People v. Contreras

Filed 12/12/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S058019
v. )
)
GEORGE LOPEZ CONTRERAS, )
) Tulare County
Defendant and Appellant. ) Super. Ct. No. 37619
____________________________________)

A Tulare County jury convicted George Lopez Contreras (defendant) of
robbing and murdering a storeowner, Saleh Bin Hassan (Hassan). Defendant was
found guilty, as charged, of first degree felony murder (Pen. Code, § 187, subd.
(a))1, and of robbery (§ 211). The jury also sustained a special circumstance
allegation of murder in the commission of a robbery. (§ 190.2, subd. (a)(17)
(section 190.2(a)(17).) Defendant was found to have personally used a firearm
(shotgun) in committing each crime. (§§ 1192.7, subd. (c)(8), 1203.06, subd.
(a)(1), 12022.5, subd. (a).)
After a penalty trial, the same jurors who had decided guilt fixed the
penalty at death. The trial court denied defendant‟s automatic motion to modify

1 All further unlabeled statutory references are to the Penal Code except as
otherwise stated.

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the penalty verdict. (§ 190.4, subd. (e).) The court pronounced a death judgment
for the special circumstance murder. Sentence also was imposed for the robbery
count and related firearm-use finding. This appeal is automatic. (Cal. Const., art.
VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant‟s trial. The judgment will be
affirmed in its entirety.
I. GUILT PHASE EVIDENCE

A. Summary
Prosecution evidence showed that Hassan was killed on December 29,
1994, while working at the Casa Blanca Market, which he and his wife owned in
Farmersville, near Visalia. He had been shot twice, including once in the back.
His dead body was lying prone behind the counter. Nothing was missing from the
cash register. However, Hassan‟s wallet and handgun were gone. Defendant was
implicated in the crime along with three other men: Jose Gonzalez (Jose), Santos
Acevedo Pasillas (Santos), and Louis Phillip Fernandez, Jr. (Louis). Defendant
carried a shotgun into Hassan‟s store, and was identified as the actual killer. At
the outset, criminal charges were jointly filed against all four men. Severance was
later granted, and defendant was tried alone. The jury returned a guilty verdict, as
stated above.

B. Prosecution Case-in-Chief

1. Testimony of witnesses present during the capital crime
A key witness was Jose Guadalupe “Lupe” Valencia (Lupe). At the
relevant time, Lupe lived with both his sister, Yesenia Valencia, and her

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boyfriend, Jose. Jose introduced Lupe to defendant shortly before the capital
crime.2
In December 1994, when Lupe had nothing to do, he went with Jose and
defendant to pick up the other alleged accomplices, first Louis and then Santos.
When Louis joined the group, they used his car.
Lupe described an unusual event that happened when the group picked up
Santos that day. Defendant and Santos brought two “long rifles” from the house,
and set them in the back seat of Louis‟s car. Louis was the driver, and Lupe was
the front passenger. The other three men — defendant, Jose, and Santos — sat in
the back on top of the guns.
Louis drove the group to a store in Visalia. Lupe did not know the store‟s
name. However, he recalled that on the way there, defendant, Jose, and Santos put
on makeshift masks. These masks were made of small pieces of cloth, and
covered each man‟s face from the nose down. Because of the masks and guns,
Lupe assumed the group planned to rob the store. However, the car did not stop,
and no robbery occurred, because there were too many people nearby.
Lupe‟s account continued: Louis drove to another spot, the Casa Blanca
Market, in Farmersville. Santos said he wanted to see if anyone was inside the
store. With the mask hanging around his neck, he exited the car and pretended to
use the pay phone near the door. Santos returned to the car and said the store was
empty. Defendant and Jose each responded by grabbing a gun and going inside.

2 Lupe‟s age is not clear from the trial record. However, as shown below, the
defense elicited on cross-examination that Lupe attended high school starting at
some point before December 1994, when the capital crime occurred, and
continuing through September 1996, when he testified at trial.

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 About 20 seconds later, Lupe heard a loud gunshot. He testified that Santos
reentered the car after “running out saying that George [i.e., defendant] got shot.”
Louis made a U-turn, apparently preparing to drive away. At some point, both
Jose and defendant, who had not been shot, joined the trio already inside the car.
Lupe testified that Louis drove the group to Santos‟s home. On the way,
defendant said he would “never forget the smile on his face,” an apparent
reference to the victim, Hassan. Lupe recalled that defendant was smiling and in a
“happyish” mood. At Santos‟s house, Louis dropped off his passengers and left.
Later, defendant accompanied Lupe and Jose to their home.
At trial, Lupe described certain conversations that night which implicated
both Jose and defendant in the robbery murder. According to Jose, the clerk at the
store displayed a gun. Jose said he attempted to shoot the clerk but his gun
jammed. Jose stated that he tried breaking into the cash register, which did not
open, and he took the clerk‟s wallet. After giving this account, Jose showed the
wallet to Lupe.3
Defendant incriminated himself on the same occasion. First, he offered
Lupe a handgun, which Lupe did not take. Lupe identified the handgun that
belonged to the victim, Hassan, as the one defendant displayed.

3 Lupe‟s testimony about Jose was corroborated, in part, by Lupe‟s sister,
Yesenia. She testified that Jose was her boyfriend at the time of the capital crime
and at trial. They had a child together. According to Yesenia, Jose admitted that
he entered the Casa Blanca Market to commit a robbery, and that “they had killed
a man” inside. Jose denied having a weapon inside the store. Jose showed
Yesenia a wallet, and said it came from the clerk. The last time Yesenia saw the
wallet was when Jose was arrested in August 1995. The police took the wallet at
that time. Both Lupe and Yesenia identified the wallet seized by the police as the
one Jose had shown them and used after the capital crime.

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 Second, Lupe testified that defendant said that “when he walked in, he
pointed the gun at the clerk and the clerk pulled out a gun and [defendant] shot
him.” Defendant promised to “get” any informers. Lupe assumed that this threat
was aimed at him, and that it meant defendant would “shoot [him] or something.”
Like Lupe, another witness, Amanda Garcia, saw events outside the Casa
Blanca Market on the day of the capital crime. At 3:00 p.m., she drove from the
Kmart in Visalia towards Farmersville, where she lived. Around 3:30 p.m. or 4:00
p.m., Garcia encountered a car she identified as Louis‟s car blocking traffic
outside the market. She stopped five or six car lengths behind the car, and saw
two people inside — one in the driver‟s seat and the other in the backseat.
Suddenly, two other individuals rushed out of the store. One of them carried a
long object shaped like a gun. Each person leaving the store wore a dark mask
that covered the face except for the eyes. Garcia saw a similar disguise on one of
the occupants of the car in front of her, after that person turned around in her
direction. The pair on foot got into the waiting car, which sped away.

2. Testimony of Artero Vallejo, Jr., and supporting witnesses
In 1994, Artero Vallejo, Jr. (Vallejo) was friends with defendant and
Santos. Vallejo testified that on December 29, the day of the capital crime, he
worked his regular swing shift in Visalia, which began at 3:00 p.m. and ended
between 11:00 p.m. and 11:30 p.m. After work, Vallejo went to Santos‟s house.
Both defendant and Santos were there.4

4 Vallejo‟s supervisor, Walter Cypert, confirmed at trial that, on December
29, 1994, Vallejo punched his time card at 2:55 p.m., when his shift began, and
punched it again at 11:03 p.m., when the shift ended.

5
 Vallejo testified about incriminating statements Santos, defendant, and Jose
made the night of the capital crime. Santos told Vallejo that “[t]hey tried to pull a
little robbery,” that a “shooting” occurred, and that they got “nothing out of it.”
According to Vallejo, defendant volunteered that he “shot the clerk at the
store,” and that the shooting occurred as follows: Defendant held the shotgun in
one hand. The clerk offered no cash, and none could be found. Defendant warned
the clerk that he would be shot if he did anything. Defendant ended up shooting
him. Defendant then approached the wounded man and saw a smile on his face.
Defendant said, “I told you I was going to kill you.” Defendant kicked the clerk
and shot him a second time. Vallejo testified that, in recounting the crime,
defendant acted like “it was no big deal.” 5
During the same conversation, defendant admitted taking a .25-caliber
handgun from the store clerk. Defendant pulled the gun from his jacket pocket
and showed it to Vallejo. At trial, Vallejo identified Hassan‟s gun as the one that
defendant had displayed.6

5 Defense questioning revealed that Santos spoke to Vallejo a second time on
an uncertain date after December 29, 1994. Santos reportedly said during the
second conversation that defendant‟s infant son, Marco, was in the getaway car
with Louis outside the Casa Blanca Market. In addition, without identifying the
source of such information, Vallejo testified that he understood that Santos, not
Jose, wielded the .22-caliber rifle inside the store and watched the back area.
Either way, Vallejo consistently maintained at trial that, to his knowledge,
defendant shot Hassan twice with the shotgun.
6 The handgun that defendant showed to both Lupe and Vallejo was
discovered shortly after the capital crime in the possession of defendant‟s brother,
Fernando Contreras. Officer Jeff McIntosh of the Visalia Police Department
testified that on January 9, 1995, he encountered Fernando sitting in a stolen truck
“[r]ight next door” to his Visalia home. McIntosh detained Fernando, performed a
patdown search, and found a loaded .25-caliber handgun in his pants pocket. At
trial, McIntosh identified Hassan‟s handgun as the one he took from Fernando.
Two other witnesses, Police Officer Gary James and defendant‟s mother Maria
(footnote continued on next page)

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 Vallejo testified about other guns that linked defendant to the Casa Blanca
crimes, as follows: When defendant needed guns, he would borrow them from
Jesus Manuel Fernandez, or “Shorty” (Shorty). One or two weeks before the
capital crime, Vallejo went with defendant and Santos to Shorty‟s home and
borrowed a shotgun and a .22-caliber rifle. Later, on December 28, the night
before the murder, Vallejo was told by either defendant or Santos that defendant
had picked up the same guns at Shorty‟s house earlier that day.7 The purpose was
to “pull a little job,” which Vallejo understood to mean an armed robbery, and to
get some quick cash. Shorty‟s wife transferred the weapons at that time.8
Vallejo‟s testimony also encompassed his contact with the other
perpetrators, Jose and Louis, the night that Hassan was killed. Specifically, Jose
and Louis arrived at Santos‟s house while defendant, Santos, and Vallejo were
there. According to Vallejo, Jose discussed events inside the Casa Blanca Market.

(footnote continued from previous page)

Contreras Lopez, testified that in December 1994 and January 1995, defendant and
Fernando both lived with their mother at the same address — the one adjacent to
where Hassan‟s gun was recovered from Fernando.
7 Shorty testified at trial consistently with Vallejo‟s account, as follows:
Shorty and defendant were good friends who sometimes went hunting together
with Shorty‟s guns — a 12-gauge shotgun and a .22-caliber rifle. Other times,
Shorty loaned the guns to defendant for his own use. Defendant usually returned
them within two days. Around Christmas 1994, defendant and Santos borrowed
the shotgun and rifle. They picked them up from Shorty‟s wife with Shorty‟s
permission. But this time, unlike before, defendant did not return the weapons.
He told Shorty that Santos lost them.
8 Shorty‟s wife, Mariela Fernandez, testified that she once lent both of her
husband‟s long guns to defendant. Though she was uncertain of the date, the
transaction might have happened around November, a “long time” before trial.
Mrs. Fernandez recalled defendant being accompanied by at least one other
person, Santos.

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Jose told Vallejo that “George [i.e., defendant] had shot him [i.e., the clerk], that
he [apparently, Jose] couldn‟t find the money, and that he said he was looking all
over the place for the money.”
Vallejo further testified that all five men left Santos‟s house together that
night. After stopping briefly at Louis‟s house, the group went out to “celebrate”
the shooting. They visited a bar named The Break Room, and then attended a
party in Farmersville. Vallejo testified that he and his companions each drank
alcohol at both places, and that they also ingested “crank,” or methamphetamine,
at the party. The group eventually split up. Santos and Louis went home, and
defendant, Jose, and Vallejo attended a second party.
Vallejo denied being present at the Casa Blanca Market during the robbery
murder or otherwise having any involvement in the crime.

3. Postcrime investigation
At 3:27 p.m. on December 29, 1994, Deputy Scott O‟Neill of the Tulare
County Sheriff‟s Department was dispatched to the Casa Blanca Market. When he
arrived a few minutes later, he found Hassan, dead, behind the cash register. His
body was lying facedown on the floor. Based on witness statements at the scene,
O‟Neill estimated that the crime happened at 3:20 p.m.9
The autopsy physician, Dr. Leonard Miller, testified that Hassan sustained
two fatal gunshot wounds. One shot had penetrated the left side of the victim‟s

9 A sheriff‟s detective, James Schwabenland, was called to the crime scene at
3:40 p.m. on December 29, 1994. He took photographs and collected physical
evidence. Almost no useable fingerprints were found in the store — a scenario
that Schwabenland testified was common in public places. The only exceptions
were the victim‟s fingerprint, which was found on a cigarette pack, and another
unidentified fingerprint left on a soda can.

