutional Rights

Defendant asserts that, by withholding the witnesses‘ identities, the trial

court violated his constitutional rights to due process, to a fair trial, to confront

witnesses and to a reliable determination of death judgment. His assertions lack

merit.

The starting point for our conclusion is Alvarado v. Superior Court (2000)

23 Cal.4th 1121 (Alvarado), where we dealt with somewhat similar disclosure

issues. There, a grand jury, based on the testimony of three inmate witnesses,

returned an indictment charging two jail inmates with murdering another

inmate. (Id. at p. 1126.) The prosecution provided the defendants with transcripts

of the witnesses‘ grand jury testimony and information regarding their criminal

histories, but refused to disclose their identities; the transcripts identified them

only by witness number. (Id. at pp. 1127-1128.) After holding a series of in

camera hearings from which it excluded the defendants, the trial court entered a

protective order providing as follows: (1) the prosecution could permanently

withhold the witnesses‘ identities; (2) the prosecution had to produce the witnesses

for interview by defense counsel 30 days before trial, although the witnesses did

not have to speak with counsel or disclose their names; (3) if defense counsel

learned the witnesses‘ names, they could not disclose them to defendants; and (4)

the witnesses did not have to disclose their names even at trial. (Id. at pp. 1128-

19

1130.) After the Court of Appeal upheld the order, we granted review to

determine whether the order violated the defendants‘ ―constitutional rights to due

process of law and to confront the witnesses against them.‖ (Id. at p. 1132.)

We first held in Alvarado that the protective order was valid insofar as it

permitted pretrial nondisclosure of the witnesses‘ identities. (Alvarado, supra, 23

Cal.4th at pp. 1134-1136.) As a statutory matter, we explained, although the

prosecution must generally disclose at least 30 days before trial the names and

addresses of persons it intends to call as witnesses at trial (§§ 1054.1, subd. (a),

1054.7), ―section 1054.7 establishes that a trial court has discretion to deny,

restrict, or defer disclosure for good cause,‖ which ―expressly includes ‗threats or

possible danger to the safety of a victim or witness.‘ [Citation.]‖ (Alvarado,

supra, at p. 1134.) The trial court properly found good cause, we reasoned, based

largely on evidence that the Mexican Mafia had ordered the homicide, posed an

extreme danger to government witnesses, had an excellent intelligence network

and, before approving a contract to kill a witness, demanded documentation

identifying an individual as a government witness. (Id. at pp. 1128-1129,

1136.) Constitutionally, we continued, no authority suggests that section 1054.7,

insofar as it authorizes ―the denial of pretrial disclosure‖ based on concerns for

witness safety, is ―unconstitutional under either the confrontation or the due

process clause.‖ (Alvarado, supra, at pp. 1135, 1134.) Moreover, in rejecting the

defendants‘ constitutional attacks on pretrial nondisclosure, we relied on high

court decisions for the following propositions: (1) ― ‗the right of confrontation is a

trial right‘ ‖; (2) ― ‗[t]here is no general constitutional right to discovery in a

criminal case‘ ‖; and (3) ― ‗the Due Process Clause has little to say regarding the

amount of discovery which the parties must be afforded.‘ ‖ (Id. at pp. 1134-1135.)

However, we further held that the protective order exceeded constitutional

bounds insofar as it authorized ―crucial witnesses whose veracity and credibility

20

[were] likely to be central to the prosecution‘s case‖ to testify at trial without

disclosing their identities during their testimony, where ―nondisclosure would

significantly impair the defense‘s ability to investigate or effectively cross-

examine them.‖ (Alvarado, supra, at pp. 1146-1147.) In reaching this conclusion,

we agreed with the People that ―the confrontation clause does not establish an

absolute rule that a witness‘s true identity always must be disclosed.‖ (Id. at p.

1146.) However, we continued, ―in every case in which the testimony of a witness

has been found crucial to the prosecution’s case the courts have determined that it

is improper at trial to withhold information (for example, the name or address of

the witness) essential to the defendant's ability to conduct an effective cross-

examination. [Citations.]‖ (Ibid.) ―Thus, when nondisclosure of the identity of a

crucial witness will preclude effective investigation and cross-examination of that

witness, the confrontation clause does not permit the prosecution to rely upon the

testimony of that witness at trial while refusing to disclose his or her

identity.‖ (Id. at p. 1151, italics added.)

As defendant concedes, the protective order here at issue did not suffer

from the same constitutional infirmity that afflicted the order in Alvarado; it did

not authorize permanent nondisclosure of the identity of any witness, crucial or

otherwise. Indeed, the record reflects that all but one of the protected witnesses

who actually testified at trial identified themselves during their testimony.6 Nor

does defendant challenge the adequacy of the prosecution‘s showing that the

witnesses would have been in significant danger had their identities been

disclosed. Indeed, the evidence the prosecution presented in this regard was

similar in many respects to the evidence we found adequate in Alvarado to justify

6 As far as the record shows, unlike the other testifying witnesses, Witness

No. 1 was never asked for identifying information.

21

a pretrial nondisclosure order. Specifically, the prosecution presented evidence

that the Mexican Mafia ordered at least one of the murders, posed an extreme

danger to the People‘s witnesses, had an excellent intelligence network, and

demanded documentation identifying an individual as a government witness

before approving a contract to kill a witness. Thus, as Alvarado establishes, the

record was sufficient to justify a pretrial nondisclosure order.

Nevertheless, defendant asserts, the protective order was constitutionally

invalid insofar as it allowed the prosecution to withhold the witnesses‘ identities

―until the moment [they] took the witness stand,‖ ―immediately prior to their

testimony.‖ This ―belated disclosure,‖ defendant argues, ―failed to provide [him]

with an adequate opportunity to investigate and prepare his defense.‖ As to the

―stranger‖ witnesses — those who had no connection to the defendants and saw

relevant events at the victims‘ home from nearby locations — it prevented him

from determining whether they harbored bias or prejudice against him or other

defendants, whether they had reason to testify falsely, or where they were when

they made their observations. As to the other protected witnesses — who

defendant asserts were ― ‗crucial witnesses‘ ‖ within the meaning of Alvarado —

it prevented defendant from adequately investigating grounds for impeachment,

i.e., their ― ‗reputation[s] for truthfulness or dishonesty, previous history and

accuracy of providing information to law enforcement, and other motives to

fabricate, such as revenge or reduction of their own charges.‘ ‖ More generally,

defendant asserts, nondisclosure prevented the defense from investigating a viable

defense theory — that the murders were carried out not by the Sangra gang, of

which defendant was a member, but by the El Monte Flores street gang — and

fundamentally impaired his relationship with counsel by ―prohibit[ing]‖ his

attorney ―from discussing any matter . . . that might disclose the identity of a

[protected] witnesses.‖ In these respects, defendant asserts, the court‘s order

22

prevented him from having ―an adequate opportunity to investigate and prepare

his defense‖ and ―effectively denied [him] the ability to present potentially

mitigating and exonerating evidence.‖

Defendant‘s arguments are unpersuasive. As a factual matter, the record

does not support defendant‘s assertion that the witnesses‘ identities were unknown

to the defense until the moment the witnesses took the stand. As detailed above,

on Wednesday, October 16, 1996, five days before trial began, the prosecution

indicated its intent to identify the witnesses ―within a couple of days of their

testimony‖ and stated that it was willing to disclose to defense counsel the names

of ―some of‖ the witnesses on Friday, October 18. Before opening statements

began on Monday, October 21, the prosecution indicated that it was ―willing to

give‖ defense counsel the names of all unidentified witnesses, so long as defense

counsel did not repeat the information to anyone ―unless [counsel] can articulate a

reason why they need to.‖ The next morning, before opening statements resumed,

the prosecution indicated that it had already given Palma‘s counsel ―the names of

the two people who may testify today,‖ that it had not had ―an opportunity to talk

to‖ defendant‘s counsel, and that ―at the recess at 11:00 we are going to go over

the other list of names.‖ On Friday, October 25, the prosecution indicated that it

had ―told‖ defense counsel ―the true names of the witnesses,‖ that it had been

telling defense counsel ―the day before‖ which witnesses would be testifying the

following day, and that it was willing to tell defense counsel the order of witnesses

―for the rest of the trial.‖ As defendant concedes, this record supports a finding

that the prosecution disclosed the identities of all witnesses by October 22, the day

23

the parties completed their opening statements and witnesses began to testify.7

Thus, the record suggests that, except as to the two ―stranger‖ witnesses who

testified on October 22 — ―Witnesses Nos. 8 and 9‖ — defendant knew the

protected witnesses‘ identities a day or more before they testified.8 As to

7 Likewise, the People assert that, ―although the record is not completely

clear, it appears that witness names were all disclosed by the time of opening

statements.‖

8 In arguing that disclosure did not actually occur until the moment the

witnesses took the stand, defendant relies in part on Judge Trammell‘s statement

on October 16, five days before trial began, that he would ―withhold‖ the

witnesses‘ names with the ―understanding‖ that, ―when one of these witnesses

takes the stand,‖ he would grant a continuance before proceeding with cross-

examination if defense counsel ―can give a good cause reason for delaying cross

examination because [they] didn‘t know who the person was.‖ However, as

indicated above, after the court‘s statement, the prosecution indicated its intent to

identify the witnesses ―within a couple of days of their testimony‖ and stated that

it had no objection to giving defense counsel the names of ―some of‖ the witnesses

―on Friday.‖ The court then stated that it wanted to defer its decision on the

prosecution‘s suggestion and concluded the day‘s proceedings by directing the

prosecution to ―keep counsel apprised of who the witnesses next up will be for the

next day so that they can use the evening to prepare for cross examination.‖

Defendant also relies on the following October 25 statement of Palma‘s counsel,

after the court, at the prosecution‘s request, directed defense counsel not to tell

their clients the order in which witnesses would be testifying: ―[S]o the record‘s

clear as [to] our position on this. I think what our position has been . . . in this it is

not that we just don‘t know who the witness is going to be the day before, we

don‘t know who the witnesses are at all.‖ However, in context and in light of the

record as a whole, this comment is best understood not as a statement that Palma‘s

counsel still did not know the witnesses‘ identities, but as a reiteration — to clarify

the record — of counsel‘s prior objection to earlier court rulings that authorized

nondisclosure. Notably, defendant‘s counsel did not join in the comments of

Palma‘s counsel or challenge the prosecution‘s representation earlier in the

hearing that it had ―told‖ defense counsel ―the true names of the witnesses.‖

Instead, defendant‘s counsel responded to the prosecution‘s representation by

expressing gratitude that the prosecution had ―been telling‖ defense counsel the

order of witnesses ―the night before [so] at least we can open the book at least and

prepare.‖

24

Witnesses Nos. 8 and 9, the record indicates that the prosecution disclosed their

identities several hours before they took the stand. As to the witnesses defendant

asserts were ―critical‖ — Witnesses Nos. 13, 14, 15 and 16 — the record indicates

that defendant‘s counsel knew the witnesses‘ identities at least two days, and as

much as two weeks, before he had to begin cross-examination.9

As a legal matter, governing precedent does not support defendant‘s

constitutional claim. As the high court has explained, ―[t]here is no general

constitutional right to discovery in a criminal case‖ and ― ‗[t]he Due Process

Clause has little to say regarding the amount of discovery which the parties must

be afforded. . . .‘ [Citation.]‖ (Weatherford v. Bursey (1977) 429 U.S. 545, 559.)

Applying these principles, the Weatherford court found no constitutional violation

where the prosecution surprised the defendant at trial by calling to the stand a

previously unidentified witness. (Id. at pp. 559-561.) The court rejected the

argument that the lack of advanced disclosure deprived the defendant ―of the

opportunity to investigate [the witness] in preparation for possible impeachment

on cross-examination,‖ explaining: ―[T]here was no objection at trial to [the

witness‘s] testimony, no request for a continuance, and even now no indication of

substantial prejudice from this occurrence.‖ (Id. at p. 561; see also United States

9 On October 31, before Witness No. 16‘s testimony — which defendant

asserts was ―the cornerstone of the prosecution‘s case‖ — defendant‘s counsel told

the court he had interviewed the witness the previous July, ―obviously‖ knew the

witness‘s name, and ―had been referring to [the witness] by name for the last two

weeks.‖ Indeed, the record suggests that defendant‘s counsel may have known the

identities of the protected witnesses well in advance of trial. In March 1996,

Logan‘s counsel told the court that he ―ha[d] been able to ascertain who‖ the

witnesses were from his own investigation and from the information he had

received, including the redacted grand jury transcripts and the police reports.

25

v. Edwards (7th Cir. 1995) 47 F.3d 841, 842-843 [Constitution does not require

disclosure of protected witness‘s identity before the morning of his testimony].)

