People v. Pineda

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
SANTIAGO PINEDA,
Defendant and Appellant.

S150509

Los Angeles County Superior Court
NA061271

June 27, 2022

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Kruger, Groban, Jenkins,
and Guerrero concurred.

Justice Liu filed a concurring opinion.
 PEOPLE v. PINEDA
S150509

Opinion of the Court by Cantil-Sakauye, C. J.

Defendant Santiago Pineda was convicted in Los Angeles
County Superior Court of the murders of Rafael Sanchez (also
known, and referred to at trial, as Juan Armenta) and Raul
Tinajero. (Pen. Code, § 187, subd. (a).)1 Special circumstance
allegations that the murder of Sanchez occurred during the
commission of a robbery (§ 190.2, subd. (a)(17)), that the murder
of Tinajero involved the killing of a witness (id., subd. (a)(10)),
and that defendant had been convicted of multiple murders (id.,
subd. (a)(3)) were found true. At the penalty phase of trial, the
jury returned a sentence of death.
On appeal, defendant asserts that a juror was improperly
excused for cause, evidence was wrongly admitted, and other
errors were committed at his trial that, individually and
collectively, require reversal of the judgment. We affirm the
judgment in its entirety.
I. FACTS
A. Guilt Phase
The prosecution’s theory of the case was that defendant,
accompanied by Tinajero, killed Sanchez in the early morning
hours of March 7, 2002, by running him over with a car.
Defendant was charged with Sanchez’s murder. Tinajero then

1
All subsequent undesignated statutory references are to
the Penal Code.

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testified at defendant’s trial, pursuant to a grant of immunity
from prosecution. That trial resulted in a mistrial after
defendant’s attorney fell ill. Defendant and Tinajero were both
housed at the Men’s Central Jail in Los Angeles as defendant
awaited retrial. On April 20, 2004, defendant — who was
supposed to be kept away from Tinajero — gained access to
Tinajero’s cell and choked him to death.
1. People’s Case
a. Killing of Rafael Sanchez
With Tinajero being unavailable to testify, his testimony
at the previous trial was presented to the jury. (See Evid. Code,
§ 1291, subd. (a)(2).)2 Tinajero’s prior testimony described the
events of March 6 and 7, 2002, as follows.
On March 6, Tinajero and defendant were passengers in a
car being driven by defendant’s friend. Tinajero, who was
18 years old at the time, had been defendant’s neighbor for
years. While they were stopped at an intersection, defendant
engaged in a conversation with Sanchez, who was driving a
nearby vehicle. Tinajero had never met Sanchez before, and to
his knowledge, neither had defendant. Sanchez was driving a
white Infiniti; Tinajero thought he looked drunk. Defendant
reached out of his vehicle to hand a bottle of tequila to Sanchez,
who took a drink from the bottle and then returned it.
Tinajero, defendant, and defendant’s friend then drove to
defendant’s house in Wilmington, which was on a street that
intersected with another street named Blinn. Sanchez followed
in his Infiniti. The four men hung out in front of defendant’s

2
At the time he testified, Tinajero was in custody for forgery
and driving a vehicle without permission.

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house for a while. Tinajero, Sanchez, and defendant eventually
decided to go to Long Beach to “pick up some girls.” They left
together in Sanchez’s Infiniti, with Sanchez driving.
On the way, the men stopped at a house where defendant’s
cousin joined them in the car. After driving more, Sanchez
stopped the car in an alley, where he, defendant, and
defendant’s cousin all exited the vehicle to urinate.3 Defendant
and his cousin then ran back to the Infiniti and drove away,
stranding Sanchez.
Defendant drove the Infiniti back to Wilmington and
parked the car a block away from his house. Defendant, his
cousin, and Tinajero proceeded to defendant’s house. Sanchez
returned, now driving a Honda. Sanchez wanted his Infiniti
back and seemed upset. Defendant falsely said that the vehicle
was in Long Beach and told Sanchez he would help him find it.
Sanchez, defendant, and Tinajero then left together in the
Honda, with Sanchez driving.
At some point, Sanchez stopped the Honda at his sister’s
house and went inside. Defendant and Tinajero did not join him.
When Sanchez was inside the house, defendant told Tinajero
that he intended to choke Sanchez and steal the Honda, too.
Defendant asked Tinajero to participate, but Tinajero declined,
saying he did not want to be involved. Tinajero and defendant
changed positions in the car, with defendant moving from the
front seat to the backseat and Tinajero moving forward.
After Sanchez returned, he drove his passengers around
to find the Infiniti. Defendant and Tinajero pretended to look