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abdomen. The other shot had entered his lower back, toward the right side of the
body. Each wound was inflicted with a shotgun.
Sheriff‟s Detective James Hilger investigated the Casa Blanca Market
crimes. They went unsolved for several months. The situation changed in August
1995. At that time, under circumstances discussed further below, Vallejo
voluntarily contacted law enforcement officials. He offered to provide
information about the killing and to identify the perpetrators. On August 11,
Detective Hilger tape-recorded Vallejo‟s statement. Defendant apparently was
arrested the same day.
A short time later, law enforcement officials contacted Lupe. For the first
time, he disclosed what he knew about the capital crime.10

C. Defense Case
Defendant called two witnesses who were outside the Casa Blanca Market
the day of the capital crime. Byron Northcutt, who lived one block away, testified
that he heard three gunshots, and saw a man with a rifle leave and then reenter the
store. Two men then left the store, led by the one with the rifle. They entered a
waiting car. Both wore hoods. Northcutt could not tell if the second man had a
gun. The second defense witness, Joel Mohr, was repairing a car 50 yards away
when he saw one man leave the store, yelling at someone inside to hurry. A
second man, wearing a hood, came out, stood in the driveway, and shot toward the
store. At most, Mohr heard two shots. He did not see whether the first man had a

10 In response to questioning by the prosecutor, Lupe testified that, before
trial, he signed an agreement with the district attorney‟s office to testify truthfully
in exchange for avoiding prosecution for his presence outside the Casa Blanca
Market at the time of the robbery murder.

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gun or hood. Mohr watched the men enter a car that had been parked near the pay
phone and that swung around to meet them. Two other men were in the front seat.
The defense also elicited testimony from Detective Hilger to the effect that
certain details in Vallejo‟s pretrial taped statement did not match his trial
testimony. For instance, in the police interview, Vallejo said that when he arrived
at Santos‟s house after work on the night of the capital crime, Jose was already
there with defendant and Santos. However, Vallejo testified at trial that he arrived
before both Jose and Louis.
The rest of the defense case consisted of an alibi for the Casa Blanca
crimes. It was offered by the following members of defendant‟s family: Claudia
Gutierrez Contreras, who was defendant‟s girlfriend in December 1994 and his
wife at the time of trial; Claudia‟s sisters, Erika Gutierrez and Patricia Murillo;
Patricia‟s husband, Raul Murillo; and Martina Gutierrez, the mother of Claudia,
Erika, and Patricia.
Together, these witnesses (whom we identify by their first names) testified
as follows: Defendant picked up Claudia after she left work at 3:36 p.m. on
December 29, 1994. After stopping at Claudia‟s house, defendant and Claudia
went to pick up Claudia‟s sister, Erika, at the accounting firm in Visalia for which
she worked. Defendant and Claudia — who had defendant‟s infant son, Marco, in
the car — waited 45 minutes in the parking lot until Erika left work.11

11 Defendant‟s son, Marco, turned one year old in mid-December 1994. His
mother is Arcadia Hernandez, with whom defendant was involved while
temporarily estranged from Claudia. Defendant and Arcadia have a second child
Jasmine, who was born in February 1995, shortly after the capital crime. In
December 1994 and January 1995, defendant lived in his mother‟s home, and
Arcadia lived elsewhere with her family. Members of defendant‟s family testified
that defendant had physical custody of Marco in December 1994, including the
(footnote continued on next page)

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 Meanwhile, Erika looked out of an office window and recognized two
couples in the parking lot: (1) defendant and Claudia, and (2) Patricia and Raul.
Each couple waved at the other. Patricia and Raul had arrived there around 4:00
p.m. to obtain a personal loan from a finance company in Erika‟s office
building.12 After Erika left work at 5:00 p.m., defendant drove Claudia and Erika
home. He did not leave their house before midnight.
Claudia testified that in January 1996, one year after the killing and five
months after defendant‟s arrest in August 1995, she found the written loan
agreement that Patricia and Raul had signed on December 29, 1994. This
information was passed along to Erika, Patricia, and Martina. These family
members testified that the contract helped them recall defendant‟s whereabouts
when it was signed.

D. Prosecution Rebuttal
The prosecution challenged the defense theory that, shortly after the Casa
Blanca Market crimes, defendant was in a car with his infant son, Marco, and with
Claudia, meeting Claudia‟s sister, Erika, after work. As noted, Marco‟s mother is
Arcadia Hernandez (Arcadia). Arcadia‟s sister, Elisabeth Hernandez (Elisabeth),
testified that throughout December 1994, Marco stayed with Arcadia and

(footnote continued from previous page)

week between Christmas and New Year‟s Day. The prosecution contested the
latter point on rebuttal, as discussed below.
12 Isaac Perez testified that he worked for the finance company from which
Patricia and Raul obtained their loan, and that he met with them the day they
signed the contract, December 29, 1994. On cross-examination, Perez noted that
no time of day appeared on the contract, and that he had no memory in that regard.
The loan signing could have occurred anytime in the afternoon, most likely
between 2:00 p.m. and 4:30 p.m.

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Elisabeth in their mother‟s home, and that he was not visited or taken by defendant
during this time.13

E. Defense Surrebuttal
Claudia (defendant‟s girlfriend in 1994 and his wife at trial) testified that a
photograph depicting defendant with her and Marco was taken around Christmas,
1994. Defendant‟s mother testified that Marco‟s head was shaved in December
1994, as depicted in the same photograph.14
II. PENALTY PHASE EVIDENCE

A. Prosecution Case

1. Victim Impact Evidence
Hassan‟s widow, Alya Saed Hassan, testified (through an interpreter) about
her husband‟s character and the effect of his death on loved ones. The couple had
been married for 30 years and had three children, the youngest of whom was 10
years old at the time of trial. Alya described her husband as irreplaceable — the
love of her life. He was exceptionally hardworking. For 16 years, he labored on
farms, and the couple saved money, in order to buy the Casa Blanca Market.
During the eight-year period in which they owned the store, Hassan worked on the
premises 15 hours a day. The family lived next door in a trailer. Alya regretted

13 The prosecution‟s rebuttal case also touched on the capital crime itself.
Detective Hilger testified that defense witness Byron Northcutt stated before trial
that each perpetrator may have had a gun when exiting the store. This evidence
(1) supported the two-gun scenario described by Lupe and Vallejo in the
prosecution‟s case-in-chief, and (2) undermined Northcutt‟s testimony for the
defense that he could not tell if there was more than one rifle.
14 Arcadia, Marco‟s mother, was called as the last defense witness at the guilt
phase. Contrary to defense counsel‟s apparent expectation, Arcadia testified that
defendant did not take Marco from her custody in December 1994. As noted,
Arcadia‟s sister Elisabeth gave a similar account in the prosecution‟s rebuttal case.

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having to start using welfare benefits after Hassan‟s death. The family could not
afford mental health counseling to handle the loss.

2. Unadjudicated Assault with a Firearm
The prosecution presented evidence that, on August 29, 1994, four months
before the capital crime, defendant shot at a car, knowing that his own son, Marco,
was one of several people inside. The incident began when Arcadia came home
from work and discovered that defendant had picked up Marco while he was being
watched by Arcadia‟s sisters, Elisabeth and Maria Torres (Maria). Six people
drove in a Thunderbird to retrieve Marco from defendant‟s mother‟s home, where
defendant lived. They were Arcadia, Elisabeth, Maria, Maria‟s husband Ramon,
Ramon‟s brother Angel, and Maria and Ramon‟s infant son.
According to all three witnesses who described the incident at trial —
Maria, Elisabeth, and Ramon — Arcadia went to defendant‟s door, and the two
began arguing. The couple then sat down on a bench. Meanwhile, Maria and
Elisabeth exited the car, took Marco from the house, and got into the car with him.
Maria testified that defendant may have momentarily retrieved Marco during this
process, but Elisabeth had no such recollection. At some point, defendant asked
Ramon to identify the driver, Angel. Arcadia reentered the car last. It then
contained the six original occupants plus Marco.
All three witnesses gave similar, though not identical, accounts of what
happened next. Maria heard multiple shots, and turned to see defendant holding a
gun and “pointing to the car” at a downward angle. For reasons she did not
explain, Maria believed defendant may have shot up into the air first before firing
at the car. Elisabeth, in turn, saw defendant pull an object out of his pants, and
heard several gunshots. Though Elisabeth did not see a gun or the direction in
which it was aimed, she knew defendant was the shooter because no one else was

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nearby. Ramon looked back out of the car window, and saw defendant get up
from the bench and approach the car from behind. Defendant then took out a
handgun and “pointed at the car.” Standing seven or eight feet away, defendant
fired three or four shots. Arcadia screamed, and the Thunderbird sped away.15
Angel, the driver, headed directly to a store, where the police were called.
Officer James Rapozo of the Visalia Police Department arrived at the scene of the
shooting around 10:00 p.m., soon after the shooting occurred. The victims
described a custody dispute in which the child was retrieved from the father. The
officer testified that he found two expended shells from a .380-caliber handgun in
the road. He also saw two bullet holes in a wall nearby. One of them was two feet
from the ground. In the dark, neither Officer Rapozo nor anyone in the
Thunderbird saw damage to the car. The next day, however, Maria and Ramon
saw a bullet hole in the rear spoiler.

B. Defense Case
Defendant‟s older sister, Angelica Torres, provided a substantial amount of
background information, as follows: Defendant‟s parents and all 10 of their
children, including defendant (the third youngest child), were natives of Mexico.
When they wed, defendant‟s father was 18 years old and his mother was 13 years
old. They remained married at the time of trial.
Angelica recalled that, in Mexico, the family lived a “normal” life in a
small town. They were neither rich nor poor. Both parents were hardworking.
Defendant‟s father was the main provider, but he could not support the family
alone. Defendant‟s mother was a seamstress. She cared for the children at home.

15 Maria was not asked to describe the weapon defendant used. In passing,
however, she called it a “shotgun.” Elisabeth could not see what kind of gun it
was. Ramon saw a handgun, not a long gun.

14
 According to Angelica, she and defendant had a close emotional bond. She
was 10 years older, and helped care for him as a child. When defendant was four
years old and Angelica was 14 years old, she moved from Mexico to Los Angeles.
Angelica stayed in touch with defendant and the rest of the family, visiting them
often.
Angelica continued: When defendant was six or seven, the family moved
to Visalia, where they bought their own home and have lived ever since. Both
parents continued to support the family. Angelica, who moved back and forth
between Los Angeles and Visalia, remained close to defendant. She eventually
bought a home next door to her parents. At one point, Angelica, her mother, and
other female relatives worked in the same factory. The extended family was both
large and close.
At trial, Angelica acknowledged that her parents‟ marriage was not strife
free. A few days before defendant was born in 1974, defendant‟s father beat his
mother — a fact that upset defendant when he learned about it several years later.
Angelica insisted defendant was a normal, healthy, and playful child. She
described her mother as affectionate and gentle, and her father as emotionally
distant from all of his children. The parents argued over little things. Angelica
learned from her siblings that, once or twice, while she was not present or living at
home, her father hit her mother.
Angelica testified that the family shared a strong belief that defendant did
not commit the capital crime. Defendant‟s mother and other relatives helped care
for his two children after his arrest. Their mother, Arcadia, was young and

15
reportedly distracted from her parental duties. According to Angelica, defendant
was a proud and devoted father.16
Defendant‟s wife Claudia testified that she had known defendant since the
eighth grade. She would love, support, and communicate with him even if he
spent his entire life in prison. She planned to maintain a relationship with
defendant‟s children and to help them stay close to their father. When asked how
she would feel if defendant were sentenced to death, Claudia replied that “they
could put me to death, too.”
The defense also called Bill Wittman, who was elected Sheriff of Tulare
County 18 months before he appeared at trial. Wittman testified that he had
known defendant for at least 10 years ending in 1993, before the capital crime.
Defendant was a “good kid” who participated in recreational sports at a
community center that Wittman helped build and run. Wittman occasionally
visited defendant‟s family in their home near the center. Except for defendant‟s
older brother, Fernando, who was a bully with an arrest record, other family
members seemed warm and hospitable. Once, defendant refused payment for
work he and other children had performed on Wittman‟s ranch.
Louisa Duarte had lived next door to defendant‟s family since they moved
from Mexico to Visalia. She testified that defendant and his siblings were well-

16 On cross-examination, Angelica acknowledged that all of her siblings,
including defendant, had volatile temperaments. For the most part, however, they
were a productive and law-abiding group. At the time of trial, Angelica was a
college student who worked for the Federal Aviation Administration. One sister,
Gloria, had held the same job since she came to the United States, and another
sister, Erma, was a housewife and former factory worker. Two other sisters,
Maria Alejandra and Monica, were medical assistants studying nursing in college.
Their brother, Pablo, was married and employed in the construction industry.

16
behaved and respectful. Defendant practiced speaking English, his second
language, with Duarte. He always had a “special smile.”

C. Prosecution Rebuttal
Arcadia, the mother of defendant‟s children, testified that defendant had
seen his daughter, Jasmine, only twice since her birth. He provided no financial
support for either Jasmine or her brother, Marco.
Jerry Speck supervised defendant when he was on juvenile probation for
possessing a pellet gun at school. Speck testified that in October 1991, defendant
declined Speck‟s request to perform court-ordered community service. Defendant
became loud and defiant and refused to calm down. Speck arrested him and took
him to juvenile hall. On cross-examination, Speck disclosed that defendant was
pleasant when he was not angry, and that he had trouble appreciating the
consequences of his actions.