For several reasons, we similarly find no constitutional violation in this

case. First, at the same time it authorized pretrial nondisclosure of the witnesses‘

identities, the court afforded defendant several methods of investigating those

witnesses, including potential sources of impeachment evidence. As detailed

above, in early November 1995, almost a year before trial began, the court

directed the prosecution to make the witnesses available for interview by defense

counsel, authorized the prosecution to provide defense counsel with information

about the witnesses‘ prior convictions, and authorized defense counsel to obtain

police reports regarding the incident. In March 1996, still more than six months

before trial, the judge initially assigned for trial ordered the prosecution to make

the witnesses available for a recorded interview by defense counsel and to give

defense counsel a record of the witnesses‘ prior convictions. Second, by October

16, 1996, five days before trial began, defendant‘s counsel had in fact received

information regarding the witnesses‘ prior convictions and had interviewed ―the

vast majority of the witnesses.‖ Third, when the court issued a protective order in

November 1995, it specifically invited defendant‘s counsel to seek amendment of

the order should he determine that further disclosure was necessary.10 Similarly,

in March 1996, when Judge Czuleger revisited the issue de novo, he emphasized

that the protective order was ―a work in progress as this case progresses‖ and that

10 The court stated: ―[A]fter you have had a chance or an opportunity to

conduct the investigation a little bit further, . . . if it is to be the request of the

defense for lineups, anything of that nature, then at all times you are invited to

return to court should you find, feel that there is a need or a necessity to get some

further amendment to the order.‖ ―[A]s you go along if you feel there needs to be

an expansion of the order, then you are invited to return to court.‖

26

―one of [his] largest concerns [was] that these defendants be adequately

represented and be able to adequately defend themselves.‖ Fourth, the court stated

several times that it would grant defense counsel continuances during trial upon a

showing that the delayed disclosure of the witnesses‘ identities had hampered

counsel‘s ability to prepare for cross-examination.11 Fifth, despite the court‘s

offers, defendant‘s counsel made no attempt to demonstrate that further disclosure

was necessary to his trial preparation and, during trial, never requested a

continuance before beginning cross-examination.12

11 In September 1996, the court stated to defense counsel: ―You have my

assurances . . . if you‘re able to show that you need a mid trial continuance for the

purposes of doing some — not fishing but doing some material investigation,

you‘ll get it. You have my word on that.‖ In October 1996, it told defense

counsel: ―[W]hen one of these witnesses takes the stand . . . you will have the

right before you begin cross examination if you can give a good cause reason for

delaying cross examination because you didn‘t know who the person was, I will

give it to you. In other words, I am not about to let you or make you start to cross

examine until you are fully prepared.‖

12 During trial, the court raised the possibility of a continuance specifically

regarding Witness No. 16. After the prosecution completed its direct examination

of the witness on Thursday, October 31, 1996, defendant‘s counsel moved for a

mistrial, explaining in part that, although he had interviewed the witness the

previous July and had known the witness‘s identity for at least two weeks, he did

not learn information about the witness‘s current employment until the witness

testified at trial. Counsel stated that, had he known this information, he could

have investigated possible impeachment evidence, including ―what type of

employee [the witness] was and whether or not he is known to lie and whether or

not he has covered himself by lying about other people at the time.‖ In denying

the motion, the court responded: ―[I]f you need time to look into his impeachment

insofar as his general character, I will give you a reasonable time. We do have

three days [before trial resumes] and that‘s something certainly on Monday if you

come in and ask for more time, I am going to probably want to know what it is

you need to do and why you didn‘t do it over the next three days, but I mean

there‘s no question he‘s material, and if you‘re able to show me you need

additional time to pursue that particular issue, you may have my word you will get

(footnote continued on next page)

27

The sixth relevant factor is that the court‘s protective orders did not in fact

―significantly impair‖ defendant‘s ―ability to investigate or effectively cross-

examine‖ the witnesses he maintains were ―crucial‖ to the case against him:

Witnesses Nos. 13-16. (Alvarado, supra, 23 Cal.4th at p. 1147.) As defendant

asserts, the most crucial witness was Witness No. 16, the Sangra gang member

who testified that defendant and Palma said defendant shot one man in the head

and that defendant said he also shot another man who was running away.

Defendant‘s counsel interviewed Witness No. 16 in July 1996, three months

before trial began, and by his own admission, knew the witness‘s identity at least

two weeks before the witness began testifying. At trial, Palma‘s counsel cross-

examined the witness first, and he extensively exposed to the jury the witness‘s

criminal background and his incentives to help the prosecution. Defendant‘s

counsel followed with his own lengthy cross-examination, which included

(footnote continued from previous page)

it.‖ When trial resumed the following Monday, defendant‘s counsel said nothing

more about the issue.

By contrast, Palma‘s counsel, after explaining that he had served subpoenas

duces tecum for employment records the previous Friday and that the records

would not be available until the next day, asked the court to delay for one day the

continued examination of Witness No. 16. The court asked Palma‘s counsel to try

to ―work it out‖ with the prosecution if possible, while reiterating: ―I think I said

at the beginning of the trial because you have not been given names, primarily

numbers, if that necessitates a day or so or some lost time I have no problem with

it.‖ ―If you need time, I promised you at the beginning you‘d get it . . . .‖ Shortly

thereafter, the direct examination of Witness No. 16 resumed. When the court

invited Palma‘s counsel to begin cross-examination, Palma‘s counsel requested ―a

moment with‖ the prosecution and, after receiving it, began cross-examination.

After Palma‘s counsel finished, defendant‘s counsel cross-examined the witness

without in any way indicating that he needed more time to prepare.

28

questions about his July interview with the witness and the witness‘s grade-school

association with Creepy.13

During closing argument, defendant‘s counsel took full advantage of this

cross-examination, hammering hard at the witness‘s credibility. Counsel argued

that the prosecution‘s case against defendant was ―centered around‖ and depended

―on the testimony of one man‖ — Witness No. 16 —who ―smoked PCP‖; who

lied to the grand jury and the police regarding his own involvement in the

murders, ―even after being granted immunity‖; who ―had a purpose‖ and ―his own

agenda‖; who ―told you a story that would . . . separate him . . . from being an

accomplice‖; and who ―took every step in order not to be involved even though he

drove the leader of the pack to the [murder] site.‖ Defendant‘s counsel also

emphasized what he believed were inconsistencies in the witness‘s testimony,

noting that, although he testified he had been to Valdez‘s house, he could not find

it ―when he drove the [sheriff‘s] officers around‖ after the murders.

Palma‘s counsel likewise attacked Witness No. 16‘s credibility during

closing argument, stressing that the witness was a gang member and ―a PCP

13 During the cross-examination by Palma‘s counsel, the witness testified that

the prosecution had granted him immunity in connection with the murders and

would not prosecute him if he told the truth; that he had been held in jail for

refusing to testify despite the grant of immunity and a judge told him he would

stay in jail until he testified; that a case involving a charge of driving under the

influence would be ―washed out‖ and a pending drug charge would not be

prosecuted if he testified; that he would be moved out of the area; that he had lied

when he first spoke with police about the murders and told them he was not

involved; and that he had refused to tell the police the truth ―until after [he was]

granted immunity and [he] had cut [a] deal.‖ During his ensuing cross-

examination, defendant‘s counsel extensively probed inconsistencies in the

witness‘s trial testimony and his prior statements to police and during the July

interview with defendant‘s counsel. Defendant‘s counsel also established that the

witness was a phencyclidine (PCP) user.

29

abuser‖; that ―he was heavily using PCP at the time‖ of the murders; that he lied

the first time he spoke with police about the crimes, saying he did not know

anything about them and ―lie[d] under oath‖ to the grand jury; that he initially

refused to testify before the grand jury even after being ―granted immunity‖; that

during the time he was in jail for refusing to testify before the grand jury, he was

―getting his story together, his version of the truth‖; that, in exchange for his trial

testimony, he got ―out of jail,‖ received ―complete immunity . . . from prosecution

for five murders,‖ got his ―dope‖ and ―drunk driving cases taken care of,‖ and was

―relocated out of the area‖ along with ―his whole family.‖ Summing up, Palma‘s

counsel stated: ―[Witness No. 16‘s] credibility is unbelievable and . . . you should

not rely upon him. When you talk about him and when you discuss his testimony,

you think about his background. . . . You talk about his lies, you talk about his

motives for testifying in this case and then see if he‘s believable.‖

As to Witnesses Nos. 14 and 15, we first question defendant‘s assertion that

these witnesses were ―crucial‖ to the case against him. Neither witness provided

any testimony about defendant. The latter testified about his encounter at the

Maxson Road apartment some nine hours before the murders occurred (2:30 p.m.)

with Maciel and two younger men, one with an El Monte Flores gang tattoo on his

arm. He also testified that Tito had robbed drug dealers associated with the

Border Brothers, a group that sold drugs in the El Monte area and would kill those

who stole their drugs. During closing argument, defendant‘s counsel relied on

this witness to argue that defendant was not involved in the murders and that

members of either the El Monte Flores gang or the Border Brothers committed the

murders. Witness No. 14, a member of the El Monte Flores gang, testified that on

the evening of the murders, Palma said he ―was going to take care of some

business‖ for Maciel, a former El Monte Flores gang member. This testimony

supported defendant‘s alternate theory that the El Monte Flores gang committed

30

the murders. Thus, these witnesses may have been more crucial to defendant‘s

defense than to the prosecution‘s case against him.

Consistent with his defense, defense counsel made little effort during cross-

examination to impeach Witnesses Nos. 14 and 15. Instead, he focused his efforts

on developing evidence that members of the Border Brothers or the El Monte

Flores gang, rather than Sangra gang members, committed the murders. Palma‘s

counsel, however, thoroughly cross-examined both witnesses at trial, exposing

their criminal backgrounds and their extensive drug use.14 During closing

argument, Palma‘s counsel later attacked Witness No. 14‘s credibility, arguing

that he was ―an admitted liar‖ and ―a dope user‖ who ―admitted to using dope on

at least two occasions on‖ the day of the murders; that he was a ―convicted

kidnapper, a convicted robber, and a convicted dope seller‖ who ―lied to the police

when he was being interviewed the first time‖; and that, as a member of the El

Monte Flores gang, which was a Sangra rival, he had ―an additional motive to

draw a member of Sangra gang into this conspiracy.‖ Palma‘s counsel also

attacked Witness No. 15‘s credibility, arguing: ―I am not sure there is anything

14 During cross-examination, Witness No. 14 testified that he was presently in

custody for kidnapping and robbery; that he had a 1993 felony conviction for drug

sales; that Dido and Tito had sold drugs for him at one time; that he used heroin

twice on the day of the murders; and that he told Hooker he was involved in

selling drugs with a Mexican Mafia member. Witness No. 15 testified on cross-

examination that the night before the murders, he stole several items; that on the

day of the murders, three separate times he sold some of the stolen items to buy

heroin; that he used heroin four different times on the day of the murders; that he

had spent a substantial part of his adult life in prison; that he currently was in

prison for commercial burglary; that he went to prison in 1972 for ―a couple of‖

burglaries, in 1986 for robbery while using a buck knife, and in 1993 for petty

theft; and that he had been ―in and out of the county system‖ from 1980 to 1986.

Palma‘s counsel also explored inconsistencies between Witness No. 15‘s trial

testimony and his prior statements.

31

that you can believe that comes out of that guy‘s mouth. Here is a guy committing

crimes, stealing people‘s property, and going down and selling it for drugs and

seems kind of proud of it the way he testified.‖ Thus, even were Witnesses Nos.

14 and 15 crucial to the case against defendant, the record shows that the court‘s

protective orders did not significantly impair the defense‘s ability to prepare for

and cross-examine these witnesses.15

Also unpersuasive is defendant‘s assertion that Witness No. 13 was crucial

to the prosecution‘s case against him. Witness No. 13 testified that sometime

before 8:30 or 9 p.m. on April 22, 1995, defendant and Torres arrived together at

Torres‘s house, went into Torres‘s room and began making telephone calls, and

were later joined by other Sangra gang members, including Logan. However,

Torres‘s mother, whose identity was not withheld from defendant, similarly

testified that, beginning about 6:00 p.m. on April 22, 1995, several of Torres‘s

friends, including defendant, arrived at Torres‘s house and went into Torres‘s

room. During closing argument, defendant‘s counsel stated, ―There‘s no doubt

that [Torres‘s mother] was credible.‖ He also stated that both Witness No. 13 and

Torres‘s mother were ―the most credible witnesses so far that have come along.‖

Given that Witness No. 13‘s testimony substantially duplicated that of Torres‘s

mother and that defendant‘s counsel conceded at trial that both witnesses were

credible, his claim that the delayed disclosure of Witness No. 13‘s identity

hampered his defense fails.

15 To the extent defendant now complains in his reply brief that the protective

order, by prohibiting counsel from disclosing the witnesses‘ identities to anyone,

precluded him from further inquiring into the witnesses‘ biases, their reputations

for veracity, and their abilities to perceive, recall and describe the events to which

they testified, defendant could have asked the trial court to amend its order to

permit such disclosure. He did not.