3
Tinajero testified that he and defendant had been
drinking that day, with each of them consuming about six beers.

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for the vehicle. Sanchez eventually stopped the Honda in
Palmer Court, an alley in Long Beach. Defendant reached
around the driver’s headrest and started to choke Sanchez.
Sanchez did not resist. Once it appeared that Sanchez had
passed out, defendant opened the driver’s door from the inside
and threw Sanchez out of the car, onto the ground. Defendant
then hopped into the driver’s seat. Driving short distances
forward and backward, he ran over Sanchez several times.
Defendant and Tinajero took the Honda back to
Wilmington. There, the two men switched back to the Infiniti
they had previously taken from Sanchez. With defendant now
driving the Infiniti, they returned to Palmer Court. Defendant
told Tinajero he wanted to “go check it out.” When they arrived,
defendant, driving fast, ran over Sanchez once again. Tinajero
was unsure whether defendant had seen Sanchez before striking
him.
The fire department arrived at the scene while defendant
and Tinajero were still in the alley. Defendant maneuvered the
Infiniti so the fire engine could pass and then drove a short
distance away. He parked the car and walked back to the alley
with Tinajero. They saw the fire department attending to
Sanchez. Defendant and Tinajero then returned to the Infiniti
and drove away, intending to return to Wilmington. Before they
could go far, they were pulled over by police and taken into
custody.
When in custody after his arrest, Tinajero told police that
defendant had not run anyone over. More than a week later,
after he had been released and police came to his house to speak
with him, Tinajero confessed to his and defendant’s involvement
in Sanchez’s death.

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Other witnesses also testified regarding the events
leading to Sanchez’s death and the investigation that followed.
Eduardo Quevedo, Sanchez’s close friend, testified that
Sanchez had come to his apartment at around 11:00 p.m. on
March 6, 2002. Sanchez was with two other men, one of whom
Quevedo identified in court as defendant. They arrived in
Sanchez’s Infiniti. Quevedo noticed that Sanchez was drunk.
Sanchez declined Quevedo’s offer to take him home and left
along with defendant and the other man.
About a half-hour later, Sanchez returned on foot.
Quevedo asked what had happened. Sanchez said he had been
beaten up and that the men he was with had taken his car.
Sanchez seemed upset. Quevedo tried to talk Sanchez into going
home, but Sanchez told him to drive to an automobile repair
shop where he worked. Quevedo dropped Sanchez off at the
shop and parked nearby to see what Sanchez would do. He
noticed Sanchez drive off in a Honda. Quevedo tried to follow
Sanchez, but was unsuccessful. When returning home, at some
point Quevedo saw Sanchez’s Infiniti pass by “really fast.” He
was unable to see who was driving.
Sanchez’s sister, Patricia Armenta, testified that Sanchez
visited her home in Long Beach at 1:30 a.m. on March 7, asking
for something to eat. He seemed angry, and said that his car
had been stolen and that he knew who had done it. Sanchez told
her that the culprits lived in Wilmington on Blinn Street. He
added that he was going to go to where those people were
located. Sanchez was at Armenta’s house for 10 or 15 minutes.
Before leaving, he said he had some people with him he was
going to drop off.

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Virginia Ramos and David Rodriguez testified that they
were living on Palmer Court at the time of Sanchez’s death.
Ramos recalled that she was up early during the morning of
March 7 to get some milk for her daughter when she looked out
her kitchen window and saw a dark-colored car parked outside.
Normally no car would be parked there at night. Rodriguez also
saw a small dark car with a few people around it. Between
15 minutes and a half-hour later, their dog barked. Rodriguez
went outside. The car was gone, and there was a man crawling
on the ground. The man was moaning, and Rodriguez thought
he might be drunk, or that he might have been beaten.
Rodriguez returned to his residence to call an ambulance and
then went back outside. Five or ten minutes later, a small white
car turned into the alley, traveling at a speed that Rodriguez
estimated as 25 to 30 miles an hour. Rodriguez was quite sure
the car had its lights on. Rodriguez went inside because he did
not want to see the man in the alley get hit. Ramos and
Rodriguez heard two thumps. They both watched as the white
car passed by their home. The vehicle then made a three-point
turn and headed the other way. Ramos called 911, reporting
that the man Rodriguez had called about earlier had since been
run over by a car. Rodriguez saw the white car become
temporarily blocked in the alley by an arriving fire engine, and
then leave the scene.
Fire department personnel testified that at approximately
1:50 a.m. on March 7, they responded to a report of a staggering
man on Palmer Court in Long Beach. Their progress into the
alley was blocked by a white vehicle, with two male Hispanic
passengers inside. The vehicle had some damage to its front end
and a broken windshield. The white vehicle was maneuvered
into a parking area so that the truck could pass. The fire captain