D. Defense Surrebuttal
Victor De Vaca was a teacher who met defendant when he attended middle
school. De Vaca testified that he once drove defendant to a special event where
defendant received an award that the teachers gave to certain students. Defendant
was a typical student — “all boy” — in De Vaca‟s view. On cross-examination,
De Vaca noted that defendant had participated in a few fights at school, and that
De Vaca had driven him home afterwards.
III. JURY SELECTION ISSUES
Defendant maintains that, for various reasons, the trial court failed to
explain to the prospective jurors certain general legal principles applicable in all
criminal trials. He contends the omission violated his federal and state
constitutional rights to due process, an impartial jury, equal protection, effective
representation, and a reliable capital determination. (U.S. Const., 5th, 6th, 8th &

17
14 Amends.; Cal. Const., art. I, §§ 16, 17.) A related statutory claim is also made.
(Code Civ. Proc., § 223.) No error occurred.17

A. Background
The jury selection process took place over a three-week period in August
and September 1996. The trial court first read the information to all prospective
jurors, and emphasized that it involved “mere allegation.”
The court then explained the bifurcated nature of the trial, to wit, that jurors
would decide guilt of the charged crimes in the first phase, and that only in the
event of a first degree murder conviction and a special circumstance finding would
a penalty phase occur. The court identified the death penalty as one possible
sentencing choice. As a time estimate, the court predicted (accurately) that, at
most, the guilt trial would last one to two weeks, and that the pretrial jury selection
process could take “a little bit longer.”
Prospective jurors were divided into two panels. In the presence of both
counsel, the court questioned and excused numerous candidates on hardship

17 As to this and virtually all other appellate claims, defendant contends that
an issue raised and decided in the trial court resulted in constitutional violations,
but he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court‟s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the Constitution.
To that extent, defendant‟s new constitutional arguments are not forfeited on
appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying
People v. Partida (2005) 37 Cal.4th 428, 433-439.) In the latter case, no separate
constitutional discussion is required or provided where rejection of a claim that the
trial court erred on the issue presented to that court necessarily leads to rejection of
any constitutional theory or “gloss” raised for the first time here.

18
grounds. Counsel jointly stipulated to many of these excusals. The court
estimated that as many as 137 people “passed hardship.”
Next, the trial court described the jury selection process to each panel of
prospective jurors. First, the court discussed the need for written questionnaires
on a broad range of topics. The court also announced its plan to examine each
person on an individual basis, outside the presence of other prospective jurors. In
doing so, the court sought to promote candor and save time.
Second, the trial court told all prospective jurors that the death penalty
would be explored during each personal sequestered voir dire. The court further
stated that, during these sessions, both the court and counsel (i.e., “myself and the
attorneys”) would inquire about “additional areas concerning [jurors‟] ability to
be fair and impartial.” Counsel would receive copies of the completed
questionnaires before voir dire in order to study them and prepare questions.
Third, the trial court advised both groups of prospective jurors about the
standard of proof at the guilt phase. The court said, “If the jury is convinced
beyond a reasonable doubt the defendant is guilty of murder in the first degree,
and that the special circumstance of murder in the commission of a robbery is true,
then the trial will go into a second phase.” Each panel was also told that both
parties were entitled to a fair and impartial jury, and that jurors must “abide by the
law” set forth in the instructions.
Following these advisements, the trial court asked prospective jurors to
complete a lengthy questionnaire, and to sign it under penalty of perjury. The
written questions concerned such topics as personal background, views on capital
punishment, attitudes toward the criminal justice system, and opinions about
defendant and the charged crimes.
On the latter topic, question No. 64(a) asked whether, for any reason, the
prospective juror had “formed or expressed any opinion as to the guilt or

19
innocence” of defendant, and to explain any “yes” answer. Question No. 76
(echoed in question No. 85) addressed the related issue whether the person
harbored any “bias” or “prejudice” toward defendant that would affect the ability
to render a decision “under the law.” Question No. 79 alluded, in turn, to certain
controlling legal principles — the defendant‟s privilege not to testify, the
presumption of innocence, and the People‟s burden of proof. Thus, prospective
jurors were asked to explain whether they “disagree[d] with the law” or could not
“follow the law” allowing the defendant to remain silent at trial. A similar
explanation was sought as to any belief that a criminal defendant “should have to
prove he or she is not guilty,” as opposed to the People having to prove guilt.
Guided by the handwritten answers to such questions, the trial court and
counsel jointly conducted individual sequestered examinations of all prospective
jurors. Each interview had a similar format, as follows:
First, the trial court almost always began by repeating its advisement about
application of the reasonable doubt standard at the guilt phase, and/or by
emphasizing that the People bore such burden of proof. Otherwise, except in a
few cases not involving persons who later served as actual or alternate jurors, any
deviation from this general pattern involved instances in which (1) defense
counsel advised prospective jurors about the standard and burden of proof at the
guilt phase, (2) the prospective juror volunteered his or her understanding of such
principles, or (3) defense counsel summarily exercised or agreed to a challenge for
cause based on some patently disqualifying factor (e.g., automatic preference as to
penalty or inability to attend trial).
Second, during the interviews, the trial court inquired about the person‟s
views on the death penalty and on life imprisonment without the possibility of
parole. Both counsel routinely asked follow-up questions on sentencing.

20
 Third, as previously authorized by the court, counsel on both sides inquired
during individual sequestered voir dire, often vigorously, about other factors
bearing on the prospective juror‟s ability and willingness to serve in a fair and
impartial manner. Many exchanges concerned the meaning of a criminal
defendant‟s right to a fair determination of guilt beyond a reasonable doubt,
including any knowledge or experience gained during prior jury service in
criminal trials. Other questions concerned whether the person harbored any bias
against the defense, or could follow the law and instructions.
During this process, the trial court granted numerous challenges for cause
by the parties. Apparently, 81 prospective jurors remained in the pool afterwards
— almost 60 fewer persons than before the process began.
Defense counsel then asked whether the trial court intended to conduct “any
so-called general type voir dire in the sense of jurors that have any problems with
reasonable doubt or the burden of proof.” Counsel suggested that prospective
jurors be assembled “in the box” for this purpose. The court declined to do so,
saying “[w]e did a voir dire. I don‟t know why I need to do any more.” When the
court sought to clarify the defense request in any event, counsel said, “We never
had a question that really has to do with just jurors[‟] understanding and
acceptance of the burden of proof, the presumption of innocence. Some of this
general stuff that we always do.”
In response, the court offered to read CALJIC No. 0.50, a standard pretrial
instruction on the basic functions, duties, and conduct of jurors. Counsel agreed.
He said, “[f]ine with me,” “I don‟t have any problem with that,” and “I don‟t want
to tie up a lot of time.” The court said it would “go ahead and do it,” and would

21
ensure that no one had “any problem[ ]” with “following those laws.” Counsel did
not raise the issue again.18
One week later, at the next court session, the court assembled the
prospective jurors to allow the parties to exercise peremptory challenges. Before
this process began, the court instructed the jury with the legal principles to which
defense counsel had referred. Specifically, prospective jurors were reminded of
the nature of the charges, and were repeatedly told that the People bore the burden
of proving guilt beyond a reasonable doubt. The court dismissed any suggestion
that defendant “need[ed] to prove his innocence,” and reaffirmed that defendant
“ha[d] no burden to prove anything.”
Ultimately, in selecting the actual jury, the prosecution exercised nine
peremptory challenges and the defense exercised seven peremptory challenges.
Each side exercised three peremptory challenges against potential alternate
jurors.19 After the actual and alternate jurors were sworn, and before opening
statements began, the court read CALJIC No. 0.50, as it had promised to do.

B. Analysis
Defendant‟s main claim is that the trial court essentially had a sua sponte
duty to question every prospective juror either individually or collectively about

18 The version of CALJIC No. 0.50 ultimately given at defendant‟s trial
described the nature of the factfinding function, the duty to accept and follow the
law and instructions whether or not the juror agrees with them, the need for a
verdict free of bias and outside influence, the definition of evidence, the sanctity
of the deliberative process, and the right of jurors to take written notes and request
a read-back of testimony.
19 Now, as at the time of defendant‟s trial, Code of Civil Procedure section
231, subdivision (a), states in pertinent part: “In criminal cases, if the offense
charged is punishable with death, or with imprisonment in the state prison for life,
the defendant is entitled to 20 and the people to 20 peremptory challenges.”

22
general principles of law concerning both the standard and burden of proof, and
the presumption of innocence. Having not done so, the court allegedly deprived
defendant of the opportunity to identify and excuse persons who were biased
against him or unable to follow such laws. We disagree.
There is no constitutional right to voir dire per se. Nor is there any
constitutional right to conduct voir dire in a particular manner. (People v.
Robinson (2005) 37 Cal.4th 592, 613.) Rather, the voir dire process serves as a
means of implementing the defendant‟s Sixth Amendment right to an impartial
jury. (Ibid.; accord, People v. Fuiava (2012) 53 Cal.4th 622, 654 (Fuiava).)
Consistent with applicable statutory law,20 the trial court has wide latitude
to decide the questions to be asked on voir dire (People v. Rogers (2009) 46
Cal.4th 1136, 1149), and to select the format in which such questioning occurs.
(See Stitely, supra, 35 Cal.4th 514, 536-539.) The court likewise has broad
discretion to contain voir dire within reasonable limits. (People v. Zambrano
(2007) 41 Cal.4th 1082, 1120.) Unless the voir dire “is so inadequate that the
reviewing court can say that the resulting trial was fundamentally unfair, the

20 At the time of trial, Code of Civil Procedure section 223 stated in pertinent
part: “In a criminal case, the court shall conduct the examination of prospective
jurors. However, the court may permit the parties, upon a showing of good cause,
to supplement the examination by such further inquiry as it deems proper, or shall
itself submit to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. Voir dire of any prospective jurors
shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.” (Added by Prop. 115, as approved by
voters, Primary Elec. (June 5, 1990).) Effective January 1, 2001, the statute was
amended to give counsel for each party an expanded, though not unlimited, right
to examine prospective jurors through direct oral questioning. However, the
provision regarding group voir dire and the limitation thereon remained
unchanged. (Code Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § 1,
p. 2216; see People v. Stitley (2005) 35 Cal.4th 514, 536-537 & fn. 11 (Stitley).)

23
manner in which voir dire is conducted is not a basis for reversal.” (People v. Holt
(1997) 15 Cal.4th 619, 661 (Holt); accord, Fuiava, supra, 53 Cal.4th 622, 654;
People v. Bolden (2002) 29 Cal.4th 515, 538 (Bolden).) We know of no authority,
and defendant cites none, suggesting that group voir dire is necessarily required,
or that the trial court must always question every prospective juror either alone, or
as part of a group, about general legal principles, including those at issue here.
In applying the foregoing authorities, we note as a threshold matter that
defendant has not properly preserved his challenge to the fairness and adequacy of
voir dire on reasonable doubt and similar concerns. Trial counsel requested a
group voir dire on such general law after individual sequestered examinations had
occurred and challenges for cause had been exercised. The court made a
preliminary ruling that the individualized voir dire it had already conducted was
sufficient, and that a resumption of the process in any form was unnecessary and
unduly time consuming. After briefly discussing the matter further, and in an
apparent abundance of caution, the court decided to give further instruction on the
matter. Counsel did not object to this ruling on any ground. Instead, he embraced
the court‟s instructional approach and stopped pursuing additional voir dire.
Under these circumstances, defendant has forfeited his claim that the trial
court‟s rejection of his request for additional voir dire on certain issues, and its
related decision to instruct jurors on their proper role at trial, was erroneous or
incomplete. Regarding the alleged shortcoming in voir dire, defendant could not
merely “suggest that particular questions be asked, and then silently stand by when
the trial court suggests and subsequently takes a different course — a trial court
reasonably could view such silence as constituting assent to the court‟s approach.”
(Fuiava, supra, 53 Cal.4th 622, 653 [defendant forfeited claim that trial court
should have asked questions he had requested about self-defense in the context of

24
the particular case, where defendant did not object when the court instead asked
prospective jurors about generally following the law on self-defense].)21
Defendant‟s substantive claim also fails on the merits. The trial court did
not conduct voir dire alone, devoid of any meaningful participation by counsel.
Rather, both parties had ample opportunity to probe for hidden bias and to explore
any other factor bearing on juror impartiality. (See Holt, supra, 15 Cal.4th 619,
661.) Counsel took full advantage of the situation. Indeed, defendant admits in
his opening brief on appeal that the court “did not restrict” counsel on voir dire.
(See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47.)
Moreover, viewed as a whole, the oral examination and the questionnaires
on which it was based covered the general principles of law that defendant now
claims were not adequately explored on voir dire. Before completing the
questionnaires, all prospective jurors were told that the reasonable doubt standard
applied to a determination of guilt of the charged crimes, and that they must
follow the law as instructed by the court. Against this backdrop, the questionnaire
asked — albeit, in lay terms — about the presumption of innocence (i.e., whether

21 The Attorney General argues in passing that defendant‟s claim of
inadequate voir dire was forfeited primarily because he failed to challenge biased
jurors for cause or to exhaust his peremptory challenges. (Compare People v.
Hart (1999) 20 Cal.4th 546, 589 [holding defendant cannot complain on appeal
that the jury included specific unacceptable persons where he failed to challenge
them for cause, failed to exhaust his peremptory challenges, and expressed
satisfaction with the jury as impaneled] with Bolden, supra, 29 Cal.4th 515, 537-
538 [holding failure to exhaust peremptory challenges does not forfeit complaint
about the adequacy of general group voir dire because defendant may have been
denied information needed to intelligently exercise such challenges].) In light of
the alternative analysis set forth above, we need not, and do not, address the
Attorney General‟s particular theory of forfeiture here.