32

Regarding the ―stranger‖ witnesses, defense counsel conducted little or no

cross-examination. However, these witnesses testified only briefly about their

observations on the day of the murders, and none of them identified defendant,

Palma, or anyone else. In fact, three of them testified they could not identify

anyone they saw that day, and a fourth said he could not describe anyone he saw.

One of the former testified she was ―positive‖ none of the people she saw was in

court. Thus, defendant‘s professed inability to determine whether these witnesses

harbored any bias or prejudice against him or other defendants, whether they had

reason to testify falsely, or where they were when they made their observations,

did little, if anything, negatively to impact his case. On the contrary, although he

now complains about his inability to impeach these witnesses, during closing

argument at trial, he urged the jury to rely on Witnesses Nos. 8 and 9, stressing

their failure to identify him as one of the men who visited the victims‘ residence

the afternoon of April 22 and commenting that no reason existed to doubt their

credibility. Regarding the other ―stranger‖ witnesses, who testified that a Nissan

Maxima pulled up later that night, defendant‘s counsel actually bolstered their

testimony, commenting, ―obviously, that‘s what had to occur.‖16

16 Moreover, defendant errs in asserting that, without address information, he

had ―no way to determine where‖ the two witnesses who were the victims‘

neighbors were when they made their observations. Under the court‘s protective

order, defendant could have requested an interview with these witnesses and asked

them where they were when they made their observations. Judge Czuleger

expressly mentioned this option to defense counsel during the March 29 hearing

on the disclosure issue. To the extent this information would have disclosed their

identities, defendant could have sought permission from the court to obtain this

information, based on his asserted need to test their ability to observe. Similarly,

to the extent defendant now complains in his reply brief that the protective order,

by prohibiting counsel from disclosing the witnesses‘ identities to anyone,

precluded him from interviewing neighbors regarding the witnesses‘ reputation for

(footnote continued on next page)

33

Defendant‘s arguments as to why the trial court‘s efforts to protect his

ability to put on a defense were insufficient are unpersuasive. Defendant asserts

that the possibility of a continuance was ―patently inadequate‖ given that the

witnesses‘ identities were not disclosed until immediately before their testimony

and the court indicated it would consider delaying cross-examination only for ―10

or 15 or 20 minutes.‖ However, as explained above, defendant is incorrect in

asserting that the witnesses‘ identities were not disclosed until the moment they

took the stand. Moreover, as the People assert, the record indicates that the court

made its comment about delaying cross-examination for 10, 15, or 20 minutes in

the context of discussing its order precluding defense counsel from disclosing the

order of witnesses to their clients, not with respect to the disclosure of the

witnesses‘ identities to defense counsel. With regard to the disclosure of the

witnesses‘ identities, as explained above, in September 1996, the court gave

defense counsel its ―word‖ that it would grant ―a mid trial continuance‖ if counsel

showed they needed to investigate the witnesses after disclosure of their identities,

and on October 16, 1996, just five days before trial began, it again told defense

counsel: ―[W]hen one of these witnesses takes the stand . . . you will have the

right before you begin cross examination if you can give a good cause reason for

delaying cross examination because you didn‘t know who the person was, I will

give it to you. In other words, I am not about to let you or make you start to cross

examine until you are fully prepared.‖17 Given this record and defendant‘s failure

(footnote continued from previous page)

veracity, defendant could have asked the trial court to amend its order to permit

such disclosure.

17 Even as to disclosure of the order of witnesses, defendant‘s view of the

court‘s position is overly restrictive. At the same time it indicated its

(footnote continued on next page)

34

to test the court‘s sincerity by requesting a continuance, it is defendant‘s argument,

not the court‘s promise of a continuance, that is ―patently inadequate.‖ Having

declined to seek a continuance, defendant is in no position to argue he ―had too

little time to conduct an adequate investigation.‖

For several reasons, defendant also errs in arguing that, by ―prohibit[ing]‖

his counsel ―from discussing any matter with [him] that might disclose the identity

of a [protected] witnesses,‖ the court‘s order ―[i]nevitably . . . undermined‖ his

―confidence in his counsel,‖ thus ―fundamentally interfer[ing] with the attorney-

client relationship.‖ First, the court‘s order was not as restrictive as defendant

asserts. As explained above, the order permitted defendant‘s counsel to review

with defendant police reports, court transcripts, and grand jury transcripts,

redacted to protect identifying information. It also provided that, upon

discovering the identities of Witnesses Nos. 14, 15, and 16 — who were three of

the four witnesses defendant now asserts were ―crucial‖ — defendant‘s counsel

could disclose that information to defendant ―if such disclosure [was] necessary to

adequately represent‖ him. Even as to the remaining witnesses — the ―stranger‖

witnesses and Witness No. 13 — the order did not forever bar counsel, upon

discovering a witness‘s identity, from disclosing that information to defendant; it

simply required that counsel obtain a ―court order‖ authorizing disclosure. Thus,

the order only minimally inhibited communication between defendant and his

(footnote continued from previous page)

unwillingness to delay cross-examination ―a couple of days‖ based on the

defendants‘ lack of knowledge of the order of witnesses, it stated it would delay

cross-examination ―a reasonable amount of time‖ and explained: ―I suppose what

is reasonable would depend on the circumstances. You‘re not going to find me . . .

to be trying to rush this case along because . . . it‘s moving along quite quickly.‖

35

counsel. Second, to the extent the order prevented information sharing, it should

not have undermined defendant‘s confidence in counsel. Counsel could simply

have explained that the court‘s order precluded him from sharing certain

information with defendant. Though defendant might have been unhappy with the

order, he would have had no basis for losing confidence in counsel as a result of

the court-ordered nondisclosure.

Defendant next errs in asserting that pretrial nondisclosure prevented him

from developing and pursuing a viable defense theory — that the murders were

carried out not by Sangra gang members, but by members of the El Monte Flores

gang. The only way in which defendant asserts that pretrial nondisclosure

hampered development of this theory was by ―effectively prevent[ing]‖ him from

establishing that Witnesses Nos. 14 and 15 ―were trying to falsely implicate

members of the rival Sangra gang‖ and/or ―were trying to protect fellow members

of El Monte Flores (perhaps out of a sense of gang loyalty or fear of retribution).‖

However, Witness No. 15, who was or had been an El Monte Flores gang member,

actually supported this defense theory by testifying at trial that Maciel and the two

men who visited Moreno on the afternoon of April 22 were probably from El

Monte and that one of the men had ―E.M.F.‖ tattooed on his arm, indicating the El

Monte Flores gang. Nor in his trial testimony did he implicate defendant, Palma,

or anyone else in the Sangra gang. Notably, during closing argument, defendant‘s

counsel relied heavily on Witness No. 15, stressing that the witness had not

identified defendant or Palma, had not otherwise indicated that anyone from

Sangra was involved, and had noticed that one of the visitors that afternoon was

from the El Monte Flores gang.18 After recounting Witness No. 15‘s testimony,

18 During his closing argument, Palma‘s counsel also relied on Witness No.

15‘s testimony to argue that the El Monte Flores gang committed the murders.

36

defendant‘s counsel told the jury, ―so there‘s no indication yet during the build-up

of this conspiracy as alleged by the People that Sangra was even involved in this

matter.‖ Consistent with this argument, but contrary to defendant‘s current

assertion, during closing argument defendant‘s counsel explained to jurors why

they should find Witness No. 15 credible, stating: ―You just can‘t help but like a

gentleman . . . [who has] spent most of his time in prison who has lost a niece,

nephew, and a brother. He had no grudge. . . . He‘s been involved in the system

enough to know that you can‘t lie yourself out of the system anymore. You can‘t

lie when you were on the stand.‖ Witness No. 14 also supported defendant‘s

theory, by identifying Maciel as a member of the El Monte Flores gang and

testifying that, on the evening of April 22, Palma said he was going to ―take care

of some business‖ for Maciel. The witness did not identify Palma as a member of

the Sangra gang, and he testified that he was in no way identifying defendant.

Indeed, during closing argument, defendant‘s counsel relied on Witness No. 14,

stressing that the witness had not identified defendant and stating that the witness

was credible because he ―ha[d] nothing to beef about.‖ Thus, defendant fails to

show any way in which pretrial nondisclosure hampered development of his

theory that members of the El Monte Flores gang committed the murders.19

Finally, defendant errs in asserting that we must reverse because the trial

court, in March 1996, ordered that the addresses of the ―stranger‖ witnesses and of

Witness No. 13 be ―permanently‖ undisclosed. As already explained, that

information was ―inconsequential to the defendant‘s right to a fair trial under the

19 Again, had further disclosure been necessary to develop this defense,

defendant could simply have sought amendment of the protective order, in

accordance with the trial court‘s invitation. He did not.

37

facts presented. [Citations.]‖20 (Alvarado, supra, 23 Cal.4th at p. 1142.) For all

of these reasons, defendant‘s constitutional claim fails. (See People v. Lopez

(1963) 60 Cal.2d 223, 246-247 [protective order authorizing prosecution to

withhold identities of witnesses until 24 hours before they testified did not deprive

the defendant of a fair trial].)

3. Alleged Violation of Work Product Protection

Defendant asserts the trial court, by ―requir[ing]‖ his counsel to interview

the protected witnesses ―in the presence of the prosecutor‖ and authorizing any

party to memorialize the interviews, violated his counsel‘s work product privilege.

According to defendant, ―[t]he questions defense counsel . . . asked of prospective

prosecution witnesses necessarily revealed the very substance of the attorney‘s

strategies with respect to the witnesses, which information is protected under the

constitutionally mandated work product privilege of a criminal defense attorney.‖

At trial, defendant asserts, the prosecution ―used the fruits of‖ this work product

violation ―to bolster the testimony of [its] witnesses,‖ ―to deter impeachment by

the defense,‖ and ―to falsely insinuate that the defense had been afforded a fair and

independent opportunity to investigate the case.‖ Defendant insists that this use

by the prosecution of defense counsel‘s interviews prejudiced his case and

requires reversal.

For several reasons, defendant‘s argument fails. Procedurally, defendant

forfeited it by failing to raise it in the trial court. In his briefs, defendant cites

nothing in the record indicating that his counsel (or any codefendant‘s counsel)

20 Moreover, during the prosecution‘s direct examination at trial, Witnesses

Nos. 8 and 9, who were neighbors of the victims, gave their addresses on the date

of the murders. Referring to a diagram, the witnesses explained precisely where

they were when they made their observations and the locations of the people and

vehicles they observed.

38

objected that the prosecution‘s attendance at defense counsel‘s interviews violated

counsel‘s work product privilege, and our own search of the record reveals no

such objection. Nor did defendant‘s counsel object at trial when, during his

examination of some of the witnesses, the prosecution mentioned defense

counsel‘s interviews. Under the circumstances, defendant may not now assert a

violation of his counsel‘s work product privilege as a ground for reversal. (See

People v. Zamudio (2008) 43 Cal.4th 327, 354; People v. Combs (2004) 34 Cal.4th

821, 862.)

On the merits, defendant‘s argument fails for one simple reason: the trial

court did not, as defendant asserts, mandate the prosecution‘s attendance at the

interviews. Rather, as explained above, the trial court ruled that the prosecution

could attend a particular interview if the witness requested the prosecution’s

attendance. As defendant concedes, although a criminal defendant may ask

witnesses to give interviews, witnesses have no legal obligation to grant that

request; they may decline to speak with a defendant. (Reid v. Superior Court

(1997) 55 Cal.App.4th 1326, 1337, fn. 4; People v. Pitts (1990) 223 Cal.App.3d

606, 872; Walker v. Superior Court (1957) 155 Cal.App.2d 134, 139-140.) It

therefore follows that a witness, short of declining a request altogether, may instead

place conditions on the interview, such as insisting on the prosecution‘s attendance.

The trial court‘s order did no more than recognize this power. It was not, as

defendant erroneously asserts, ―tantamount to advice not to speak to the defense, or

at least to request the presence of the prosecutor or an investigator.‖ Thus, to the

extent the prosecution, at the witnesses‘ request, attended interviews conducted by

defense counsel, there was no violation of the work product privilege.21

21 The record does not contain the interviews in question or otherwise indicate

how many of the protected witnesses defendant‘s counsel interviewed.

39

Finally, even were defendant able to assert and establish a violation of

counsel‘s privilege, reversal would be unwarranted. As noted above, the only

prejudice defendant alleges is that the prosecution ―used the fruits of‖ this asserted

violation ―to bolster the testimony of‖ Witnesses Nos. 14 and 16, ―to deter‖ his

impeachment of these witnesses, and ―to falsely insinuate‖ that he had had ―a fair

and independent opportunity to investigate the case.‖ This was accomplished,

defendant argues, by eliciting testimony from the witnesses that defense counsel

had interviewed them before trial and that their trial testimony was consistent with

their statements during the earlier interviews with defense counsel. However, as

explained above, during closing argument, defendant‘s counsel relied on Witness

No. 14, stressing that he had not identified defendant and stating that the witness

was credible because he ―ha[d] nothing to beef about.‖ As also explained above,

at trial, defendant‘s counsel and counsel for Palma thoroughly attacked Witness

No. 16‘s credibility, stressing that he was a drug user and gang member, that he

had lied to police, and that he had several motives for testifying in the

prosecution‘s favor. Thus, the record shows that any work product privilege

violation was harmless and would not entitle defendant to reversal.22 (See People

v. Coddington (2000) 23 Cal.4th 529, 606; People v. Collie (1981) 30 Cal.3d 43,

60-61.)