25
the prospective juror had formed any bias or prejudged guilt) and about the
People‟s burden of proof (i.e., whether defendant must prove his own innocence).
Armed with the questionnaires, and guided by relevant written answers,
both the court and counsel questioned prospective jurors about their views on the
reasonable doubt standard, the burden of proof, and the presumption of innocence.
The court began most exchanges by repeating its advisement on reasonable doubt.
Where necessary or advisable, the court and counsel also explored whether
prospective jurors could give defendant the benefit of these principles, or whether
some bias or other factor would prevent them from following the law and
instructions in this regard. In short, nothing prevented defendant from identifying
and removing prospective jurors who did not understand or accept the general
principles of law involved here.
Taking a different tack, defendant next contends that voir dire was
prejudicially incomplete insofar as the trial court did not ask certain questions in
the exact form recommended by the Judicial Council in the California Standards
of Judicial Administration (Standards). (See, e.g., stds. 4.30(b)(13) [whether
prospective juror can ignore everything heard as a juror in a prior criminal case
and decide the present case based solely on the evidence and applicable law],
4.30(b)(14) [whether prospective juror can ignore instructions received as a juror
in a prior civil case, and apply the different rules which govern the trial of criminal
cases, including the People‟s burden to prove guilt beyond a reasonable doubt], as
renumbered and amended eff. Jan. 1, 2007.)
Contrary to what defendant implies, any trial court decision declining to use
the Standards verbatim does not necessarily mean that voir dire failed to expose
prospective jurors who were biased or unable to follow the law. (See, e.g., People
v. Lopez (2013) 56 Cal.4th 1028, 1046; Bolden, supra, 29 Cal.4th 515, 538.) Nor
does any technical deviation from the Standards excuse a reviewing court from

26
examining “ „the entire voir dire‟ ” to determine whether it was sufficient to secure
an impartial jury. (Lopez, supra, 56 Cal.4th at p. 1046, quoting Holt, supra, 15
Cal.4th 619, 661.)
As we have explained, our review shows that prospective jurors were
informed before the exercise of challenges for cause about the need to apply the
reasonable doubt standard and to follow the law and instructions. Later, at the
start of the peremptory challenge phase, the court gave another reasonable doubt
instruction that included additional principles about the People‟s burden of proof
and the presumption of innocence. In the interval between these two events, the
trial court instructed and questioned specific jurors on all of these principles of
law. Counsel on both sides freely asked their own informed questions on the
topic. Thus, regarding the Standards, “all appropriate areas of inquiry [were]
covered in an appropriate manner.” (Holt, supra, 15 Cal.4th 619, 661.)
Finally, defendant argues that voir dire concerning reasonable doubt and
related principles was constitutionally deficient because defense counsel did not
know until after all prospective jurors had been examined alone that no general
group voir dire was planned. Citing no authority, defendant insists the trial court
was required to specifically advise counsel of this procedure before jury selection
began to ensure counsel examined each prospective juror about any biases he or
she might harbor toward “specific legal doctrines.” No error occurred.
Contrary to what defendant suggests, defense counsel could not reasonably
assume that group voir dire would inevitably occur or that it was necessary in light
of jury selection procedures otherwise in place. Counsel presumably was
competent and aware of the trial court‟s authority to decide the manner in which
questioning would occur, including the option to forgo general voir dire in open
court. (See Holt, supra, 15 Cal.4th 619, 704 [assuming trial counsel had sound
basis on which to conduct voir dire and ensure bias-free jury absent contrary

27
evidence in record].) To this end, the trial court announced twice, before
conducting any individual sequestered voir dire, that the private interviews would
include, but would not be limited to, the death penalty. In fact, the court made
clear that “additional areas” of potential bias would be explored, and that both the
court and counsel would perform that task.
It follows that defense counsel was responsible during each individual
sequestered session for being informed about any critical topic overlooked by the
trial court, and for making tactical decisions on how best to respond. Counsel was
on notice that he could examine prospective jurors one-on-one about their
willingness and ability to apply reasonable doubt and related principles in
determining guilt. As noted above, we presume counsel was competent to perform
this task. Accordingly, the trial court had no constitutional or other duty to advise
counsel about when or how to ask questions on certain general legal principles, or
about individual sequestered voir dire constituting his sole opportunity to do so.
For all the foregoing reasons, we reject defendant‟s claim that the trial court
conducted an inadequate voir dire, or that reversible error otherwise occurred.
IV. GUILT AND SPECIAL CIRCUMSTANCE ISSUES

A. Relationship between Charge and Conviction of Murder
Defendant observes that the information charged him with “MURDER, in
violation of PENAL CODE SECTION 187(a),” and alleged that he acted
“willfully, unlawfully, and with malice aforethought.” According to defendant, he
stood accused only of “second degree malice murder,” and could not be convicted
of first degree felony murder, as set forth in the instructions and verdict. Insisting
he was never properly charged with the latter crime under section 189, defendant
asks us to conclude that the trial court exceeded its jurisdiction and violated his
federal and state constitutional rights to due process and a fair trial, trial by jury,

28
and a reliable guilt determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, 15-17.)22
Similar claims — whether framed in terms of a lack of jurisdiction,
inadequate notice, erroneous instruction, insufficient proof, or the absence of jury
unanimity — have been rejected before. As defendant recognizes, our cases have
long made clear that an accusatory pleading charging malice murder supports
conviction of first degree murder on a felony-murder theory. Malice murder and
felony murder are two forms of the single statutory offense of murder. Thus, a
charge of murder not specifying the degree is sufficient to charge murder in any
degree. The information also need not specify the theory of murder on which the
prosecution relies at trial. (See People v. Jones (2013) 57 Cal.4th 899, 968-969);
People v. Abel (2012) 53 Cal.4th 891, 937 (Abel); People v. Moore (2011) 51
Cal.4th 386, 412-413 (Moore); People v. Geier (2007) 41 Cal.4th 555, 591;
People v. Hughes (2002) 27 Cal.4th 287, 368-369; People v. Gallego (1990) 52
Cal.3d 115, 188-189; People v. Murtishaw (1981) 29 Cal.3d 733, 750-751 &
fn. 11; In re Walker (1974) 10 Cal.3d 764, 781; People v. Golston (1962) 58
Cal.2d 535, 539; People v. Witt (1915) 170 Cal. 104, 107-108.)
Defendant counters that insofar as we have recognized a single statutory
offense of first degree murder, the only charging statute applicable here was
section 189. This assertion stems solely from People v. Dillon (1983) 34 Cal.3d
441. In pertinent part, Dillon described section 189 “as a statutory enactment of
the first degree felony-murder rule in California.” (Dillon at p. 472.)

22 As pertinent here, section 187, subdivision (a), defines murder as “the
unlawful killing of a human being . . . with malice aforethought.” Section 189
defines first degree murder to include, among other things, murder “which is
committed in the perpetration of, or attempt to perpetrate, . . . robbery.”

29
 However, in People v. Harris (2008) 43 Cal.4th 1269 (Harris), we rejected
a similar argument, as follows: “Dillon made it clear that section 189 serves both
a degree fixing function and the function of establishing the offense of first degree
felony murder. [Citation.] It defines second degree murder as well as first degree
murder. Section 187 also includes both degrees of murder in a more general
formulation.” (Id. at p. 1295.) As in Harris, the section 187 charge brought here
supported a murder conviction in any degree, including first degree felony murder.
Nothing in Dillon compels a different result. We decline to reconsider this view.
In his final challenge to the murder charge, defendant argues that the
foregoing principles and authorities have been abrogated by Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi). The sole support for this claim is a
statement in Apprendi that “ „any fact (other than prior conviction) that increases
the maximum penalty for a crime must be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt.‟ ” (Id. at p. 476, italics added.) The
“fact” defendant claims was fatally omitted from murder as charged in the
information here was his alleged commission of the serious felony (robbery) on
which the first degree felony-murder verdict was ultimately based.
Contrary to what defendant implies, the Apprendi court expressly declined
to address the constitutional implications, if any, of omitting sentencing factors
from accusatory pleadings. (Apprendi, supra, 530 U.S. 466, 477, fn. 3 [noting that
no “indictment question” was properly presented or actually addressed in the
case].) Absent any authority compelling a different result, we conclude here, as in
other cases, that defendant‟s reliance on Apprendi is misplaced. (See Abel, supra,
53 Cal.4th 891, 938; People v. Famalaro (2011) 52 Cal.4th 1, 37 (Famalaro);
Moore, supra, 51 Cal.4th 386, 413; Harris, supra, 43 Cal.4th 1269, 1295.)
In particular, Apprendi‟s core reasoning is that every factual finding (other
than the fact of a prior conviction) required by law in order to increase the penalty

30
beyond the prescribed statutory maximum for the offense is the “functional
equivalent” for constitutional purposes of an element of a greater offense.
(Apprendi, supra, 530 U.S. at p. 494, fn. 19.) Hence, consistent with due process
and jury trial guarantees, sentencing factors having such an “ „elemental‟ nature”
must be submitted to a jury and proved by the State beyond a reasonable doubt.
(Id. at p. 494; see People v. Anderson (2009) 47 Cal.4th 92, 105-106, 116.)
In light of the high court‟s “narrow” holding (Apprendi, supra, 530 U.S.
466, 474), which focuses on facts that must be proved to, and found by, a jury,
“[i]t is highly doubtful that Apprendi has any effect whatever on pleading
requirements” (Famalaro, supra, 52 Cal.4th at p. 37). In other words, Apprendi‟s
requirements for how element-like sentencing factors must be proved and found
create no “new notice requirements for alternative theories of a substantive
offense such as a theory of first degree murder.” (Abel, supra, 53 Cal.4th at
p. 938; accord, Moore, supra, 51 Cal.4th at p. 413.)
Thus, this court does not violate Apprendi by continuing to apply the
traditional California rule that a murder charge under section 187 places the
defense on notice of, and allows trial and conviction on, all degrees and theories of
murder, including first degree felony murder under section 189. Defendant‟s
opposing view is unfounded. We reject it here.

B. Cross-examination of Lupe
Defendant argues that, for several reasons, the trial court erred in
preventing him from admitting Lupe‟s report cards to contradict testimony elicited
on cross-examination about Lupe‟s performance in high school after the capital
crime. He alleges the court‟s ruling violated his federal constitutional rights to due
process, to confrontation and compulsory process, and to a reliable capital
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.)

31
 1. Background
As noted, Lupe testified on direct examination about defendant‟s statement
promising to “get” anyone who spoke about the robbery murder. The implication,
which redirect examination confirmed, was that Lupe felt personally threatened by
defendant, and that he (Lupe) believed he would be harmed or killed if he made
any incriminating statements. The prosecution elicited no other information about
how the capital crime may have affected Lupe‟s daily life at any point after
December 29, 1994, the day the crime occurred.
With no initial objection from the prosecutor, defense counsel raised the
latter issue near the end of Lupe‟s cross-examination. Specifically, Lupe testified
that he had read in the newspaper the day after the robbery murder that someone
died in the store. Despite being scared and upset, Lupe did not report the incident
to the police or to any other authority figure. Lupe testified, however, that once he
was contacted by the police in August 1995, he had no difficulty cooperating with
them and disclosing what he knew.
In the course of this exchange, defense counsel inquired about Lupe‟s
performance in high school during the same time period. When asked whether he
did “better or worse” in school after the capital crime, Lupe replied, “I don‟t
know, a little worse.” He testified that as time passed, he felt no increased
pressure to report the capital crime. Indeed, Lupe found that he “could
concentrate more” a couple of months after returning to school in January 1995.
He explained that he did not forget about the crime, but that the negative feelings
did not bother him as much. Lupe further testified on cross-examination that, after
first speaking with the police in August 1995, he felt relieved and “could
concentrate better.”
At this point in the process, defense counsel asked whether Lupe had
received any high school report cards, a question answered in the affirmative. The

32
prosecutor requested a sidebar conference, and objected on relevance grounds.
Defense counsel explained that, contrary to what Lupe had testified, his grades
“went up” when he returned to school in January 1995, such that his existing 1.0
grade point average rose somewhat to “all Cs and passing.” Counsel contrasted
this initial upward trend with Lupe‟s grades after he spoke to the police in August
1995. That semester, according to counsel, Lupe‟s grades did not improve as
Lupe had implied they did. Rather, they “drop[ped] way down, worse than he had
ever done He had some D-minuses and Cs.”
Consistent with the prosecutor‟s view, the trial court declined to allow Lupe
to be cross-examined about his report cards. Lupe‟s grades had no logical bearing,
the court said, on whether Lupe felt good or bad because of the capital crime. The
court viewed any inferences raised in that regard as improper impeachment on a
collateral matter, saying “[i]t is way, way out.”
Cross-examination resumed. Defense counsel raised the possibility that
Lupe was not telling the truth regarding his feelings about the capital crime and
cooperating with the police. First, Lupe was asked whether, between the time the
capital crime occurred in December 1994, and the time Lupe spoke to the police in
August 1995, he was not actually bothered or distressed because he was “not
really at the little market the day that the incident happened.” The answer was
“[n]o.” In a follow-up question, counsel asked whether, from the time Lupe spoke
to the police about the capital crime through the next semester in school, he was
actually bothered and distressed because he had “claimed to be involved in that
incident when [he] really [wasn‟t].” Again, Lupe answered “[n]o.” This line of
inquiry ended when Lupe denied implicating defendant in the shooting in order to
shift blame away from Jose, defendant‟s alleged accomplice and the boyfriend of
Lupe‟s sister, Yesenia.

33
 Following both redirect and recross examination, and outside the presence
of the jury, defense counsel renewed his request to admit the report cards to
impeach Lupe‟s testimony about his school performance and about his feelings
regarding the capital crime. Counsel claimed it was “common knowledge that
young people do have problems with school” and that poor grades show “when a
problem‟s going on in their life.” All counsel sought to do, he said, was to ask
Lupe about the apparent discrepancy between his testimony concerning the effect
of his feelings on his school performance on the one hand, and his grades as
reflected in his report cards on the other hand. In the alternative, counsel was
willing to offer only the report cards themselves into evidence.
The prosecutor again objected on relevance grounds. She argued that the
defense had not shown that there was any link between Lupe‟s grades and the
capital crime, or that other life problems had not affected his school performance.
Consistent with its prior ruling, the trial court declined to admit the grade
reports in any form. The court reasoned that such evidence had “no relevance to
anything.” In other words, to the extent Lupe‟s actual grades contradicted his
testimony about his school performance, such impeachment would involve an
irrelevant, collateral matter. Hence, the court saw no reason to discuss whether the
probative value was substantially outweighed by the risk of unfair prejudice, jury
confusion, or the undue consumption of time under Evidence Code section 352.
On this score, the court said, “I don‟t think I even have to bring in [section] 352
because [the proffered impeachment evidence] is simply not relevant.”

2. Manner in which trial court exercised its discretion
Defendant first argues that the report cards contradicted Lupe‟s testimony
about whether the capital crime upset him and affected his school performance.
This information, which was elicited on cross-examination, was assertedly

34
material because it bore on the larger question whether Lupe was credible insofar
as he implicated defendant in the capital crime. On this basis, defendant claims
the trial court abused its discretion in preventing him from asking Lupe about his
report cards and in excluding them at trial. We disagree.
To be relevant, evidence must have some “tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) This definition includes evidence “relevant to the
credibility of a witness.” (Ibid.; see Evid. Code, § 780 [the fact finder may
consider matters relevant to the truthfulness of the witness‟s testimony].)
Conversely, a matter is “collateral” if it has no logical bearing on any
material, disputed issue. (People v. Rodriguez (1999) 20 Cal.4th 1, 9
(Rodriguez).) A fact may bear on the credibility of a witness and still be collateral
to the case. (Ibid. [preventing prosecution witness who saw the murder from the
roof of his apartment building from being impeached with evidence disputing his
claim that he had management‟s permission to be there]; see People v. Dement
(2011) 53 Cal.4th 1, 50-52 (Dement) [holding that an inmate who testified for the
prosecution about seeing a prison murder could not be impeached with evidence
that he had lied in court about a murder he was convicted of many years before];
Harris, supra, 43 Cal.4th 1269, 1291-1292 [not allowing prosecution witness who
described alleged murderer‟s incriminating statements to be impeached with his
poor performance on juvenile probation even though it showed lax character].)
Of course, the trial court has wide latitude under state law to exclude
evidence offered for impeachment that is collateral and has no relevance to the
action. (People v. Homick (2012) 55 Cal.4th 816, 865; Harris, supra, 43 Cal.4th
1269, 1291; Rodriguez, supra, 20 Cal.4th 1, 9-10.) This exercise of discretion
necessarily encompasses a determination that the probative value of such evidence
is “substantially outweighed” by its prejudicial, “confusing,” or time-consuming

35
nature. (Evid. Code, § 352; see People v. Lewis (2001) 26 Cal.4th 331, 374-375
[noting that Evid. Code, § 352 gives trial court broad power to prevent
“ „ “nitpicking” ‟ ” over “ „ “collateral credibility issues” ‟ ”].)
Also, as long as the excluded evidence would not have produced a
“ „ “significantly different impression” ‟ ” of the witness‟s credibility, the
confrontation clause and related constitutional guarantees do not limit the trial
court‟s discretion in this regard. (Dement, supra, 53 Cal.4th 1, 52 [The “ „ordinary
rules of evidence do not impermissibly infringe on the accused‟s right to present a
defense‟ ”]; see Harris, supra, 43 Cal.4th 1269, 1292 [“ „Within the confines of
the confrontation clause, the trial court retains wide latitude in restricting cross-
examination that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance.‟ ”]; accord, People v. Mendoza (2011) 52 Cal.4th 1056, 1090.)
Here, the trial court did not abuse its discretion in excluding the report
cards as virtually irrelevant and wholly collateral to the case. The report cards
showed nothing more than that Lupe‟s grade pattern differed from his testimony
about his school performance (i.e., whether his performance or concentration was
“worse” or “better”) in the months after the capital crime. At most, the report
cards suggested he was lying or mistaken about the pattern of his grades during
that time. Any discrepancy between Lupe‟s grade pattern and his related
testimony does not show (1) why he performed in school in a particular manner
and earned certain grades, (2) whether he saw events at the crime scene or heard
the perpetrators‟ admissions afterwards, or (3) whether he had any reason to
falsely implicate defendant in the latter events. In other words, no substantive
inference could be drawn from the report cards, or from any testimony proffered
thereon, about defendant‟s guilt of the capital crime. Hence, the report cards
merely constituted an attempt to collaterally impeach Lupe on an irrelevant matter.

36
 It bears emphasis that the defense otherwise had “ample opportunity” to
impeach Lupe. (Harris, supra, 43 Cal.4th 1269, 1292.) Cross-examination
revealed certain discrepancies between Lupe‟s trial testimony on the one hand, and
both his testimony at the preliminary hearing and his statements to police on the
other hand. Examples included whether defendant or Jose ever told Lupe what
happened inside the Casa Blanca Market; whether defendant, Jose and Santos used
masks when committing the capital crime; and whether Louis made a U-turn to
pick up defendant and Jose before fleeing the crime scene. Lupe testified that he
either could not remember, or did not know, why his various accounts may have
differed in these respects.
In addition, defense counsel tested Lupe‟s memory of certain details he
gave on direct examination. This process covered key issues, such as the
circumstances under which the guns were placed in Louis‟s car before the capital
crime. Lupe was also asked whether he was generally guessing or lying at trial —
accusations he denied.
For all these reasons, no abuse of discretion in excluding testimony and
documentary proof about Lupe‟s high school grades occurred.

3. Trial court’s alleged failure to exercise discretion
Defendant next contends that the trial court behaved in an erroneous and
arbitrary manner because it “failed to perform any balancing functions” in
excluding Lupe‟s report cards and preventing cross-examination about them. This
claim focuses on the court‟s statement about not “bring[ing] in” Evidence Code
section 352. Defendant insists the court simply refused to decide whether the
evidence offered to impeach Lupe was substantially more prejudicial than
probative or otherwise implicated Evidence Code section 352.

37
 Defendant mischaracterizes the trial court‟s ruling. As noted above, a
determination that impeachment or other evidence should be excluded as
“collateral” inherently involves the balancing contemplated by Evidence Code
section 352. In such cases, the risk of causing the adverse effects that the court is
statutorily authorized to prevent is necessarily high where the probative value of
the evidence is low. Notwithstanding any inartful language used to describe its
ruling, the court properly exercised such discretion here. For reasons we have
explained, the proffered impeachment of Lupe about his school performance and
related emotional state threatened to distract the jury‟s attention from critical
concerns about the truth and accuracy of his testimony implicating defendant in
the capital crime. No refusal to exercise discretion occurred.

4. Trial court’s alleged lack of discretion
In an apparent departure from his other two claims about Lupe‟s report
cards, defendant insists the trial court had no discretion to exclude such evidence.
He reasons as follows: The prosecutor did not object when defense counsel began
questioning Lupe about his school performance and related emotional state —
testimony defendant concedes could properly have been excluded as irrelevant if
such a request had been made. Only after Lupe testified in a manner marginally
favorable to the prosecution (e.g., that he felt relieved and more focused after
speaking to the police) was a prosecutorial objection made and sustained by the
court. This ruling was belated, erroneous, and unfair in defendant‟s view because,
once the prosecution allowed Lupe to testify in a manner that could be proven
false, the trial court was required to allow impeachment even if the line of inquiry
was otherwise tangential to the case.
Defendant cites no authority, and we are aware of none, supporting his
suggestion that both the prosecutor and the trial court breached some duty they

38
were obligated to perform concerning cross-examination about Lupe‟s school
performance and grade reports after the capital crime. Rather, as noted above, the
defense had no right to impeach Lupe on this collateral matter. (See People v.
Mayfield (1997) 14 Cal.4th 668, 748, citing People v. Lavergne (1971) 4 Cal.3d
735, 744 [a party cannot “cross-examine a witness upon collateral matters for the
purpose of eliciting something to be contradicted”].) Thus, even though Lupe was
allowed to suggest that his grades went up or down for one reason or another, the
trial court could properly sustain the prosecution‟s objection that further testimony
along such lines lacked probative value and threatened to sidetrack the case. We
reject defendant‟s contrary claim.

C. Instruction on Past Misdemeanor Conduct
Defendant contends the trial court erred by failing to instruct sua sponte
that the jury could consider past misdemeanor conduct in assessing the credibility
of witnesses, namely, Vallejo. Defendant notes that the trial court gave CALJIC
No. 2.20, which lists various factors that potentially affect such determinations.
He complains, however, that the version given at his trial did not include standard
language, which the court had the option of giving at the time, concerning “[p]ast
criminal conduct of a witness amounting to a misdemeanor.” (CALJIC No. 2.20
(6th ed. 1996).)23 Such omission allegedly violated defendant‟s federal

23 CALJIC No. 2.20, as given at trial, stated: “Every person who testifies
under oath is a witness. You are the sole judges of the believability of a witness
and the weight to be given the testimony of each witness. [¶] In determining the
believability of a witness you may consider anything that has a tendency in reason
to prove or disprove the truthfulness of the testimony of a witness, including but
not limited to any of the following: [¶] The extent of the opportunity or the ability
of the witness to see or hear or otherwise become aware of any matter about which
the witness has testified; [¶] The ability of the witness to remember or to
communicate any matter about which the witness has testified; [¶] The character
(footnote continued on next page)

39
constitutional rights to due process, a fair jury trial, and a reliable capital
determination. (U.S. Const., 6th, 8th & 14th Amends.) We reject the claim.

1. Background
On both direct and cross-examination, Vallejo explained that in August
1995, he had personal problems, was abusing drugs and alcohol, and was facing
arrest on certain warrants. While intoxicated and determined to change his life, he
called law enforcement officials. He was arrested that night and taken into
custody. Vallejo told one or more officers, including Detective Hilger, that he had
information about the capital crime. In doing so, Vallejo hoped to “take care” of
his warrants.
Vallejo was cross-examined about his prior contact with the criminal justice
system. Counsel began by asking whether Vallejo was “arrested” in the
possession of certain “burglar tools” in April 1994. Vallejo said, “Yes, I got
arrested with them.” Counsel attempted to mark a police booking sheet related to
that arrest as a defense exhibit. The trial court sustained the prosecutor‟s
objection to the document, saying “booking is irrelevant.”
Counsel then asked whether Vallejo had been arrested in another incident
two months earlier, in February 1994. Before Vallejo answered, the prosecutor
objected to the evidence as irrelevant, collateral, and unduly time-consuming.
Defense counsel explained that the February 1994 arrest involved facts — e.g.,

(footnote continued from previous page)

and quality of that testimony; [¶] The demeanor and manner of the witness while
testifying; [¶] The existence or nonexistence of a bias, interest, or other motive;
[¶] Evidence of the existence or nonexistence of any fact testified to by the
witness; [¶] The attitude of the witness toward this action or toward the giving of
testimony; [¶] A statement previously made by the witness that is consistent or
inconsistent with the testimony of the witness.”

40
possession of a shotgun — that tended to link Vallejo to the capital crime, which
occurred 10 months later, in December 1994. Counsel theorized that when Vallejo
told the police about the capital crime in August 1995, he lied about defendant‟s
guilt in order to “throw suspicion off himself” as the person who killed Hassan
with a shotgun. Counsel otherwise denied trying to “impeach [Vallejo] because
he‟s done bad things.” After further discussion with counsel, the court decided to
allow the questioning of Vallejo about the February and April 1994 arrests.
When cross-examination resumed, Vallejo answered “yes” when asked
whether he was “arrested” for having “a couple of 12-gauge shotgun shells in [his]
jacket pocket.” Vallejo also noted that a shotgun was found nearby, but denied
that it was in his possession. Defense counsel assumed in subsequent questioning
that the same incident involved a “billy club” — an assumption Vallejo did not
confirm or refute.
Vallejo was then cross-examined about what counsel referred to as a
“misdemeanor” proceeding arising from the February 1994 arrest. Though he did
not identify the underlying criminal charge at trial, Vallejo admitted that a warrant
had issued for his “failure to appear,” and that he had been jailed on December 31,
1995, as a result. Vallejo also answered “yes” when asked whether other warrants
had issued in the misdemeanor case for failing to pay restitution and to serve 20
days in custody.
Next, defense counsel pressed Vallejo about his reasons for acting as an
informant and witness against defendant. Vallejo answered “yes” when asked if
he had been “supplying and selling drugs” to defendant and the other three men,
and whether they owed him money as a result. However, Vallejo denied
participating in the present case because of anger over an unpaid debt. In a related
vein, Vallejo gave a “yes” answer when asked whether he had ever “use[d]
methamphetamine during work hours.”

41
 Finally, both parties asked Vallejo and Detective Hilger to describe events
after Vallejo gave his taped statement about the capital crime. Vallejo testified
that he was promptly released from custody — a procedure that Hilger
characterized as normal in misdemeanor warrant cases like Vallejo‟s. According
to Vallejo, he signed no agreement with any agency concerning his testimony
herein. Hilger gave a similar account. Hilger made no arrangement with the
district attorney‟s office on Vallejo‟s behalf. Nor, to Hilger‟s knowledge, did
Vallejo‟s cooperation in the present case affect any court matter in which he was
otherwise involved.