4. Alleged Nonreciprocal Discovery

Defendant argues the trial court‘s protective order impermissibly provided

the prosecution with nonreciprocal discovery benefits. He first asserts that, by

22 Given this conclusion, we need not determine whether, as defendant

asserts, the prosecution‘s access to his counsel‘s interviews implicated the work

product privilege because counsel‘s questions to the witnesses ―necessarily

revealed the very substance of the [his] strategies.‖ (See Coito v. Superior Court

(2012) 54 Cal.4th 480.)

40

authorizing the prosecution to attend, record and transcribe his counsel‘s

interviews with the prosecution‘s witnesses (ante, at p. 14), the trial court

―effectively required‖ him to provide the prosecution with discovery to which it

would not ordinarily be entitled under the reciprocal discovery statutes, i.e.,

―statements [the defense] obtained from prosecution witnesses that it [might] use

to refute the prosecution‘s case during cross-examination.‖ Defendant then asserts

that, by granting this discovery to the prosecution ―but not providing [him] with a

reciprocal right, the trial court upset the ‗balance of forces between the accused

and [the] accuser,‘ in violation of [his] right to due process under the Fourteenth

Amendment.‖

For several reasons, defendant‘s argument fails. Initially, defendant‘s

argument again overlooks the fact that, under the trial court‘s order, the

prosecution could attend defendant‘s interview of a protected witness only if the

witness requested the prosecution‘s attendance. Because, as explained above, the

witnesses had a right, independent of the court‘s order, to refuse to talk with

defendant unless the prosecution was present, the trial court‘s order did not

―effectively require[]‖ defendant to disclose statements he obtained from the

prosecution‘s witnesses.

Moreover, even were defendant correct regarding the effect of the court‘s

order, reversal would not be required. As defendant asserts, the due process

clause, though having ―little to say about the amount of discovery‖ to which a

criminal defendant is entitled, ― ‗does speak to the balance of forces between the

accused and his accuser.‘ [Citation.]‖ (Izzazaga v. Superior Court (1991) 54

Cal.3d 356, 372-373.) However, as we have explained, because the concern of the

due process clause is ―the right of a defendant to a fair trial,‖ the focus of the

reciprocity inquiry under the due process clause is whether any lack of reciprocity

―interferes with the defendant‘s ability to secure a fair trial.‘ [Citation.]‖ (People

41

v. Hansel (1992) 1 Cal.4th 1211, 1221, quoting Wardius v. Oregon (1973) 412

U.S. 470, 474, fn. 6.) Thus, ―mere repetition of the word ‗reciprocity‘ is not

enough to show that [a defendant‘s] right to a fair hearing [has been] violated.‖

(Hansel, supra, at p. 1221.) The inquiry is not whether ―the procedures available

to the defendant . . . precisely mirror[ed] those available to the prosecution,‖ but

whether the defendant received ―a full and fair opportunity to present‖ a defense

and whether the rules at issue ―tilt[ed] the balance toward the state to any

significant degree.‖ (Id. at p. 1222.) To the extent, if any, that the order resulted

in a lack of reciprocity, it did not compromise defendant‘s ability to present his

defense or tilt the balance toward the state to any significant degree. As explained

above, the court allowed defendant to interview the protected witnesses. Nothing

prevented him from asking the witnesses during those interviews what they had

told the prosecution. Moreover, for reasons already set forth, the nondisclosure of

the witnesses‘ identities did not, as defendant asserts, ―preclude[]‖ him ―from

investigating critical avenues of investigation.‖ Finally, to the extent there was

any nonreciprocity, the prosecution made ―a strong showing of state interests‖ to

justify the trial court‘s order. (Wardius, supra, at p. 475.) Defendant‘s

nonreciprocity claim therefore fails.

5. Lack of Notice and Opportunity to Participate

Defendant next argues the trial court erred by conducting a series of ex

parte hearings pursuant to section 1054.7 regarding the nondisclosure of the

witnesses‘ identities. According to defendant, nothing in section 1054.7

authorized the court to proceed without providing him notice and an opportunity to

be heard. Moreover, defendant asserts, in so proceeding, the trial court violated

(1) his federal constitutional rights to counsel, to confront witnesses against him,

to due process, and to a reliable penalty determination, and (2) ―his rights under

42

the California Constitution and the California Penal Code.‖ According to

defendant, even if it was necessary to keep him and his counsel from discovering

the witnesses‘ identities, it was not necessary to deprive him of notice and to

exclude him from the hearings, because the hearings could have been conducted in

his presence and the witnesses could simply have been referred to by number

instead of name.

Initially, it appears defendant has forfeited this issue by failing to object

and obtain a ruling in the trial court. The first ex parte hearing took place before

Judge Bascue on September 29, 1995. Although the record reflects that Logan,

Palma, and Torres, and their counsel received advanced notice of this hearing,23

defendant did not. In fact, he could not have received notice because, as of the

hearing date, he was not yet in custody, had not been arraigned, and did not have

counsel.24 However, a few days later, on October 3, 1995, the court appointed

counsel for defendant and the prosecution informed defendant‘s counsel of Judge

Bascue‘s in camera hearing and the resulting redaction order. Defendant‘s

counsel‘s sole response was to request a copy of the redacted transcript; he did not

object to the ex parte nature of Judge Bascue‘s hearing or the lack of notice.

Indeed, as far as the record discloses, during the many subsequent hearings

at which Judge Bascue‘s redaction order was discussed, defendant‘s only mention

of any objection that Judge Bascue had proceeded ex parte occurred during a trial-

setting conference before Judge Dukes on January 30, 1996. During that

23 These defendants and their counsel were present in court on September 28,

1995, when the prosecution explained that the next day, Judge Bascue would be

deciding whether to redact the names of certain witnesses from the grand jury

transcripts.

24 Counsel was appointed on October 3, 1995. Defendant was arraigned on

October 26, 1995.

43

conference, the prosecution informed Judge Dukes of ―sealed motions‖ Judge

Bascue had recently heard and decided regarding redaction of witness names from

transcripts of the December 1995 grand jury proceedings involving Maciel and

Ortiz. Logan‘s counsel, after explaining that he had received ―another set of

redacted statements,‖ ―object[ed] to any proceedings that are done in front of

Judge Bascue as being ex parte motions.‖ Defendant‘s counsel joined this

objection. Judge Dukes declined to rule on the objection, explaining that Judge

Czuleger would be taking over the case and that counsel could make their

objections ―at that time.‖

When the parties first appeared before Judge Czuleger a week later,

defendant did not renew his objections to Judge Bascue‘s order or ask Judge

Czuleger to rule on its validity. Instead, after Judge Czuleger announced that the

prosecution would have ―to make . . . a new showing‖ on the issue, defendant‘s

counsel, in the course of requesting notice of and an opportunity to be present for

any new hearing, merely mentioned in passing that Judge Bascue had proceeded

ex parte. Nor did defendant or his counsel raise these objections to Judge

Bascue‘s order at any other time. Because defendant failed to pursue and obtain a

ruling on these objections, he may not raise them on appeal.25 (See People v.

25 Another pretrial ex parte hearing may have taken place before Judge

Bascue in October 1995. In several discovery-related filings, the prosecution

stated that, on October 19, 1995, it had ―moved in camera‖ to supplement Judge

Bascue‘s September 29 order. The record contains an order dated October 19,

1995, regarding nondisclosure of the witnesses‘ identities, but the order does not

mention the holding of a hearing. The terms of the order are consistent with the

ruling Judge Bascue announced orally on September 29. The record does not

otherwise contain any transcript, filing, or minute order directly related to a

hearing on October 19. Moreover, accompanying one of the prosecution‘s

discovery-related filings was a declaration from the prosecutor stating that, on

October 19, 1995, Judge Bascue issued ―supplemental orders‖ regarding redaction.

(footnote continued on next page)

44

Ramirez (2006) 39 Cal.4th 398, 450 [defendant forfeited issue by failing, despite

court‘s invitation to resolve it at a later hearing, to press for a ruling]; People v.

Danielson (1992) 3 Cal.4th 691, 729 [defendant forfeited issue by failing to renew

or request a ruling on his earlier objection].)

Another ex parte hearing took place on November 7, 1995, before Judge

Dukes. Defendant received advanced notice of this hearing in several ways. First,

on November 1, the prosecution filed and served on defense counsel a notice that,

on November 7, it would ask the court to hold an ―in camera hearing‖ to determine

whether to extend Judge Bascue‘s redaction orders. Second, at the scheduled

November 7 hearing, with defense counsel present, Judge Dukes began by noting

the prosecution‘s request and the prosecution responded that it was prepared to

proceed with the in camera hearing that day. Judge Dukes then invited comment

on whether section 1054.7 allowed an in camera hearing. The only response of

defendant‘s counsel was to request that the prosecution give the court a list of its

likely witnesses and that the court not impose discovery restrictions that prevented

the defense from preparing its case. Neither defendant‘s counsel nor any other

defense counsel objected that the hearing should not be held ex parte or that they

received insufficient notice of the hearing.

After hearing from defense counsel, Judge Dukes announced that court was

―in recess‖ and held a relatively brief in camera hearing without defense counsel.

Judge Dukes then reconvened proceedings in open court with defendants and their

(footnote continued from previous page)

The declaration did not indicate that there was an in camera or ex parte hearing on

that date. In any event, the forfeiture analysis that applies to Judge Bascue‘s

September 29 order applies equally to any order resulting from a hearing on

October 19.

45

counsel present. He began by announcing that, based on an ―in camera‖ hearing

he had ―conducted . . . pursuant to [section] 1054.7,‖ he was ordering continued

redaction of the witnesses‘ identities. He then had a series of exchanges with

defense counsel regarding the terms of his order and their objections to it. None of

the objections related to defense counsel‘s exclusion from the in camera hearing or

a lack of notice.26 After responding to the objections, Judge Dukes invited

defense counsel to invoke ―the writ process‖ should they disagree with his order.

No writ petition was ever filed. Having received advanced notice of the ex parte

hearing, and having failed to object either before or after the hearing, defendant

may not now claim that Judge Dukes prejudicially erred in holding an ex parte

hearing. (People v. Carasi (2008) 44 Cal.4th 1263, 1316 (Carasi); People v.

Jennings (1991) 53 Cal.3d 334, 383.)

Another ex parte hearing occurred on March 18, 1996, before Judge

Czuleger. Again, defendant had ample advanced notice of this hearing. On

February 7, Judge Czuleger announced in open court, with defendant‘s counsel

present, that he would require the prosecution to make a new showing as to the

need for nondisclosure. Defendant‘s counsel responded: ―[I]f [the prosecution]

has a new hearing, de novo, can defense counsel be notified, and then all be

present and the court makes a decision. At least defense counsel should be

present? [¶] The last time we went before the grand jury, as well as before Judge

26 Logan‘s counsel first stated that he ―disagree[d]‖ with the court‘s ruling,

and asserted that defense counsel were ―entitled to have names and addresses.‖

Palma‘s counsel then objected that the order was ―overly restrictive,‖

―unnecesar[ily] burdensome,‖ and ―interfere[d] with the [defense‘s] ability to

conduct its investigations.‖ Defendant‘s counsel then stated that he ―join[ed] in‖

these objections and added that ―interviewing witnesses from a conventional box

where you open the curtain‖ was ―onerous.‖ Torres‘s counsel then objected that

the order interfered with Torres‘s right to confront and cross-examine witnesses.

46

Bascue, these are all done in camera. These are all done ex parte. And I think

now that we have all seen the transcript, I think we have a right to at least be here

and the court make a decision why we should not be here. If our clients need to be

excluded, that‘s fine.‖ Judge Czuleger replied: ―What I was going to do is set it

down for pretrial conference in a few weeks from now and at that time pretrial

conference, set it for the in camera hearing, and hopefully I will have a better idea

where everything is. My suggestion is the first week of March.‖ After hearing

from counsel regarding proposed dates, Judge Czuleger scheduled a pretrial

conference for March 6.

On March 6, 1996, Judge Czuleger began the pretrial conference by talking

about possible hearing dates for a discovery motion that Logan had filed and for a

motion members of the media had filed to inspect grand jury records. After Judge

Czuleger indicated that March 22 was an option, the prosecution stated: ―[W]hat

we are discussing for motions at that point is between now and that date we would

have the in camera hearing. . . . There are two other in camera proceedings I want

you to review and my understanding is that on that date what we would basically

be ruling on is your decision regarding the redaction and so forth.‖ Following a

discussion with the prosecution, Judge Czuleger scheduled an in camera hearing

for March 18 and a follow-up hearing with all counsel for March 22. At the end of

the pretrial hearing, Ortiz‘s counsel stated: ―I take it you will not be asking us to

appear on the 18th for the in camera?‖ The court replied: ―No. . . . It will be in

camera.‖ Defendant‘s counsel did not object when the court scheduled the in

camera hearing and announced that defense counsel could not attend.

As scheduled, Judge Czuleger held the in camera hearing on March 18. On

March 29, he then took up the matter before the prosecution and all defense

47

counsel.27 He began by explaining that he had held ―an in camera hearing‖ on

March 18 and that, based on the testimony he had heard during that hearing, he

intended to order nondisclosure of the witnesses‘ identities. He later explained

that, in making his ruling, he had not considered anything that had happened

during the in camera hearings before Judge Bascue and Judge Dukes. Finally, he

offered defense counsel an opportunity to respond. Although raising various

objections, neither defendant‘s counsel nor any other defense counsel objected that

they had received insufficient notice or that Judge Czuleger had erred in

proceeding ex parte.28

On this record, it appears that defendant forfeited his right to complain on

appeal that Judge Czuleger erred in proceeding ex parte or that he received

inadequate notice. Although defendant‘s counsel at one point asked for notice and

an opportunity to attend the hearing, he did not renew his request or lodge an

objection when the court, without addressing the issue and in counsel‘s presence,

first scheduled an ex parte hearing and later announced it had held an ex parte

hearing, gave its ruling, and invited defense counsel to comment. Moreover, at no

point did defendant‘s counsel identify any basis for objecting to ex parte

27 Judge Czuleger had earlier rescheduled the March 22 hearing for March 29.

28 Logan‘s counsel complained that the order would prevent him from

discussing discovered information with his client. Maciel‘s counsel complained

that the order would prevent him from asking the ―stranger‖ witnesses where they

were when they made their alleged observations and that certain pages of the

grand jury transcript had been removed entirely. Ortiz‘s counsel objected to the

provision in the order that allowed the prosecution to be present during witness

interviews by defense counsel. Palma‘s counsel objected ―to any limitation on

discovery‖ and complained that the order interfered with the attorney-client

relationship insofar as it limited counsel‘s ability to discuss the case with his

client. Defendant‘s counsel joined in this objection, but otherwise said nothing

about Judge Czuleger‘s proposed order.

48

proceedings. Given these circumstances, it is doubtful that defendant should be

allowed to complain about an alleged lack of notice and an opportunity to be

heard.

In any event, even had defendant preserved the issue for appeal, reversal

would be unwarranted. As defendant asserts, we have held that ex parte

proceedings generally are ―disfavored‖ because they typically result in ― ‗a

shortage of factual and legal contentions. Not only are facts and law from the

defendant lacking, but the moving party‘s own presentation is often abbreviated

because no challenge from the defendant is anticipated at this point in the

proceeding. The deficiency is frequently crucial, as reasonably adequate factual

and legal contentions from diverse perspectives can be essential to the court‘s

initial decision . . . .‘ [Citation.]‖ (People v. Ayala (2000) 24 Cal.4th 243, 262

(Ayala).) Although ex parte proceedings are permissible if ―compelling reasons

justify them‖ (id. at p. 263), defendant may be correct that, at a minimum, the trial

court could have addressed the prosecution‘s concern for the witnesses‘ safety by

identifying the witnesses by number instead of by name – as they were identified

in the redacted grand jury transcripts – and allowing defense counsel to attend.

However, contrary to defendant‘s assertion, even where a court errs in

proceeding ex parte, the error is not reversible per se. For example, in Ayala,

where the defendant asserted that the prosecution had impermissibly excused

prospective jurors on the basis of race or ethnicity, we held that, although the trial

court had erred in allowing the prosecution to state its reasons for excusing the

jurors ex parte and outside the defendant‘s presence, the error was harmless under

the standards for judging both state law errors (reasonable likelihood of a more

favorable outcome) and errors under the federal Constitution (harmless beyond a

reasonable doubt). (Ayala, supra, 24 Cal.4th at pp. 259, 264.) Such error, we

explained, ―whether or not of federal constitutional dimension,‖ ―is not structural;

49

it is an error in the conduct of the trial that requires us to consider the record. In

other words, the error does not fall within the category of those that the law

recognizes as reversible per se, i.e., ‗affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself,‘ ‗ ―transcend[ing]

the criminal process‖ ‘ and ‗defy[ing] analysis by ―harmless-error‖ standards.‘

[Citation.]‖ (Id. at p. 266 fn. 3.) After reviewing the record of the ex parte

proceedings, we concluded in Ayala that the prosecution had not excused the

jurors for constitutionally impermissible reasons. (Id. at p. 266.) In reaching this

conclusion, we rejected the defendant‘s argument that the error was prejudicial

because ―his lack of opportunity to rebut the prosecution‘s justifications for the

challenges resulted in an incomplete record.‖ (Id. at p. 267.) We reasoned that,

although a defendant‘s participation in such a hearing might ―in the abstract‖ make

a difference in the ultimate ruling, the record in the case showed that ―defense

counsel could not have argued anything substantial that would have changed the

court‘s rulings. Accordingly, the error was harmless.‖ (Id. at p. 268.)

Here, too, the record shows that any error in proceeding ex parte was

harmless, whether we apply the test for state law error or for error under the

federal Constitution. At the first pretrial ex parte hearing on September 29, 1995,

before Judge Bascue, a homicide investigator from the Los Angeles County

Sheriff‘s Department testified, among other things, that: (1) the investigation had

shown that Sangra gang members had committed one or more of the murders at

the Mexican Mafia‘s behest; (2) both the Sangra gang and the Mexican Mafia

have a code against testifying and, to enforce that code, have been willing to kill

or harm people who might cooperate with police; (3) both defendant and one of

the Mexican Mafia members who ordered the hit were at large; (4) Sangra gang

members had told the investigator they would kill anyone who testified in the

case; (5) before acting against a witness, gang members look for validation, i.e.,

50

official paperwork, such as a police report or transcript, that documents a person‘s

name with a statement the person has made to authorities or in court; and (6) were

the identities of the witnesses‘ in question and their grand jury testimony to

become known, the witnesses‘ lives would be in danger because Sangra gang

members would try to prevent them from testifying.

At the ex parte hearing before Judge Dukes on November 7, 1995, two law

enforcement officers from the Los Angeles County Sheriff‘s Department gave

similar testimony. One, a detective with the homicide division who had

investigated the murder scene, testified that: (1) the Mexican Mafia had used the

Sangra gang to carry out one or more of the killings; (2) an involved member of

the Mexican Mafia was still at large; (3) Witness No. 13 had come forward with

information and said she was fearful for the safety of herself and her family; (4)

during a search of Ortiz‘s house conducted while Ortiz was only an uncharged

suspect and still at large, police had found a transcript of testimony that a

protected witness had given during a preliminary hearing in an unrelated murder

case against three Sangra gang members and a letter from one of the defendants in

that case referencing the fact that the witness was testifying against the Sangra

gang members; (5) police had information that witnesses in other cases against

either Sangra or Mexican Mafia members had been killed, one about a week

before he was to return to court and another shortly after being identified through

court records; and (6) almost everyone the detective had spoken with regarding

defendant‘s case had indicated they were fearful for their own safety and for the

safety of their families as a result of talking to police. The other witness, who was

a member of a task force investigating the Mexican Mafia, testified that: (1) based

on debriefing of several Mexican Mafia associates, authorities had stopped 40

contract murders ordered by the Mexican Mafia, many for people referred to as

snitches or informants; (2) an involved member of the Mexican Mafia was still at

51

large; (3) if the Mexican Mafia had ordered one of the killings, any witness

associated with the case was in imminent danger of being hit by the Mexican

Mafia to prevent their testimony; (4) if bystander witnesses names became known

to the general gang community, their lives ―wouldn‘t be worth a nickel‖ and,

―without question,‖ they would be in danger; and (5) redaction of a witness‘s

name will ―enhance[]‖ the witness‘s ―ability to stay alive‖ even if it can be

determined from the testimony who the witness is, because redaction will hamper

the Mexican Mafia in proving the witness testified.

At the ex parte hearing on March 18, 1996, before Judge Czuleger, the

homicide investigator who testified at the ex parte hearing before Judge Bascue

largely repeated his earlier testimony.29 He added that, based on what he had

learned while investigating this case – including the murder of an individual who

had testified against the Sangra gang; the recent murder of Angel Carranza, which

police had been told ―may in fact [have been] because of his involvement in this

case; and the violence that the Sangra street gang is reputed to have and has

proven to have in several cases‖ – the lives of the witnesses in question and those

of their family members would be in ―grave danger‖ were the witnesses‘ identities

to become known. Judge Czuleger heard from two other witnesses at the March

18 hearing: (1) a second homicide investigator from the Los Angeles County

Sheriff‘s Department, who testified that an informant had told him Carranza had

been murdered because he was considered a ―rat‖ and because of his knowledge

and information about the case; and (2) a sergeant with the Los Angeles County

Sheriff‘s Department assigned to investigate prison gangs, who testified that the

Mexican Mafia had sponsored the murders in this case and that the lives of the

29 The investigator did not repeat his earlier testimony that defendant and a

Mexican Mafia member who ordered the hit were still at large.

52

witnesses in the case would be in danger were their identities to become known

because the Mexican Mafia would use ―any means necessary‖ to prevent them

from testifying, including killing them and/or members of their families.

It is clear from this record that the testimony each judge heard at the ex

parte hearings amply supported their respective redaction orders. It is also clear

that neither defendant nor his counsel could have argued anything substantial that

would have changed the court‘s rulings. Indeed, even now, despite knowing the

witnesses‘ identities and having access to the transcripts of the ex parte hearings,

defendant suggests no way in which he could have undermined the prosecution‘s

substantial showing or affected the court‘s rulings. Accordingly, even were

defendant correct that the ex parte proceedings constituted error, the error was

harmless under any standard.

Any alleged error was harmless for another reason: the court‘s ex parte

orders did not hamper defendant‘s ability to conduct a defense. As explained

earlier, despite the discovery limitations, defendant‘s counsel thoroughly cross-

examined those trial witnesses whose creditability was relevant to defendant‘s

defense. As also explained earlier, although the defense conducted little or no

cross-examination of the ―stranger‖ witnesses, because (1) these witnesses

testified only briefly about their observations on the day of the murders, (2) none

of them identified defendant, and (3) one testified that none of the people she saw

was in court, the discovery limitations did little, if anything, to impact defendant‘s

case. Thus, even had the court permitted defendant or his counsel to participate in

the ex parte hearings, and even had that participation resulted in disclosure of the

witnesses‘ identities, the outcome of defendant‘s trial would have been no

different. For these reasons, defendant‘s claim fails.

53

B. Gang Evidence

Defendant next argues the trial court prejudicially erred in permitting the

prosecution to rely at trial on certain gang-related evidence. Specifically, he

asserts the trial court erred in admitting the following: (1) one photograph of the

gang tattoos on his back (exhibit No. 57); (2) seven photographs of the gang

tattoos on Palma‘s body (exhibits Nos. 50-56); (3) two photographs of urban gang

graffiti (exhibits Nos. 72, 73); (4) eleven photographs showing various Sangra

gang members, some of whom were brandishing weapons or ―throwing‖ gang

signs (exhibits Nos. 3, 7, 8, 12A (containing four photographs), 58, 78, 79, 93);

and (5) two pieces of paper with the word ―Sangra‖ written in calligraphy, one

bearing the notation ―touch this and you die‖ (exhibits Nos. 60, 92). Defendant

also complains about two exhibits that, though not admitted into evidence, the

prosecution used in examining witnesses at trial: (1) a district attorney‘s notice of

determination that Sangra is a criminal street gang (marked as exhibit No. 71); and

(2) a drawing of a drive-by shooting recovered during a search of Ortiz‘s residence

(marked as exhibit No. 91). Finally, defendant appears to complain that the trial

court permitted the prosecution during opening statement to show to the jury and

discuss a photograph showing other Sangra gang members, on which ―Sangra

gang kills‖ was hand-written at the top and ―187‖ — the Penal Code section for

murder — was hand-written across someone‘s chest. According to defendant,

under Evidence Code sections 352 and 1101, the trial court should have barred the

prosecution from using this evidence at trial. Moreover, defendant asserts, the

prosecution‘s use of this evidence violated his constitutional rights to due process,

54

a fair trial, and a reliable determination of guilt and penalty. For reasons set forth

below, defendant‘s claims fail.30

1. Evidence Code section 1101

With certain exceptions not relevant here, Evidence Code section 1101,

subdivision (a), provides that ―evidence of a person‘s character‖ – whether in the

form of an opinion, evidence of reputation, or evidence of specific instances of

conduct – ―is inadmissible when offered to prove [the person‘s] conduct on a

specified occasion.‖ This prohibition, however, does not preclude ―the admission

of evidence that a person committed a crime, civil wrong, or other act when

relevant to prove some fact . . . other than [the person‘s] disposition to commit

such an act,‖ including ―motive, opportunity, intent, preparation, [or] plan.‖

(Evid. Code, § 1101, subd. (b).)