2. Analysis
Defendant argues for the first time on appeal that the trial court should have
instructed on “[p]ast criminal conduct of a witness amounting to a misdemeanor.”
(CALJIC No. 2.20 (6th ed. 1996); see CALCRIM No. 105.) He insists that, absent
such an instruction, the jury would not have known it could consider such
evidence in evaluating Vallejo‟s credibility insofar as he implicated defendant in
the capital crime.
As a threshold matter, we assume solely for the sake of argument that the
following circumstances are true, all of which favor defendant: (1) his complaint
about the omitted instruction was not forfeited by failing to raise it at trial (see
§ 1259 [instructional claims affecting substantial rights are reviewable on appeal
absent objection in trial court]), (2) evidence elicited on cross-examination about
Vallejo‟s prior arrests and misconduct involved “moral turpitude” and therefore
bore on his credibility as a prosecution witness, (3) the jury would not have known
to consider Vallejo‟s past misconduct as a factor bearing on his credibility absent

42
the instructional language at issue here, and (4) the trial court had a sua sponte
duty to give such an instruction.24
Nevertheless, any error was harmless. We are persuaded that an instruction
highlighting Vallejo‟s past conduct would not have induced the jury to disbelieve
his testimony that defendant shot and killed Hassan while robbing the Casa Blanca
Market. (See, e.g., People v. Farley (2009) 46 Cal.4th 1053, 1105; People v.
Whisenhunt (2008) 44 Cal.4th 174, 208.)
Though the defense showed that Vallejo had several brushes with the law,
they were not highly persuasive on the issue of his character for honesty. Vallejo

24 Though not mentioned by the parties on appeal, the law provides that any
criminal act or other misconduct involving moral turpitude suggests a willingness
to lie and is not necessarily irrelevant or inadmissible for impeachment purposes.
(People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler); see id. at pp. 297-
299 [misdemeanor conviction itself is inadmissible over a hearsay objection to
prove misconduct bearing on credibility]; see also Cal. Const., art. I, § 28, subd.
(f)(2) (Truth-in-Evidence provision).) However, to the extent such misconduct
amounts to a misdemeanor or is not criminal in nature, it carries less weight in
proving lax moral character and dishonesty than does either an act or conviction
involving a felony. (Wheeler, supra, 4 Cal.4th at p. 296; see Evid. Code, § 788
[authorizing prior felony convictions for impeachment].) Hence, trial courts have
broad discretion to exclude impeachment evidence other than felony convictions
where such evidence might involve undue time, confusion, or prejudice.
(Wheeler, supra, 4 Cal.4th at pp. 296-297; accord, People v. Lightsey (2012)
54 Cal.4th 668, 714; People v. Clark (2011) 52 Cal.4th 856, 931-932.)
We further note that “moral turpitude” refers to a general “ „readiness to do
evil‟ ” even if dishonesty is not necessarily involved. (People v. Castro (1985)
38 Cal.3d 301, 315; see Wheeler, supra, 4 Cal.4th 284, 295.) Under Castro,
supra, 38 Cal.3d at page 317, the crime of possessing heroin for sale involves
moral turpitude because of the intent to corrupt others. (See People v. Harris
(2005) 37 Cal.4th 310, 336-339 [trial court erred in barring impeachment of
prosecution witness as a “drug dealer”].) As noted above, Vallejo admitted,
among other things, that he sold drugs to defendant and others implicated in the
capital crime.

43
admitted selling drugs to defendant and his alleged accomplices. Otherwise, the
evidence did not make clear what crimes Vallejo committed or whether any of the
conduct involved moral turpitude. He did not dispute being arrested for
possessing weapons (e.g., a billy club) and other items (e.g., burglary tools)
associated with criminal activity. One of these arrests also apparently led to a
misdemeanor proceeding in which warrants were issued for failure to perform
court-ordered conditions. Indeed, defense counsel conceded that at least some of
Vallejo‟s past misconduct was not even offered as evidence of a general bad
character bearing on veracity.
Balanced against this checkered history, the prosecution introduced
extensive evidence corroborating Vallejo‟s testimony about the capital crime, and
indicating that he was telling the truth. At trial, Vallejo — who received no
benefit from his cooperation in the case — described being present when Santos,
Jose, and defendant incriminated themselves in a robbery murder the night of the
Casa Blanca crimes. Based on these statements, Vallejo testified that defendant
shot Hassan twice with a shotgun after he failed to cooperate and hand over any
cash. According to Vallejo, defendant displayed a handgun he admitted taking
from Hassan during the crime. Vallejo also testified that either defendant or
Santos said that they had borrowed two long guns from Shorty (a shotgun and
rifle) the night before, and that the guns would be used to pull a robbery “job.”
Lupe gave the most detailed testimony supporting the information Vallejo
attributed to the perpetrators. Lupe testified that he was in the car when Louis
drove defendant, Jose, and Santos to the Casa Blanca Market in order to commit a
robbery. According to Lupe, defendant and Jose each entered the store wearing
face masks and carrying weapons similar to the ones Vallejo had described.
Consistent with Vallejo‟s account, Lupe further testified that both Jose and
defendant described what happened in the store, as follows: defendant shot Hassan

44
after he took out a handgun; no cash was offered or found; and property belonging
to the victim was taken from the store. Like Vallejo, Lupe testified that defendant
displayed a handgun while discussing his role as the actual killer.
Notably, other prosecution witnesses, some of whom did not know the
perpetrators, confirmed both Vallejo‟s and Lupe‟s testimony in key respects. Like
Lupe, an eyewitness, Amanda Garcia, saw three men at the crime scene wearing
face masks. Two of the masked men ran out of the Casa Blanca Market (at least
one of whom may have been armed), and a third man wore a similar disguise in
the getaway car. Garcia identified Louis‟s car as the one the robbers used at the
crime scene. In addition, defendant‟s friend Shorty and his wife, Mariela,
corroborated Vallejo‟s testimony that defendant had access to the probable murder
weapon, a shotgun. Defendant was also linked to Hassan‟s stolen handgun
through Officer McIntosh, who obtained the weapon from defendant‟s brother,
Fernando, shortly after the capital crime.
Thus, under any applicable standard, an instruction directing the jurors‟
attention to Vallejo‟s past misconduct would not have caused them to reject his
testimony identifying defendant as the shooter in the capital crime. No prejudice
occurred under the circumstances presented here.

D. Single Witness Instruction
Defendant insists the trial court erred prejudicially in failing to instruct sua
sponte with CALJIC No. 2.27, which concerns the circumstances under which the
jury may rely on the uncorroborated testimony of a single witness. Defendant
acknowledges that Lupe, Vallejo, and other prosecution witnesses corroborated
each other with respect to defendant‟s guilt of robbery murder, including his
identity as the actual killer. He insists, however, that CALJIC No. 2.27 was
required because the credibility of certain witnesses was “highly suspect,” and the

45
jury could have rejected all or some of their testimony and decided material facts
based on only one witness.25 Defendant invokes his federal constitutional rights
to due process, a fair jury trial, and a reliable capital determination. (U.S. Const.,
6th, 8th & 14th Amends.) The claim lacks merit even assuming defendant is
correct that no objection was needed to preserve it for appeal. (See § 1259.)
Fairly understood, CALJIC No. 2.27 targets the situation in which the
proponent of a particular fact offers the testimony of only one witness to establish
it. In other words, when the proponent of evidence seeks to establish a material
fact through the “testimony of a single witness” as to whom no corroboration is
legally required, jurors may “believe” such testimony, and accept it as “sufficient
for the proof of that fact,” but they should do so only after “carefully review[ing]
all the evidence upon which the proof of that fact depends.” (Ibid.)
Nothing in CALJIC No. 2.27 concerns suspect witnesses in particular. Nor
does CALJIC No. 2.27 address the anomalous situation in which multiple
witnesses testify to the same material fact, but the jury is inclined to reject all but
one of the witnesses‟ testimony. Otherwise, the instruction would be nothing

25 CALJIC No. 2.27, which is virtually unchanged since the time of trial,
provides as follows: “You should give the [uncorroborated] testimony of a single
witness whatever weight you think it deserves. Testimony concerning any fact by
one witness, which you believe, [whose testimony about that fact does not require
corroboration] is sufficient for the proof of that fact. You should carefully review
all the evidence upon which the proof of that fact depends.”
We note that defendant does not challenge other standard instructions given
at trial identifying Lupe as an accomplice as a matter of law, and subjecting his
testimony to rules requiring corroboration. (CALJIC Nos. 3.10 [Accomplice
Defined], 3.11 [Testimony of Accomplice Must Be Corroborated], 3.12
[Sufficiency of Evidence to Corroborate an Accomplice], 3.13 [One Accomplice
May Not Corroborate Another], 3.14 [Criminal Intent Necessary to Make One an
Accomplice], 3.16 [Witness Accomplice as Matter of Law], 3.18 [Testimony of
Accomplice to be Viewed with Caution].)

46
more than a superfluous advisement to carefully consider the testimony of each
witness in every case. (See People v. Turner (1990) 50 Cal.3d 668, 695-698 [trial
court properly gave CALJIC No. 2.27 where defendant offered only his own
uncorroborated testimony to defend against a robbery murder charge on grounds
the killing was provoked and involved no pre-formed intent to steal]; People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 883-885 [holding that, in all criminal cases
not requiring corroboration, a prophylactic instruction like CALJIC No. 2.27 must
be given to aid defendants implicated by only the victim or other single witness].)
Applying these principles, we conclude no prejudicial error occurred. The
proponent of the challenged evidence, the prosecution, did not seek to establish,
by the testimony of only one witness, that defendant robbed and shot Hassan. On
the contrary, the prosecution presented more than one witness to prove each
material fact. Thus, as noted above, Lupe and Vallejo both identified defendant at
trial as the person who killed Hassan during a robbery at the Casa Blanca Market.
Both witnesses described defendant‟s statements essentially bragging about his
role as the shooter shortly after the crime occurred. Lupe and Vallejo also testified
that Jose admitted being defendant‟s partner in the actual robbery. Although no
money was found, Lupe and his sister, Yesenia, testified that Jose admitted taking
the victim‟s wallet from the store. Likewise, according to Lupe and Vallejo,
defendant showed each of them the handgun that belonged to Hassan.
Of course, Lupe and Vallejo were not the only witnesses the prosecution
used to prove defendant‟s guilt of robbery murder. Like Lupe, Amanda Garcia
saw the perpetrators wearing face masks at the crime scene, and fleeing in Louis‟s
car afterwards. Shorty and Shorty‟s wife Mariela buttressed Vallejo‟s testimony
that defendant acquired a shotgun the night before the capital crime. The autopsy
physician confirmed that Hassan suffered two shotgun blasts. Finally, Officer

47
McIntosh obtained the victim‟s handgun under circumstances corroborating
Lupe‟s and Vallejo‟s testimony that defendant possessed it after the capital crime.
No reversible error occurred insofar as the trial court failed to give CALJIC
No. 2.27, the single witness instruction, at defendant‟s trial.

E. Reasonable Doubt Instructions
Defendant contends that various standard instructions read by the trial
court, when viewed alongside the standard reasonable doubt instruction also given
at trial, impermissibly diluted the prosecution‟s burden of proof in violation of his
federal and state constitutional rights to due process, trial by jury, and reliable
capital trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15-
17; see CALJIC No. 2.90 [presumption of innocence, reasonable doubt, and
burden of proof].) Based on a long line of authority, we disagree.
The first set of challenged instructions concerned the sufficiency of
circumstantial evidence to prove three things: guilt (CALJIC No. 2.01), the special
circumstance (CALJIC No. 8.83), and the mental state underlying the special
circumstance (CALJIC No. 8.83.1). These instructions made clear that all
circumstances supporting an inference of guilt or a true special circumstance
finding must be proved beyond a reasonable doubt; that circumstantial evidence
cannot support either a conviction or a true special circumstance finding unless it
cannot be reconciled with any other rational conclusion; that between two
reasonable interpretations of the evidence, the one more consistent with innocence
or an untrue special circumstance finding must be accepted; and that a reasonable
interpretation prevails over an unreasonable one.
In short, the jury was properly told to “ „reject unreasonable interpretations
of the evidence and to give defendant the benefit of any reasonable doubt.‟ ”
(People v. McKinzie (2012) 54 Cal.4th 1302, 1355 (McKinzie).) The

48
circumstantial evidence instructions did not permit, induce, or compel jurors to
convict defendant or to sustain the special circumstance merely because he
reasonably appeared to have committed the charged crimes. (Ibid.; see People v.
Jones, supra, 57 Cal.4th 899, 972; People v. Solomon (2010) 49 Cal.4th 792, 826-
827; People v. Maury (2003) 30 Cal.4th 342, 428; People v. Millwee (1998) 18
Cal.4th 96, 160.) Nor would the jury, when considering the circumstantial
evidence instructions alongside the reasonable doubt instruction, somehow still
have been misled about the requisite standard of proof. (People v. Carey (2007)
41 Cal.4th 109, 129-130 (Carey).) Defendant offers no persuasive reason to
reconsider our decisions, and we decline to do so.
The second set of challenged instructions concerned the credibility and
weight of evidence. (CALJIC Nos. 1.00 [outlining basic duties of judge and jury,
including jurors‟ duty not to infer defendant is “more likely to be guilty than
innocent” because he was prosecuted for the charged crimes], 2.21.1 [directing the
“weighing” of discrepancies in witness testimony], 2.21.2 [allowing rejection of
the whole testimony of a witness who was willfully false in one material part
unless “the probability of truth” dictates otherwise], 2.22 [stating that conflicting
testimony is to be weighed not by counting the witnesses on either side but by
determining “the convincing force of the evidence”].)
Contrary to what defendant suggests, these instructions did not vitiate the
reasonable doubt standard and allow jurors to decide each element of the charged
crimes or special circumstance allegation simply by weighing the probabilities or
considering the preponderance of the evidence. “ „Jurors are not reasonably likely
to draw, from bits of language in instructions that focus on how particular types of
evidence are to be assessed and weighed, a conclusion overriding the direction,
often repeated in voir dire, instruction, and argument, that they may convict only if
they find the People have proven guilt beyond a reasonable doubt.‟ ” (McKinzie,

49
supra, 54 Cal.4th 1302, 1356-1357.) No reasonable juror would have “parsed”
these instructions and believed that the People had some lesser burden of proof.
(People v. Livingston (2012) 53 Cal.4th 1145, 1169; see People v. Jones, supra, 57
Cal.4th 899, 972-973; People v. Streeter (2012) 54 Cal.4th 205, 253; Carey,
supra, 41 Cal.4th 109, 130-131.)26

F. Validity of Felony-Murder Special Circumstance
Defendant challenges the validity of both the felony-murder special-
circumstance statute and the lone special circumstance finding of felony murder
underlying his death sentence. (See § 190.2(a)(17).) In defendant‟s view, capital
punishment is disproportionate to culpability under both the Eighth Amendment of
the United States Constitution and international law unless the People prove that
“an actual killer had a culpable state of mind with regard to the murder.”
Defendant‟s descriptions of this alleged mental state vary. He argues in his
opening brief that a valid felony-murder special circumstance requires actual
killers to possess at least a “reckless indifference to human life.” In his reply
brief, however, defendant states that “[t]o impose a death sentence, there must be
proof that the defendant, whether the actual killer or an accomplice, acted with an
intent to kill.” Defendant is wrong on both counts.

26 Regarding forfeiture, the Attorney General recognizes that nothing compels
us to conclude that defendant has failed to preserve his challenge to the reasonable
doubt instructions here by not objecting on similar grounds below. (See § 1259.)
However, contrary to what the Attorney General asks us to do, we reach no
different conclusion and find no procedural bar as to two instructions, CALJIC
Nos. 2.21.1 and 2.21.2, which defendant requested at trial. (See People v.
Belmontes (1988) 45 Cal.3d 744, 781 (Belmontes) [propriety of instruction
affecting substantial rights addressed on appeal where defendant requested it at
trial]; see also People v. DePriest (2007) 42 Cal.4th 1, 52 (DePriest).)

50
 The analysis starts from the premise that the death penalty is impermissibly
excessive under the Eighth and Fourteenth Amendments where the defendant aids
and abets a felony resulting in murder, but “does not himself kill, attempt to kill,
or intend that a killing take place or that lethal force will be employed.” (Enmund
v. Florida (1982) 458 U.S. 782, 797 (Enmund); see id. at pp. 784, 788 [prohibiting
death for a getaway driver who waited outside the crime scene to help associates
escape a robbery, and who did not join in the killings or possess either an intent to
kill or other lethal mental state].) Enmund‟s limits on death eligibility and
sentencing are “categorical.” (Cabana v. Bullock (1986) 474 U.S. 376, 386.)
When such rules are stated in terms of the circumstances under which capital
punishment is allowed, no constitutional violation occurs where the defendant “in
fact killed, attempted to kill, or intended to kill.” (Ibid., italics added.)
Accordingly, in the context of first degree felony murder, we have not
conditioned capital punishment upon an intent to kill for actual killers.
(Belmontes, supra, 45 Cal.3d 744, 794 [“The United States Supreme Court has
made clear that felony murderers who personally killed may properly be subject to
the death penalty in conformance with the Eighth Amendment — after proper
consideration of aggravating and mitigating circumstances — even where no
intent to kill is shown.”].) The felony-murder special circumstance in section
190.2(a)(17) is valid absent any requirement that a defendant who actually killed
during an enumerated felony acted with the intent to kill. (People v. Anderson
(1987) 43 Cal.3d 1104, 1138-1148, overruling Carlos v. Superior Court (1983) 35
Cal.3d 131, 138-154.) We reject defendant‟s contrary claim. We also decline to
reconsider Anderson, supra, 43 Cal.3d 1104 in this regard. (E.g., People v.
Stanley (2006) 39 Cal.4th 913, 958; People v. Young (2005) 34 Cal.4th 1149,
1204; People v. Diaz (1992) 3 Cal.4th 495, 569.)

51
 Likewise, we disagree with defendant that, to withstand constitutional
scrutiny, the felony-murder special circumstance in section 190.2(a)(17)
minimally requires a finding of “reckless indifference to human life” for actual
killers lacking an intent to kill. In Tison v. Arizona (1987) 481 U.S. 137 (Tison),
on which defendant relies, the court addressed whether an accomplice to a first
degree felony murder who neither killed nor intended to kill could receive a death
sentence consistent with the standards set forth in Enmund, supra, 458 U.S. 782.
(See Tison, supra, 481 U.S. at pp. 139-141, 151-152 [allowing the death penalty
for brothers who helped kidnap and rob the victims in an ongoing scheme to
prevent the capture of their father, a dangerous fugitive, and who watched the
father and another accomplice slaughter the victims].) Tison answered in the
affirmative, holding that death is not disproportionate to culpability where there
was “major participation in the felony committed, combined with reckless
indifference to human life.” (Tison, supra, 481 U.S. at p. 158.) Indeed, while
noting that these two requirements are technically “separate[ ],” the court opined
that some felonies carry such a grave risk of death that “one could properly
conclude that any major participant necessarily exhibits reckless indifference to
the value of human life.” (Tison, supra, at p. 158, fn. 12; see id. at p. 157.)
Consistent with Tison, supra, 481 U.S. 137, the felony-murder special
circumstance applicable to certain accomplices in section 190.2, subdivision (d),
provides that “in the absence of a showing of intent to kill, an accomplice to the
underlying felony who is not the actual killer, but is found to have acted with
„reckless indifference to human life and as a major participant‟ in the commission
of the underlying felony,” may be sentenced to death. (People v. Estrada (1995)
11 Cal.4th 568, 575; see People v. Mil (2012) 53 Cal.4th 400, 408-409.)
However, the principles and authorities that allow the death penalty for
nonkiller accomplices to felony murder have no direct bearing on what is

52
minimally required to impose death on someone who actually kills during a felony
and who possesses no lethal mental state. We recently made this point, as follows:
“The circumstance that the court concluded in Tison[,] [supra, 481 U.S.
137] that major participation in the underlying crime coupled with reckless
indifference to human life was sufficient culpability for the death penalty to be
imposed upon an aider and abettor does not signify that the high court concluded
— or even implied — such circumstances are necessary in all cases to establish
death eligibility, such as, for example, when the defendant is the actual killer. . . .
[P]roof that a defendant who is guilty of felony murder was the actual killer of the
victim — by itself — establishes the degree of culpability required to impose the
death penalty. Tison and Enmund[,] [supra, 458 U.S. 472], which addressed
different concerns, do not alter that established principle. Indeed, those cases,
viewed properly, reinforce that rule.” (People v. Letner and Tobin (2010) 50
Cal.4th 99, 193 (Letner and Tobin) [holding trial court need not instruct that
felony-murder special circumstance requires the actual killer to be a major
participant in the felony who acted with reckless disregard of human life]; accord,
People v. Taylor (2010) 48 Cal.4th 574, 661 (Taylor).)
We reject defendant‟s further suggestion that Kennedy v. Louisiana (2008)
554 U.S. 407 (Kennedy), invalidates section 190.2(a)(17) as we have construed the
statute here and in prior cases. In Kennedy, the high court held that the Eighth and
Fourteenth Amendments prohibited imposition of the death penalty upon an adult
male defendant for the violent rape of an eight-year-old girl “where the crime did
not result, and was not intended to result, in death of the victim.” (Id. at p. 413.)
In so doing, the Kennedy court surveyed and weighed both legislative and societal
opinion, and found a national consensus that death was disproportionate under
such circumstances. (Id. at pp. 422-434.) The court also conducted its own
proportionality analysis based on settled case law, including Enmund, supra, 458

53
U.S. 782, and Tison, supra, 481 U.S. 137, and on the underlying aims of the death
penalty. (Kennedy, supra, 554 U.S. at pp. 421, 434-447.)
Contrary to what defendant claims, nothing in Kennedy, supra, 554 U.S.
407, undermines any decision of the United States Supreme Court or this court
concerning the circumstances under which a death sentence is allowed for felony
murderers who actually kill their victims. We discern no change in the law
supporting our conclusion that an actual killer need not, in defendant‟s words,
have “a culpable state of mind with regard to the murder.” (See Letner and Tobin,
supra, 50 Cal.4th 99, 197 [observing that Kennedy, supra, 554 U.S. 407, “did not
overrule” Tison, supra, 481 U.S. 137, insofar as Tison permitted death for certain
accomplices who did not kill or intend to kill in the course of felony murder].)
For all of these reasons, the Eighth and Fourteenth Amendments do not
compel us to interpret the special circumstance in section 190.2(a)(17) in the
manner defendant suggests for persons who actually kill in the course of a felony
murder. Also, because defendant‟s death sentence complied with federal and state
constitutional and statutory requirements in this respect, his related international
law claim fails. (People v. Watkins (2012) 55 Cal.4th 999, 1033-1034 & fn. 17;
Taylor, supra, 48 Cal.4th 574, 661.)
Here, consistent with the foregoing law, prosecution evidence showed that
defendant actually killed Hassan in the course of an armed robbery at the Casa
Blanca Market. The previous night, defendant borrowed a shotgun and rifle from
his friend Shorty in order to commit a robbery and get some quick cash. The next
day, defendant and his accomplices brought along two long guns — presumably,
Shorty‟s shotgun and rifle — as they drove around looking for places to rob.
During the drive, defendant, Jose, and Santos put on face masks. The group
targeted the second store they saw, the Casa Blanca Market, because they

54
perceived a lower risk of being seen by potential witnesses. When defendant
crossed the threshold, he was carrying the shotgun.
Once inside, Jose searched for cash. Hassan displayed a handgun. Jose,
who apparently wielded the rifle, tried to shoot Hassan but could not do so.
Defendant, who was already pointing his weapon at Hassan, reacted in a deadly
manner. By his own admission, defendant warned Hassan that he would be shot if
he resisted. After firing the shotgun once and seeing Hassan wounded on the
floor, defendant continued the assault. He approached Hassan, thought he was
smiling, and said he would be killed. Defendant kicked Hassan, and shot him a
second time. Hassan died from two shotgun blasts, including one to the back.
Afterwards, defendant admitted that he shot and killed Hassan, and twice
displayed the handgun he had taken in the process. Defendant seemed pleased
about having shot Hassan, and helped celebrate the crime the night it occurred.
Accordingly, defendant‟s challenge to the felony-murder special
circumstance and to its application here fails. We decline to reverse the judgment
on this ground.
V. PENALTY PHASE ISSUES

A. Instructions on Witness Credibility
The trial court gave CALJIC No. 8.84.1, the standard instruction describing
the jury‟s basic duties at the penalty phase, including the requirement that jurors
accept and follow the law as stated by the court. The language in CALJIC
No. 8.84.1 has not changed since the time of trial, and requires the jury, among
other things, to “[d]isregard all other instructions given to you in other phases of
this trial.” As relevant here, the court also made two rulings at the penalty phase
concerning standard instructions it had given at the guilt phase affecting the
evaluation of witness credibility. First, the court declined to repeat those

55
credibility instructions. Second, contrary to the apparent preference of counsel on
both sides, the court did not instruct that guilt phase instructions on witness
credibility applied at the penalty phase.27
Defendant now claims the trial court withheld guidance the jury needed to
properly evaluate biased and conflicting testimony given by members of Arcadia‟s
family at the penalty phase (i.e., her sisters Maria and Elisabeth and brother-in-law
Ramon). Such aggravating evidence involved defendant‟s alleged assault with a
firearm upon Arcadia and six relatives, including young Marco, four months
before the capital crime. (See §§ 190.3, factor (b) (factor (b)) [other violent
criminal activity], 245, subd. (a)(2) [assault with a firearm].) Citing no specific
constitutional provisions, defendant asserts violations of his federal and state
rights to a fair penalty trial and reliable death verdict.28
In general, the trial court need not repeat or highlight “generic” guilt phase
instructions on witness credibility at the penalty phase as long as the jury can
properly infer that these instructions continue to apply. (People v. Brown (1988)
46 Cal.3d 432, 460; see People v. Rogers (2006) 39 Cal.4th 826, 905 [reasonable

27 The relevant instructions were CALJIC No. 2.00 (defining direct and
circumstantial evidence, and allowing reasonable inferences to be drawn from the
evidence), CALJIC No. 2.01 (regulating the use and sufficiency of circumstantial
evidence), CALJIC No. 2.20 (authorizing the jury to decide the credibility of
witnesses and identifying relevant factors), and CALJIC No. 2.22 (concerning the
weighing of conflicting testimony).
28 The trial court gave other standard instructions, not challenged on appeal,
concerning the evidence of assault with a firearm under factor (b). These
instructions required proof beyond a reasonable doubt to consider such crime in
aggravation (CALJIC No. 8.87), defined the crime of assault (CALJIC No. 9.00),
defined assault with a firearm (CALJIC No. 9.02), required a concurrence of act
and general intent for assault with a firearm (CALJIC No. 3.30), and defined
reasonable doubt (CALJIC No. 2.90).