30 Procedurally, the People assert that, by failing to object in the trial court ―to

the majority‖ of the gang-related evidence he now challenges, defendant ―almost

entirely forfeited‖ his right to challenge on appeal the prosecution‘s use of this

evidence. According to the People, the record shows that defendant ―objected

specifically‖ only to the tattoo photographs, a photograph the trial court excluded,

and the graffiti pictures from defendant‘s scrapbook. His ―objection to ‗others‘

was not [sufficiently] specific‖ and, although the court ―particularly warned

counsel to make a more specific objection during trial regarding the photographs,‖

―[c]ounsel never pursued a ruling at trial.‖ In response, defendant insists that his

counsel‘s objections ―encompassed all of the gang-related exhibits‖ in question.

The record makes it very difficult to assess the prosecution‘s forfeiture

claim. In their arguments to the court about admissibility, the parties referred to

the exhibits only by general description because, despite the court‘s request, the

parties did not mark the exhibits before making their arguments. Given the

ambiguities in the record, we assume defendant preserved his right to raise these

claims and proceed to the merits. (See People v. Champion (1995) 9 Cal.4th 879,

908, fn. 6 [―Because the question whether defendants have preserved their right to

raise this issue on appeal is close and difficult, we assume [they] have preserved

their right, and proceed to the merits.‖].)

55

Defendant asserts ―the only purported probative value‖ of the gang

evidence he now challenges was to establish that he and Palma were Sangra gang

members and that Sangra ―was a ‗criminal street gang‘ within the meaning of the

[alleged] gang enhancement‖ under section 186.22. However, defendant

continues, neither of these propositions ―was in dispute‖ because both his counsel

and Palma‘s offered to stipulate not only to the defendants‘ Sangra gang

membership, but also ―to the ‗exact language‘ of the gang enhancement

allegation,‖ thus ― ‗reliev[ing] the burden of the people of proving that

allegation.‘ ‖ Accordingly, defendant asserts, the evidence ―had no probative

value as to the critical question of whether [he] had any involvement in the

charged offenses‖ and was offered by the prosecution to convince the jury he

committed the charged crimes based on his ―propensity to commit‖ such crimes.

Initially, it appears that defendant‘s argument under Evidence Code section

1101 is not cognizable on appeal because he failed to object on this basis at trial.

Evidence Code section 353, subdivision (a), provides that a court may not reverse

a judgment based on error in admitting evidence unless ―an objection to or a

motion to exclude or to strike the evidence . . . was timely made and so stated as to

make clear the specific ground of the objection or motion.‖ ―In accordance with

this statute, we have consistently held that the ‗defendant‘s failure to make a

timely and specific objection‘ on the ground asserted on appeal makes that ground

not cognizable. [Citations.]‖ (People v. Seijas (2005) 36 Cal.4th 291, 302.)

―Although no ‗particular form of objection‖ is required, the objection must ‗fairly

inform the trial court, as well as the party offering the evidence, of the specific

reason or reasons the objecting party believes the evidence should be excluded, so

the party offering the evidence can respond appropriately and the court can make a

fully informed ruling.‘ [Citation.]‖ (People v. Zamudio, supra, 43 Cal.4th at p.

354.) Here, in objecting to the gang-related evidence, defense counsel neither

56

mentioned Evidence Code section 1101 nor asserted that the evidence constituted

inadmissible character evidence. Defense counsel did make various other

objections to some of the evidence in question, including that it was irrelevant,

cumulative, lacking in foundation, or prejudicial. However, these objections were

insufficient to preserve for appeal the claim that the evidence was inadmissible

under Evidence Code section 1101, subdivision (a). (People v. Doolin (2009) 45

Cal.4th 390, 437 [trial objection that evidence ―was irrelevant and unduly

prejudicial under Evidence Code section 352‖ was insufficient to preserve for

appeal claim under Evidence Code section 1101]; People v. Demetrulias (2006) 39

Cal.4th 1, 19-21 [trial objection that evidence was irrelevant, speculative and

lacked foundation was insufficient to preserve for appeal claim under Evidence

Code section 1101]; People v. Guerra (2006) 37 Cal.4th 1067, 1117 [relevance

objection at trial was insufficient to preserve for appeal objection that testimony

was inadmissible character evidence]).

In any event, defendant‘s claim also fails on the merits. As a general

matter, ―the prosecution may not be compelled to accept a stipulation where the

effect would be to deprive the state‘s case of its persuasiveness and forcefulness.‖

(People v. Streeter (2012) 54 Cal.4th 205, 238.) Here, defendant is simply

incorrect in asserting that ―the only purported probative value‖ of the gang

evidence he now challenges was to establish the gang enhancement. As

previously explained, the prosecution‘s theory was that the Mexican Mafia had

directed the Sangra gang to kill Dido Moreno because he had dropped out of the

Mexican Mafia, and that Sangra gang members – including defendant and Palma –

obeyed that order because of their own gang allegiances. Given this theory,

evidence of defendant‘s and Palma‘s membership in and level of commitment to

Sangra – including their Sangra tattoos and pictures showing them with other

Sangra gang members, evidence of Palma‘s affiliation with and allegiance to the

57

Mexican Mafia – including some of his other tattoos, and evidence showing the

workings and activities of Sangra and the close connections among its members

was relevant to both motive and identity. Thus, putting aside the gang

enhancement, because the gang-related evidence at issue was ―relevant to prove

some fact . . . other than [defendant‘s] disposition to commit‖ crimes (Evid. Code,

§ 1101, subd. (b)), Evidence Code section 1101, subdivision (a), did not preclude

its admission.31 (People v. Williams (1997) 16 Cal.4th 153, 193-194 [gang

evidence admissible to show motive and identity].)

Moreover, contrary to defendant‘s assertion, the record does not clearly

show that defendant‘s counsel and Palma‘s counsel offered to stipulate ―to the

‗exact language‘ of‖ the entire gang enhancement. As it does now, at the time of

the alleged crimes, section 186.22, subdivision (b)(1), prescribed an enhanced

penalty for ―any person convicted of a felony committed for the benefit of, at the

direction of, or in association with any criminal street gang, with the specific

intent to promote, further, or assist in any criminal conduct by gang members.‖

For purposes of this section, a ―criminal street gang‖ is defined as ―any ongoing

organization, association, or group of three or more persons, whether formal or

informal, having as one of its primary activities the commission of one or more of

[specified] criminal acts . . . , having a common name or common identifying sign

or symbol, and whose members individually or collectively engage in or have

engaged in a pattern of criminal gang activity.‖ (§ 186.22, subd. (f).) As used in

31 Defendant‘s offer to stipulate that he was a Sangra gang member did not

render proof of his membership in and commitment to Sangra irrelevant. As part

of his defense at trial, defendant attempted to persuade the jury that, at the time of

the murders, he either had separated himself from Sangra and was no longer active

in the gang or that he was in the process of separating himself from Sangra and

becoming inactive.

58

this definition, a ― ‗pattern of criminal gang activity‘ ‖ meant ―the commission,

attempted commission, or solicitation of two or more of [certain specified]

offenses, provided at least one of those offenses occurred after the effective date of

this chapter and the last of those offenses occurred within three years after a prior

offense, and the offenses are committed on separate occasions, or by two or more

persons[.]‖ (§ 186.22, subd. (e), as amended by Stats. 1994, ch. 451, § 1, p. 2439.)

As relevant to this issue, the record shows the following: On October 21,

1996, while discussing the gang-related evidence, defendant‘s counsel offered to

stipulate that defendant ―is a Sangra street gang member.‖ Palma‘s counsel then

offered to stipulate that Palma was a Sangra gang member and that Sangra ―is a

violent street gang for the purposes of proving up the allegation.‖ Later, after the

prosecution responded that the offered stipulations did not include everything it

needed to establish regarding the alleged gang enhancement, Palma‘s counsel

indicated his willingness to stipulate that Sangra ―is a street gang pursuant to the

two allegations.‖ Defendant‘s counsel then added: ―I believe that [Palma‘s

counsel] recited the exact allegation in the information and in the complaint that

was filed against the individuals and that‘s what we‘re willing to stipulate to.‖

Contrary to defendant‘s current assertion, this record does not clearly show

that defendant‘s counsel and Palma‘s offered to stipulate to the ―exact language‖

of the entire alleged gang enhancement. The proposed stipulation that defendant

and Palma were Sangra gang members would have done little, if anything, for the

prosecution; under the operative statutory language, as set forth above, that fact

was neither necessary nor sufficient to establish any element of the gang

enhancement. (See People v. Valdez (1997) 58 Cal.App.4th 494, 505 [―gang

membership is not an element‖ of gang enhancement].) Moreover, although, read

in context, the proposed stipulation of Palma‘s counsel – which defendant‘s

counsel apparently joined – that Sangra was ―a street gang for the purposes of

59

proving up the [gang enhancement] allegation‖ might arguably have established

that Sangra was a ―criminal street gang‖ within the meaning of the enhancement

statute, it would not have established other required elements of the enhancement,

i.e., that defendant and Palma committed the murders (1) ―for the benefit of, at the

direction of, or in association with‖ a criminal street gang, (2) ―with the specific

intent to promote, further, or assist in any criminal conduct by gang members.‖

(§ 186.22(b)(1).) Thus, the record does not support the claim that defendant‘s

counsel and Palma‘s offered to stipulate to the exact language of the alleged

enhancement.

Nor does defendant persuasively demonstrate otherwise by citing his trial

counsel‘s statement, ―I believe that [Palma‘s counsel] recited the exact allegation

in the information and in the complaint that was filed against the individuals and

that‘s what we‘re willing to stipulate to.‖ As the preceding discussion

demonstrates, Palma‘s counsel neither recited nor offered to stipulate to ―the exact

[gang enhancement] allegation‖; at most, he offered to stipulate to one element –

the ―criminal street gang‖ element – of that allegation. Thus, the prosecution

would still have had to prove that Palma committed the murders ―for the benefit

of, at the direction of, or in association with‖ a criminal street gang ―with the

specific intent to promote, further, or assist in any criminal conduct by gang

members.‖ (§ 186.22(b)(1).) Insofar as defendant now asserts that his counsel‘s

comment was an offer to go further, the comment was too ―ambiguous in form‖

(People v. Szeto (1981) 29 Cal.3d 20, 29) to establish that defendant offered to

stipulate to every element of the alleged enhancement. As noted, the prosecution

did not agree to the proffered stipulation. We therefore reject defendant‘s claim.

60

2. Evidence Code section 352

Evidence Code section 352 provides that a court ―in its discretion may

exclude evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury.‖ We review a trial court‘s ruling under this section for abuse

of discretion and will reverse a trial court‘s exercise of discretion to admit

evidence ―only if ‗the probative value of the [evidence] clearly is outweighed by

their prejudicial effect.‘ [Citations.]‖ (People v. Carey (2007) 41 Cal.4th 109,

128.) ―Prejudice for purposes of Evidence Code section 352 means evidence that

tends to evoke an emotional bias against the defendant with very little effect on

issues, not evidence that is probative of a defendant's guilt.‖ (People v. Crew

(2003) 31 Cal.4th 822, 842.)

Defendant asserts that, because the prejudicial effect of the gang evidence

he now challenges substantially outweighed its probative value, the trial court

abused its discretion in admitting it. He first contends the evidence‘s ―only

purported probative value‖ was to show that he and Palma were Sangra gang

members and that Sangra was a ―criminal street gang‖ within the meaning of

section 186.22. Given defense counsel‘s proposed stipulations, these propositions

were not in dispute. According to defendant, the evidence ―had no tendency to

prove either motive or intent‖, and only ―slight,‖ ―negligible,‖ or ―no probative

value‖ regarding the ―critical‖ issue that was in dispute: whether he was involved

in the shootings. And, to the extent any of the evidence was relevant to any issue

that was genuinely in dispute, the prosecution could have relied on the other, ―less

inflammatory‖ gang evidence it presented. Regarding prejudice, defendant asserts

there was ―a high degree of danger‖ and ―strong likelihood‖ the evidence would

―mislead,‖ ―confuse,‖ ―inflame,‖ and ―frighten‖ the jurors and lead them to

61

believe that, ―because of his association with the gang,‖ he ―had the propensity to

commit the kind of crimes for which he was on trial.‖ It thus ―shifted the focus

from the properly admitted testimony and turned the trial into what was essentially

an exercise in character assassination and guilt by association,‖ creating the risk

the jurors ―would decide the case based upon inappropriate considerations‖ and

render a guilty verdict simply to ― ‗punish‘ ‖ him for being ― ‗a person of bad

character,‘ ‖ who had committed, and would again commit, other crimes.

Defendant‘s argument is unpersuasive. As explained in the preceding

section, for several reasons, defense counsel‘s proposed stipulations did not render

the evidence in question irrelevant. Nor did the prosecution‘s purported ability to

establish the disputed matters with the other evidence render the gang evidence

irrelevant. (People v. Scheid (1997) 16 Cal.4th 1, 16 [―it is immaterial for

purposes of determining the relevance of evidence that other evidence may

establish the same point‖].) Relevant photographs ―are admissible even if

repetitive of other evidence, provided their probative value is not substantially

outweighed by their prejudicial effect.‖ (People v. Watson (2008) 43 Cal.4th 652,

684.) As to that proviso, defendant‘s argument regarding the prejudicial effect of

the challenged gang-related evidence fails on the record here, which demonstrates

that the prosecution introduced a raft of other gang-related evidence — mostly in

the form of testimony — that defendant neither objected to at trial nor challenges

on appeal. Given the extensive other evidence of defendant‘s Sangra gang

membership and of Sangra‘s activities, defendant‘s claim that the handful of gang-

related exhibits he now challenges created ―a substantial danger of undue

prejudice‖ within the meaning of Evidence Code section 352 — i.e., the

challenged evidence ― ‗uniquely tend[ed] to evoke an emotional bias against

defendant as an individual‘ ‖ (People v. Bolin (1998) 18 Cal.4th 297, 320, italics

added) — is untenable. Defendant‘s claim under Evidence Code section 352

62

therefore fails. (See People v. Wright (1985) 39 Cal.3d 576, 585 [evidence of

heroin in victim‘s system not unduly prejudicial ―[i]n light of the evidence already

before the jury‖ that victim used heroin]; People v. Mullens (2004) 119

Cal.App.4th 648, 660 [testimony about kissing child ―cannot be viewed as unduly

inflammatory in light of the other evidence of lewd behavior‖].)

3. Constitutional Claims

Defendant argues the prosecution‘s use of the challenged gang-related

evidence violated not only his statutory rights, but also his constitutional rights to

due process, a fair trial, and a reliable determination of guilt and penalty. He

failed to assert these constitutional objections at trial. Because there was no

statutory error, his constitutional claims, insofar as they are cognizable on appeal,

fail. (People v. Hawkins (1995) 10 Cal.4th 920, 952.)

C. Witnesses’ Fear in Testifying

Defendant argues the trial court prejudicially erred in permitting three

witnesses – Witness No. 13, Witness No. 16, and David Sandate – to testify about

their fear in testifying at trial and about incidents related to that fear. Admission

of this evidence, he asserts, fatally infected the trial with unfairness and violated

his constitutional rights to due process, a fair trial, and a reliable penalty

determination. Moreover, he contends, the prosecution heightened the testimony‘s

prejudicial impact by referring to it during closing argument.

In making his argument, defendant acknowledges that evidence a witness is

afraid to testify ―may be admissible on the issue of the threatened witness‘s

credibility.‖ As we have explained: ― ‗Evidence that a witness is afraid to testify

or fears retaliation for testifying is relevant to the credibility of that witness and is

therefore admissible.‘ [Citations.] An explanation of the basis for the witness‘s

fear is likewise relevant to the jury‘s assessment of his or her credibility and is

63

well within the discretion of the trial court. [Citation.] For such evidence to be

admissible, there is no requirement to show threats against the witness were made

by the defendant personally or the witness‘s fear of retaliation is ‗directly linked‘

to the defendant. [Citation.]‖ 32 (People v. Guerra, supra, 37 Cal.4th at pp. 1141-

1142 (Guerra).)

Nevertheless, defendant argues, quoting People v. Yeats (1984) 150

Cal.App.3d 983, 986 (Yeats), such evidence is not admissible unless the

prosecution first ― ‗establish[es] the relevance of the witness‘s state of mind by

demonstrating that the witness‘s [trial] testimony is inconsistent or otherwise

suspect.‘ ‖ According to defendant, because the prosecution failed to make this

required showing as to each of the three witnesses, the evidence was inadmissible.

Defendant‘s argument fails in light of our recent decision in People v.

Mendoza (2011) 52 Cal.4th 1056, 1086 (Mendoza), which rejected the view that

evidence of a witness‘s fear in testifying is inadmissible unless the witness‘s trial

testimony is inconsistent with a prior statement. As we explained, ―evidence that

a witness testifies despite fear is important to fully evaluating his or her credibility.

[Citation.] The logic of this rationale does not hinge on whether the witness gave

prior inconsistent testimony.‖ (Ibid.) Thus, in order to introduce evidence of the

witnesses‘ fear, the prosecution was not required to show that their testimony was

inconsistent with prior statements or otherwise suspect.33

32 Evidence of efforts to intimidate a witness is also admissible to show a

defendant‘s consciousness of guilt if there is evidence the defendant authorized or

acquiesced in the efforts. (People v. Hannon (1977) 19 Cal.3d 588, 598-600.)

The People do not argue the evidence at issue was admissible on this basis.

33 We disapprove People v. Yeats, supra, 150 Cal.App.3d 983, 986, to the

extent it is inconsistent with this analysis. In announcing its rule, the court in

Yeats relied solely on People v. Brooks (1979) 88 Cal.App.3d 180. (Yeats, supra,

at p. 986.) In Mendoza, we disapproved Brooks, explaining that it ―cited no

(footnote continued on next page)

64

In any event, defendant errs in asserting that Witness No. 13‘s trial

testimony gave rise to no credibility issues to which the evidence of her fear was

relevant. In many instances, Witness No. 13 testified she could not remember

details she had earlier given police. Contrary to defendant‘s assertion, she did not,

―in every [such] instance . . . affirm[] her prior statements to investigators and her

preliminary hearing testimony when the prosecut[ion] refreshed her recollection

by reading them to her.‖ At least five times during direct examination, after

testifying she did not recall a prior statement, she added, ―if that‘s what‘s there

then that‘s what I said,‖ or words to that effect. 34 These responses hardly

constitute affirmations of her prior statements. Moreover, at many points during

her testimony, Witness No. 13 answered the prosecution‘s questions, not with a

(footnote continued from previous page)

authority for the proposition that inconsistent testimony is a prerequisite to the

admission of evidence of a third party‘s threat or a witness‘s fear‖ and was

―contrary to decisions of this court that have recognized the relevance of such

evidence when inconsistent testimony was not at issue‖ or recanted. (Mendoza,

supra, 52 Cal.4th at p. 1086.)

34 The quoted statement was Witness No. 13‘s response after testifying that

she did not recall previously stating she saw the words ―Nissan‖ and ―Maxima‖ on

the car at her mother‘s house or that her brother was at the house when Jimmy

came back the second time. After testifying she did not recall previously stating

that her brother had been on the telephone at her mother‘s house and had received

several pages, she similarly added, ―But if it‘s there then that‘s what I said.‖ At

another point, after testifying she did not remember her prior statement that

someone called ―Tricky‖ (i.e., Logan) had arrived at her mother‘s house with two

other people, she added, ―That‘s what‘s there, that‘s what I said, but I don‘t

recall.‖ Finally, after testifying she did not recall previously testifying that she

had seen a gun in her mother‘s house and that her mother, upon discovering the

gun, had asked her brother to leave, Witness No. 13 added, ―If that‘s what I said,

that is what I said.‖

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simple ―yes‖ or a ―no,‖ but with a decidedly equivocal, ―I believe so‖ or ―I

guess.‖35

Based on these answers, when defendant‘s counsel argued at trial that

Witness No. 13 had affirmed her prior testimony — and that the court therefore

should not permit the prosecution to play for the jury a tape of her prior

statements — the trial court responded: ―[W]e must have listened to two different

trials because it is like pulling teeth from her and I don‘t blame her. I can

understand — I can‘t, really understand the terror she‘s probably living. . . . So

many times when — I mean, ‗I don‘t remember‘ or ‗I don‘t know‘ that must have

been her testimony 40 or 50 times in answer to questions. And then when [the

prosecution] would go to the transcript of something, more often than not, the

answer is, ‗well, if it‘s there, I guess it‘s true.‘ And it was — I mean, if it is

testimony left as it is it would be fertile fields for the [defense counsel] to plow in

argument. I mean, it‘s — she never really, rarely acknowledged that, in fact, she

had said something and it was almost all of her testimony. It was very little of the

testimony that, you know, was straightforward answer. And I don‘t — you know,

I don‘t know whether she‘s so frightened that she trying to be deliberately vague.

I mean, certainly, she hasn‘t come in, I don‘t think, and lied and said something

one way before and now is saying something absolutely the opposite. I think she‘s

doing it so many people who get in this situation and they have made some

statements and now they‘re having to repeat it in a very serious situation. We‘re

getting the ‗I don‘t know‘ answers.‖ Later, after defendant‘s counsel argued that

the witness did not need rehabilitating because ―most of her answers were ‗I

35 For example, after playing a tape of one of Witness No. 13‘s prior

statements, the prosecution asked, ―Was that your voice on the tape?‖ Witness

No. 13 responded, ―I believe so.‖

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believe so,‘ ‖ the court responded: ―This happened a lot, well, if it‘s there, ‗I

guess so‘ or ‗I believe so.‘ There‘s a lot more to an answer than just the words.

There‘s the body language.‖ ―It was difficult to say she was an adverse witness or

hostile witness because I think she‘s anything but that. But, boy, she‘s sure, and I

don‘t blame her, reluctant. My feeling is that that kind of answer is, basically, it‘s

acquiescing and I think — it is part rehabilitation. In other words, her sort of

being fed and her arm‘s being twisted type of answers I think if there are prior

answers that are consistent to which you sort of begrudgingly or half acquiescing

to are proper.‖

Given Witness No. 13‘s professed inability to remember her previous

statements, her equivocal responses to many of the prosecution‘s questions, and

the hesitancy and reluctance she demonstrated in answering the prosecution‘s

questions, the trial court did not abuse its discretion in determining that evidence

of her fear in testifying was relevant to the jury‘s assessment of her credibility.

(See People v. Harris (2008) 43 Cal.4th 1269, 1287-1290 [evidence of threat to

witness admissible given his professed inability at trial to remember prior

statements that, while preparing for his testimony earlier that morning, he said he

recalled]; Guerra, supra, 37 Cal.4th at p. 1142 [evidence of witnesses‘ fear was

admissible given their ―hesitancy in responding to questions‖ at trial]; People v.

Avalos (1984) 37 Cal.3d 216, 232 [testimony regarding witness‘s fear was

admissible given her hesitation in responding when asked whether she saw in the

court room the person she had identified in a lineup].)

Defendant also errs in asserting that there were no credibility issues

regarding Witness No. 16 to which the evidence of his fear was relevant. During

his direct testimony, Witness No. 16 admitted he had received immunity from

prosecution for the murders in exchange for his truthful testimony, had initially

lied to police when they interviewed him about the case, and had refused to testify

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before the grand jury even after receiving immunity. It was apparent that defense

counsel would attack Witness No. 16‘s credibility on cross-examination by

suggesting he was a liar and that the promise of immunity was the motive for his

testimony favorable to the prosecution. In anticipation of that attack, the

prosecution was entitled to show that the witness was willing to testify against

defendant and Palma despite his fear of retaliation. (See Mendoza, supra, 52

Cal.4th at p. 1085 [prosecution may introduce evidence supporting a witness‘s

credibility on direct examination when it ―reasonably anticipates a defense attack

on the [witness‘s] credibility‖]; People v. Green (1980) 27 Cal.3d 1, 19-20 [in

anticipation of defense‘s attack on witness‘s credibility based on promise he

would not be sent to prison for parole violation, prosecution could introduce

evidence of witness‘s fear in testifying].)36

Insofar as defendant argues the evidence was inadmissible under Evidence

Code section 352 because its potential to cause undue prejudice substantially

outweighed its probative value, defendant forfeited this argument by failing to

object on this basis at trial. The only objections defendant‘s counsel raised at trial

were that the evidence was irrelevant or lacked foundation, or that the

36 During his testimony, Witness No. 16 expressed ―concern‖ about a

photograph (exhibit No. 58) of himself and other Sangra gang members with his

face scratched out and ―187‖ — the Penal Code section for murder — written

across his chest. Defendant asserts that, because Witness No. 16 testified he never

saw the photograph ―until the prosecutor showed it to him while he was on the

witness stand,‖ ―it could not conceivably have had any bearing on his state of

mind, or account for any supposed evasiveness or inconsistency in his testimony.‖

However, the witness also testified that the prosecution told him of the picture‘s

existence before he took the stand. Moreover, the photograph was relevant to

support the witness‘s testimony about his fear. In any event, given the other

testimony about the photograph, the witness‘s testimony that the photograph

―concern[ed]‖ him added little to the case.