56
doubt].) Such is the case where the instructions are not limited by their terms to
the guilt phase or contradicted by other advisements at the penalty phase. (People
v. Sanders (1995) 11 Cal.4th 475, 561; People v. Wharton (1991) 53 Cal.3d 522,
600.) However, penalty jurors cannot reasonably be expected to apply guilt phase
instructions on credibility where they are categorically told to disregard them and
no reinstruction is given. Under the latter circumstances — which existed at
defendant‟s trial — error occurs. (People v. Lewis (2008) 43 Cal.4th 415, 535
(Lewis); People v. Moon (2005) 37 Cal.4th 1, 36-37 (Moon).)
Nevertheless, defendant has not shown that the instructional omission
resulted in prejudice as to the jury‟s evaluation of the evidence of assault with a
firearm under factor (b). (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1073
(Brasure); Lewis, supra, 43 Cal.4th 415, 535-536; Moon, supra, 37 Cal.4th 1, 37-
39; People v. Carter (2003) 30 Cal.4th 1166, 1220 (Carter).) Events leading up to
the shooting were undisputed. Consistent with statements made to Officer Rapozo
at the crime scene, all three witnesses testified that the shooting involved a quarrel
over child custody. Arcadia became concerned when she learned defendant had
taken their son Marco from the family home while she was gone. Arcadia and five
other people drove in the Thunderbird to defendant‟s residence. Arcadia and
defendant argued outside while Maria and Elisabeth placed Marco in the car.
Gunshots were fired, the victims drove away, and the police were called.
Forensic evidence corroborated witness testimony about a shooting in front
of defendant‟s home. Arriving shortly after the crime apparently occurred, Officer
Rapozo found shell casings in the road nearby. The casings came from a pistol,
which one of the witnesses, Ramon, reported seeing in defendant‟s hand as he
aimed at the occupied car. Also, bullet holes, one of which was not far from the
ground, were found in a neighboring building. This evidence supported Maria‟s
testimony that defendant pointed the gun downwards toward the car.

57
 All witnesses also agreed on the key point that defendant shot at the
Thunderbird after everyone, including Marco, was inside. Before hearing gunfire,
Maria and Ramon both saw defendant point a gun at the car. Elisabeth did not see
the gun or where it was aimed, but she knew defendant was the shooter because no
other culprit was nearby. Maria, Elisabeth, and Ramon each heard multiple shots.
Defendant suggests, however, that any variation in testimony necessarily
means that the witnesses falsely implicated him in the shooting, and that they
struggled to follow a concocted storyline at trial. To the contrary, there was
nothing artificially consistent about their accounts. For instance, Maria testified
that defendant took Marco from Elisabeth, and that Elisabeth got Marco a second
time before carrying him to the car. Elisabeth disputed this point. Also, Maria
and Ramon both saw a gun, but described it differently. Elisabeth never saw a gun
and could provide no such description. Only Ramon reported seeing defendant
seven or eight feet from the car when the shooting occurred. These
inconsistencies and discrepancies are fairly minor, and seem to be the kind
commonly found among eyewitnesses to an unforeseen and startling event.
Finally, it bears emphasis that the relevant instructional error concerned
credibility determinations — a task lay jurors would be expected to understand
and perform in their daily lives. As the case law makes clear, it seems far-fetched
to assume that the jury, in assessing factor (b) evidence: (1) placed great weight
on “a general direction to disregard the guilt phase instructions,” (2) “acted
contrary to common sense” in evaluating credibility, and (3) abandoned
“commonly held precept[s]” regarding witnesses‟ motivation to lie or any other
bias in performing that function. (Brasure, supra, 42 Cal.4th 1037, 1073 [finding
no prejudice under circumstances similar to the present case].)

58
 Thus, under any applicable standard, the lack of proper instruction on
witness credibility was harmless as to both the factor (b) determination and the
resulting penalty verdict. We will not reverse the judgment on this ground.

B. Request to Modify and Supplement Standard Instructions
Defendant claims the trial court erroneously denied his request to modify
one standard instruction, CALJIC No. 8.88, and to give several special instructions
concerning the death penalty. In doing so, the court purportedly violated his
federal and state constitutional rights to due process, a fair jury trial, and a reliable
capital determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art.
I, §§ 7, 15.) Under settled law, defendant is wrong.29

1. CALJIC No. 8.88
This standard instruction, which is virtually unchanged since the time of
trial, concerns the weighing of aggravation and mitigation and selection of the
appropriate penalty. At issue here is the last sentence, which states: “To return a
judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” (CALJIC No. 8.88, italics
added.) Defendant‟s proposed modification would have qualified the italicized
terms by advising jurors that aggravation must “outweigh” mitigation, and that
death must be “appropriate.” Otherwise, he contends, the instruction invited the
jury to exercise its sentencing discretion in a skewed and arbitrary manner.

29 As agreed by the parties, the trial court granted defendant‟s request for a
special instruction concerning his constitutional right not to testify at the penalty
trial. This instruction told jurors to avoid drawing any inference from defendant‟s
failure to testify, and to prevent this matter from affecting their deliberations.

59
 However, the standard version of CALJIC No. 8.88, read as a whole,
accurately describes the individualized, normative nature of the sentencing
determination, and properly guides the jury‟s discretion in this regard. Language
preceding the challenged sentence states, among other things, that “[i]n weighing
the various circumstances you determine under the relevant evidence which
penalty is justified and appropriate by considering the totality of the aggravating
circumstances with the totality of the mitigating circumstances.” (Ibid., italics
added.) Thus, as in other cases, we reject defendant‟s claim that CALJIC
No. 8.88, including the “so-substantial” phrase, is vague and uncertain. The
instruction also makes clear that a death sentence is “warranted” only if it is
appropriate in light of the aggravating and mitigating evidence at trial. (McKinzie,
supra, 54 Cal.4th 1302, 1361; Famalaro, supra, 52 Cal.4th 1, 43; People v. Butler
(2009) 46 Cal.4th 847, 874 (Butler); People v. Page (2008) 44 Cal.4th 1, 56.)

2. Death as the Most Severe Penalty
Defendant requested a special instruction stating that death is the most
severe penalty under the law. On its face, the instruction sought to dispel any
impression expressed during jury selection that a sentence of life without the
possibility of parole was “actually worse” than a death sentence.30 However, the
trial court was not required to give this instruction and did not err in refusing to do

30 The proposed instruction read as follows: “Some of you expressed the
view during jury selection that the punishment of life in prison without possibility
of parole was actually worse than the death penalty. [¶] You are instructed that
death is qualitatively different from all other punishment and is the ultimate
penalty in the sense of the most severe penalty the law can impose. Society‟s next
most serious punishment is life in prison without possibility of parole. [¶] It
would be a violation of your duty, as jurors, if you were to fix the penalty at death
with a view that you were thereby imposing the less severe of the two available
penalties.”

60
so. Though it is a correct statement of law to describe death as the ultimate
penalty, “ „the penalty trial itself and the jury instructions given, particularly
CALJIC No. 8.88, make clear that the state views death as the most extreme
penalty.‟ ” (People v. Jones (2012) 54 Cal.4th 1, 81; accord, People v. Tate
(2010) 49 Cal.4th 635, 707.) The court properly avoided such redundancy here.
(People v. Cook (2007) 40 Cal.4th 1334, 1363.)

3. Deterrent Effect of Death Penalty
Contrary to what defendant now claims, the trial court did not err in
refusing to instruct the jury not to consider the deterrent effect of the death
penalty. Defendant speculates that because certain jurors mentioned deterrence on
their written questionnaires, such a cautionary instruction was necessary.31 He
does not contend, however, that either party raised the issue at trial. Nor does he
address the inherent risk that such an instruction would have called the jury‟s
attention to irrelevant matters it otherwise would have ignored. Indeed, under the
court‟s instructions, the jury was told to consider only the statutory aggravating
and mitigating factors in deciding penalty. (CALJIC No. 8.85.) “The trial court
was not required to furnish an instruction exhorting the jury to refrain from
considering factors which, under a reasonable understanding of the jury
instructions, it should have known were improper to consider.” (People v. Welch
(1999) 20 Cal.4th 701, 766; accord, People v. Brown (2003) 31 Cal.4th 518, 566;
Carter, supra, 30 Cal.4th 1166, 1223-1224.)

31 The proposed instruction read as follows: “In deciding whether death or
life imprisonment without the possibility of parole is the appropriate sentence, you
may not consider for any reason whatsoever the deterrent or non-deterrent effect
of the death penalty or the monetary cost to the state of execution or of
maintaining a prisoner for life.”

61
 4. Instructions Highlighting Mitigating Factors
As set forth below, the trial court declined to give several one-sentence
instructions that defendant requested concerning factors he viewed as particularly
mitigating at the penalty phase. However, a capital defendant‟s right to present
relevant mitigating evidence, and to urge its consideration by the jury, does not
encompass “a concomitant right to instruction on particularized mitigation.”
(People v. Cox (1991) 53 Cal.3d 618, 676.) In other words, the court need not
present a partial list of potential mitigating factors or otherwise identify certain
evidentiary matters as extenuating. (People v. Howard (1988) 44 Cal.3d 375, 442
[reasoning that such instructions do not illuminate “the legal standards at issue”].)
Also, to the extent proposed instructions would have directed the jury to
consider “all evidence in mitigation from whatever source,” they merely duplicate
standard instructions given at the penalty phase. (People v. Jones, supra, 54
Cal.4th 1, 83; accord, People v. Gonzales (2012) 54 Cal.4th 1234, 1297; People v.
Lenart (2004) 32 Cal.4th 1107, 1135.) Specifically, CALJIC No. 8.85, given here,
allows the jury to consider any extenuating circumstance of the crime, even if not
a legal excuse for the crime, and any sympathetic or other aspect of defendant‟s
character or record he offered as a basis for a sentence less than death. (See
§ 190.3, factor (k); People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10.)
Thus, the court in this case did not err by declining to instruct the jury on
the following points: (1) “the effect of defendant‟s execution on his family and
friends” (see, e.g., People v. Lee (2011) 51 Cal.4th 620, 656-657 & fn. 21), (2)
“defendant‟s potential for rehabilitation and leading a useful and meaningful life
while incarcerated” (see, e.g., People v. Catlin (2001) 26 Cal.4th 81, 173), (3) the
“exercise [of] mercy on behalf of the defendant” (see, e.g., Butler, supra, 46
Cal.4th 847, 875), (4) “any lingering doubts” about defendant‟s guilt (see, e.g.,
Boyer, supra, 38 Cal.4th 412, 487, and (5) the lack of evidence that “defendant has

62
been convicted of any prior felony” (see, e.g., People v. Jones (2003) 30 Cal.4th
1084, 1124).

C. Constitutionality of Death Penalty Law
Defendant raises various challenges under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the validity of the statutory scheme under which he
was sentenced to death. He does so to preserve the same issues for federal review.
(See People v. Schmeck (2005) 37 Cal.4th 240, 303-304 & fn. 22.) Defendant
acknowledges that we have rejected these claims before. We do so again here.
The homicide and death penalty statutes adequately narrow the class of first
degree murderers eligible for the death penalty. The statutory scheme is not
overbroad or arbitrary in this regard. (Boyer, supra, 38 Cal.4th 412, 483.)
Section 190.3, factor (a) (the circumstances of the capital crime) is not so
broad as to be applied in a wanton or freakish manner. (People v. Garcia (2011)
52 Cal.4th 706, 763.) Nor is factor (b) of the same statute (the defendant‟s other
violent criminal activity) irrational or invalid insofar as it permits consideration of
unadjudicated crimes. (People v. Beames (2007) 40 Cal.4th 907, 934.)
The death penalty law does not lack adequate safeguards insofar as it does
not require written findings either beyond a reasonable doubt or by any other
standard or burden of proof that an aggravating circumstance has been proved
(other than factor (b)), that the aggravating factors outweigh the mitigating factors,
or that death is the appropriate penalty. (People v. Avila (2009) 46 Cal.4th 680,
724.) Likewise, the jury need not be told that there is no burden of proof at the
penalty phase. (People v. McKinnon (2011) 52 Cal.4th 610, 697-698.)
Nor are the statute and related standard instructions flawed in not
demanding juror unanimity on any aggravating factor, including factor (b), and in

63
not authorizing a presumption favoring the imposition of a life sentence.
(DePriest, supra, 42 Cal.4th 1, 60.)
For reasons we have explained above, and which need not be repeated here,
we reject defendant‟s broad attack on standard instructional language in CALJIC
No. 8.88 concerning the weighing of aggravating and mitigating factors and the
appropriateness of a death sentence. (McKinzie, supra, 54 Cal.4th 1302, 1361.)
Use in the sentencing factors of such adjectives as “extreme” (§ 190.3,
factors (d), (g)) and “substantial” (id., factor (g)) does not create an improper
barrier to the consideration of mitigating evidence. (People v. Morrison (2004) 34
Cal.4th 698, 730.) An instruction was not required as to which sentencing factors
are aggravating, which are mitigating, and which could be either mitigating or
aggravating. Also, language in CALJIC No. 8.85 to consider “[w]hether or not”
certain mitigating factors were present did not impermissibly suggest that the
absence of such factors was aggravating. (People v. Jones, supra, 54 Cal.4th 1,
87.) Nor must the trial court delete any inapplicable mitigating factors from
CALJIC No. 8.85. (People v. Cook (2006) 39 Cal.4th 566, 618.)
The death penalty law need not provide comparative or intercase
proportionality review. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067.)
Neither does a judgment of death under the statutory scheme violate international
law. (Id. at p. 1066.) There is no equal protection violation insofar as the
statutory scheme fails to provide capital defendants certain procedural guarantees
afforded to noncapital defendants. (Fuiava, supra, 53 Cal.4th 622, 732.)

D. Cumulative Error and Prejudice
Defendant contends that the combined effect of the guilt and penalty errors
asserted on appeal requires reversal of the entire judgment even if no error is
prejudicial on its own. For reasons we have explained, any errors we have found

64
or assumed at either phase of trial were harmless under any applicable standard.
Any conceivable cumulative prejudicial effect does not establish that defendant
was denied due process of law or a fair trial. Therefore, the claim lacks merit.
VI. DISPOSITION
The judgment is affirmed in its entirety.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

65
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Contreras
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S058019
Date Filed: December 12, 2013
__________________________________________________________________________________

Court: Superior
County: Tulare
Judge: Patrick J. O‟Hara

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Denise Anton,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Christina Hitomi
Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Denise Anton
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Christina Hitomi Simpson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-1213