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prosecution‘s questions were leading. Palma‘s counsel objected at one point that

the evidence was ―improper, calling for a conclusion.‖ Contrary to defendant‘s

assertion, these objections were insufficient to preserve for appeal the claim that

the trial court should have excluded the evidence under Evidence Code section

352. ―Although [defense] counsel‘s lack of express reference to Evidence Code

section 352 is not itself fatal to defendant‘s claim, the stated bas[e]s of the

objection[s] [were] insufficient to alert the trial court that this provision was being

invoked.‖ (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015 [relevance

objection insufficient to preserve for review claim under Evidence Code section

352]; see also People v. Ghent (1987) 43 Cal.3d 739, 766 [objection that question

is leading does not preserve for review claim under Evidence Code section 352];

People v. Champion, supra, 9 Cal.4th at p. 913 [relevance objection did not

preserve for review claim under Evidence Code section 352].) Nor is defendant

correct in asserting that, because the trial court overruled the objections defense

counsel did make, an objection under Evidence Code section 352 would have been

futile. Nothing about the court‘s rulings on counsel‘s objections indicates it would

have been futile to object to the same evidence under Evidence Code section 352.

For all of the above reasons, defendant‘s challenge to the evidence‘s admission is

unavailing.

Also unavailing is defendant‘s claim the trial court erred in failing, sua

sponte, to give a limiting instruction informing the jurors they could consider the

evidence of the witnesses‘ fear in testifying only in assessing credibility. We have

consistently held that where, as here, a defendant fails to request an instruction, a

trial court ―generally [has] no duty to instruct on the limited admissibility of

evidence. [Citation.]‖ (People v. Lang (1989) 49 Cal.3d 991, 1020; see also

Evidence Code section 355 [―When evidence is admissible . . . for one purpose

and is inadmissible . . . for another purpose, the court upon request shall restrict

69

the evidence to its proper scope and instruct the jury accordingly.‖ (Italics

added.)].) Although acknowledging this rule, defendant invokes People v. Collie,

supra, 30 Cal.3d at p. 64, where we hypothesized that ―[t]here may be an

occasional extraordinary case in which unprotested evidence . . . is a dominant part

of the evidence against the accused, and is both highly prejudicial and minimally

relevant to any legitimate purpose.‖ Defendant‘s reliance on Collie fails because

the evidence of the witnesses‘ fear was more than minimally relevant to a

legitimate purpose – supporting the witnesses‘ credibility – and was not ―a

dominant part of the evidence against‖ defendant. (Ibid.) Therefore, the trial

court did not err in failing to instruct, sua sponte, on the evidence‘s limited

admissibility.

D. Alleged Hearsay Statements of Shyrock

Defendant asserts the trial court prejudicially erred in permitting Valdemar

to testify at trial that, during a Mexican Mafia meeting in January 1995, Shyrock

stated: ―I don‘t know if you have ever heard of this brother Dido. He dropped out

a long time ago. He‘s in an apartment where I was living. The mother fucker was

living right downstairs but never showed his face. All kinds of people in the pad,

bunch of young sisters and kids, all kinds of shit. So I‘m trying to figure out how

to – I need a silencer is what I need.‖ Defendant argues Shyrock‘s statement was

hearsay and the trial court erred in admitting it under the hearsay exception set

forth in Evidence Code section 1230, which provides in relevant part: ―Evidence

of a statement by a declarant having sufficient knowledge of the subject is not

made inadmissible by the hearsay rule if the declarant is unavailable as a witness

and the statement, when made, . . . so far subjected him to the risk of civil or

criminal liability . . . that a reasonable man in his position would not have made

the statement unless he believed it to be true.‖ According to defendant, this

exception was inapplicable because the prosecution failed to show that Shyrock

70

was ―unavailable as a witness,‖ that the statement was against his penal interest

when he made it, and that there was sufficient indicia of the statement‘s

trustworthiness. Defendant also argues that, because the statement does not bear

particularized guarantees of reliability, its admission violated his constitutional

rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution. ―If nothing else,‖ defendant lastly contends, the trial court

erred in failing to exclude the statement under Evidence Code section 352 because

it was ― ‗so [rife] with condemning facts against [him] that [it was] devastating or

crucial to his case.‘ ‖ For reasons that follow, defendant‘s claims fail.

1. Background

Before trial, the prosecution moved to admit at trial certain out-of-court

statements of nontestifying witnesses. As here relevant, the prosecution argued

that Raymond Shyrock‘s statement was admissible under Evidence Code section

1230 and as circumstantial evidence of the existence of a conspiracy. At a hearing

on the motion, the prosecution argued the statement was relevant to show motive

and identity and was against Shyrock‘s penal interest because, reasonably

interpreted, it was a statement that Shyrock, a member of the Mexican Mafia,

intended either to kill Dido or have him killed because he was a Mexican Mafia

dropout. The court then asked, ―Is he unavailable?‖ The prosecution responded

by first asking the court ―to assume‖ ―[f]or the purpose of this proceeding‖ that

Shyrock was unavailable, and then adding: (1) the prosecution would have

Shyrock‘s attorney ―fill out a document indicating that if [Shyrock] was called to

testify he would take the Fifth [Amendment];‖ (2) Shyrock was a defendant in a

federal RICO case and the United States Attorney had informed the prosecution

that it ―would oppose any motion to bring him over here either as a witness or a

defendant;‖ and (3) ―the metropolitan detention center‖ where Shyrock was in

custody ―refuses to accept the subpoena by the county authorities as to Mr.

Shyrock.‖ The court then asked if the prosecution had, in fact, attempted to

71

subpoena Shyrock. The prosecutor replied: ―I have talked to them and I was told

if I attempted that‘s what . . . would happen. [¶] So I understand the court‘s

position, but . . . I think clearly if the court looks at it carefully I will be able to

show that Mr. Shyrock is unavailable, one, because the federal authorities refuse

to release him, two, because he clearly has a Fifth Amendment privilege against

self-incrimination.‖

At this point, Ortiz‘s counsel interjected, ―Even if [the prosecution] covered

these hurdles we are discussing we still have a section 352 problem at the trial he‘s

going to have to deal with.‖ When Maciel‘s counsel interrupted and asked to

speak, the court explained that it was going to give everyone a chance to respond

and invited Ortiz‘s counsel to ―go ahead.‖ Ortiz‘s counsel then stated, ―That was

what I wanted to indicate to the court.‖ The court replied, ―All right. Mr.

Bestard.‖ Defendant‘s counsel responded, ―Submitted at this time.‖ Logan‘s

counsel then argued it was unclear that the statement was against Shyrock‘s penal

interest and that, given the ambiguity, it was inadmissible under Evidence Code

section 352. Maciel‘s counsel then added that the statement was irrelevant

because Shyrock was not a defendant in the case and that there was ―a

foundational problem‖ because ―no one has ever established‖ that Dido ―was a

Mafia member.‖ Maciel‘s counsel also challenged the prosecution‘s

representations regarding Shyrock‘s unavailability, stating: ―We need Raymond

Shyrock, who I say is available and who is willing to come to this court and testify

that he never intended to make those statements. [The prosecution] has asserted

his Fifth Amendment right for him, but I will bet you that Raymond Shyrock will

come here and testify precisely to what he said and what he meant . . . .‖

The court then interjected: ―I don‘t like to make rulings when they aren‘t

ready to be made – at this point [the prosecution] ha[s] not been able to establish

unavailability.‖ The prosecutor responded: ―I can‘t argue with the court.‖ The

court continued: ―I am not going to rule. I don‘t want to – clearly, at this time as

we sit here in court you have not established the unavailability of Mr. Shyrock so

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that these statements are admissible.‖ The prosecutor again responded, ―I cannot

argue,‖ but added: ―What I would simply ask the court to do is put the matter

. . . over to next Monday the 9th, and I will take the steps between now and the

9th – I will take two steps. I will contact Mr. Shyrock‘s attorney, who I have not

yet contacted, and I will also bring in somebody from the metropolitan detention

center who will testify they either will or will not accept the subpoena, and we can

resolve the unavailability issue next Monday and then either yourself or Judge

Czuleger can determine if . . . the statements are admissible.‖ After the

prosecution and Maciel‘s counsel argued further about whether Shyrock was

willing to testify and whether the federal authorities would accept a subpoena, the

court interjected: ―Hold on. I will let you be heard on the other arguments. As far

as the unavailability issue, I can make a ruling subject to whether or not he‘s

available or not so at least you can have a ruling all sides will know how to

proceed on this issue.‖

The court then invited Maciel‘s counsel to address the Evidence Code

section 352 issue ―or any other argument you want to make.‖ Maciel‘s counsel

responded by discussing only Evidence Code section 352. Palma‘s counsel

joined in that argument and added: ―It‘s totally hearsay. I don‘t believe there‘s

any established exception to the hearsay rule that has been laid out here, and I

would also object on the grounds that it‘s not relevant.‖ Throughout these

exchanges, defendant‘s counsel remained silent.

Consistent with its earlier comments, the court then stated that ―the

unavailability issue will be left for another time.‖ It conditionally ruled that, if the

prosecution established Shyrock‘s unavailability, the statement would be

admissible under Evidence Code section 1230 as ―a declaration against penal

interest.‖ It declined to order exclusion under Evidence Code section 352, finding

that the statement was ―more probative than prejudicial.‖

As far as the record shows, the issue of Shyrock‘s unavailability never

arose again. At trial, when the prosecution asked Valdemar to testify regarding

73

Shyrock‘s statement, neither defendant‘s counsel nor Palma‘s raised any

objection.

2. Discussion

Initially, the People contend that, by failing to object in the trial court to

admission of Shyrock‘s statement, defendant failed to preserve this issue for

appeal. In their view, the record, as set forth above, shows that defendant‘s

counsel neither joined in the objections of cocounsel nor made an objection of his

own. Moreover, the People assert, ―even when co-counsel addressed the issue,

they argued relevance and Evidence Code section 352, not the Evidence Code

section 1230 requirements‖ or the constitutional issues that defendant now raises.

Thus, the People argue, ―there was neither a timely nor a specific objection . . .

sufficient to preserve the[se] issue[s] for appeal.‖ ―[A]t the very least,‖ the People

continue, defendant forfeited his challenge to the prosecution‘s showing of

Shyrock‘s unavailability by failing to raise the issue at any time after the court

deferred its ruling on that question.37

The prosecution‘s forfeiture argument appears to be correct insofar as

defendant now seeks to challenge the statement‘s trustworthiness, to question

Shyrock‘s unavailability, and to raise constitutional objections. Regarding

trustworthiness, as the preceding discussion demonstrates, at no time did anyone

assert there were insufficient indicia of the statement‘s trustworthiness. Therefore,

defendant may not raise that issue on appeal. (People v. Hernandez (1999) 71

Cal.App.4th 417, 425 [defendant could not argue on appeal that statements lacked

sufficient indicia of reliability because ―he failed to object to the statements below

on this ground‖].) This conclusion also defeats defendant‘s constitutional claims,

which he did not raise in the trial court and which hinge on his assertion that the

37 In his briefs, defendant offers no response to the People‘s forfeiture

arguments.

74

statement lacks particularized guarantees of trustworthiness. Regarding Shyrock‘s

unavailability, as the preceding discussion also demonstrates, the trial court

expressly declined to make a ruling and informed counsel that the issue would ―be

left for another time.‖ Neither defendant nor anyone else raised the issue again or

objected when the prosecution offered the evidence at trial. As we have held,

―[f]ailure to press for a ruling on a motion to exclude evidence forfeits appellate

review of the claim because such failure deprives the trial court of the opportunity

to correct potential error in the first instance. [Citation.]‖ (People v. Lewis (2008)

43 Cal.4th 415, 481; see also People v. Morris (1991) 53 Cal.3d 152, 195

[defendant forfeited appellate challenge to admission of testimony by failing ―to

press for‖ a ruling ―until he obtained one‖].) Thus, because defendant failed to

press the trial court for a ruling on Shyrock‘s unavailability, he may not raise the

issue on appeal.

However, the prosecution‘s forfeiture claim is arguable insofar as defendant

now asserts the statement was not against Shyrock‘s penal interest and should

have been excluded under Evidence Code section 352. It is true that defendant‘s

counsel did not himself raise either of these questions, and that his only comment

regarding the statement‘s admissibility was, ―Submitted at this time.‖ However,

the record shows that, before defendant‘s counsel made this comment, the court

itself raised the ―penal interest‖ issue by asking the prosecution, ―is this in fact a

declaration against interest,‖ ―what kind of interest is it a declaration against,‖ ―is

it a declaration against penal interest‖ and ―what language indicates that to you.‖

The record also shows that, shortly before defendant‘s counsel made his

―submitted‖ comment, Ortiz‘s counsel stated, ―Even if [the prosecution] covered

these hurdles we are discussing we still have a section 352 problem at the trial he‘s

going to have to deal with.‖ On analogous facts, courts, including ours, have

declined to find forfeiture. (See People v. Collins (2010) 49 Cal.4th 175, 227 [no

forfeiture despite lack of objection to alleged prosecutorial misconduct where the

trial court interrupted the prosecutor immediately after the challenged remark,

75

disagreed with prosecution about the remarks propriety, and defense counsel

―submitted the matter after the colloquy between court and counsel‖]; People v.

Brooks, supra, 88 Cal.App.3d at p. 186 [no forfeiture of hearsay argument where

―the court called a hearing to consid

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