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provided a description of the vehicle to dispatch. Sanchez was
found on the east side of Palmer Court, approximately 150 to
200 feet from its north end. He was in critical condition, lacked
a pulse, and was not breathing. Sanchez never regained a pulse
or resumed breathing.
A City of Long Beach police officer testified that he
received a call early in the morning of March 7 regarding an
injured pedestrian on Palmer Court. He was advised that the
person might have been hit by a vehicle. A description of the car
and the suspects was provided. The officer saw a car matching
this description half a block from Palmer Court. The car did not
have its headlights on. The officer followed the car for a while,
then pulled it over. The vehicle was a white 1992 Infiniti G20
with two occupants: defendant and Tinajero. The officer
detected a scent associated with alcoholic beverages when he
spoke with defendant. Fire department employees who had
placed the call identified the vehicle as the one they had seen at
the scene of the incident.
An accident investigator for the Long Beach Police
Department testified that he responded to Palmer Court early
in the morning of March 7. From his investigation, he concluded
that Sanchez had been struck once by a vehicle traveling
southbound along Palmer Court. He testified that although the
Infiniti had damage to its front bumper and windshield, this
damage appeared to have been older and not caused by a recent
collision. An examination of the underside of the Infiniti
revealed fresh damage to a corner of the oil pan and scrape
marks along the undercarriage. The damage was consistent
with the vehicle having something lodged against it and
dragging it along the pavement. From these observations, it was
the investigator’s opinion that Sanchez had been lying flat on

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the ground at the time of impact. The investigator estimated
the speed of the vehicle at the time of impact as approximately
30 to 35 miles per hour.4 A sample of red liquid recovered from
the underside of the Infiniti subsequently tested positive for
human blood and returned a one-in-564-trillion match with
Sanchez’s DNA.
A coroner’s office medical examiner testified that Sanchez
died from multiple traumatic injuries resulting in blood loss and
loss of vital functions. Sanchez’s injuries included general
abrasions, going in different directions, to the right side of his
body; abrasions on his face; nine fractured ribs; a fractured right
clavicle; bilateral fractures to the front of his pelvis; and
lacerations to his lungs, liver, pancreas, bladder, and prostate.
Sanchez had no brain trauma. Sanchez also had a fractured
hyoid bone in his neck and hemorrhages in the sclera of his eyes,
injuries consistent with strangulation. Sanchez had no illegal
drugs in his system, but postmortem tests returned an elevated
blood alcohol level. In the examiner’s opinion, based on the
injuries Sanchez received, including the multidirectional
abrasions found on his body, he had been run over more than
once. On cross-examination, the witness testified it was possible

4
The Honda taken from Sanchez was recovered a few days
later by Miguel Aranda, Sanchez’s employer at the automobile
repair shop. Aranda was not aware that the vehicle had been
involved in a crime and did not pay attention to whether there
was any damage to its body or windows. The vehicle was
impounded by law enforcement two months later, after a repair
had been made to it. A subsequent search of the vehicle yielded
no trace evidence of it having been used to roll over someone.
The responsible investigator testified that the undercarriage of
the vehicle “was very clean,” which was unusual for a vehicle
that had traveled more than 80,000 miles.

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the abrasions could have been caused by a body tumbling as it
was being moved along the ground.
b. Killing of Raul Tinajero
On March 11, 2002, defendant was charged with vehicular
manslaughter (§ 192, subd. (c)(3)), driving under the influence,
causing injury (Veh. Code, § 23153, subd. (a)), and leaving the
scene of an accident (Veh. Code, § 20001, subd. (a)) in connection
with Sanchez’s death. Defendant pleaded not guilty to these
charges. Tinajero testified at the preliminary examination. The
one count information filed by the prosecution after the
preliminary examination alleged that defendant had murdered
Sanchez (§ 187, subd. (a)). Tinajero then testified at defendant’s
trial, which resulted in a mistrial after defendant’s attorney
became ill. As explained below, Tinajero was killed before a
retrial could occur.
In April 2004, defendant and Tinajero were housed in
separate areas of the Men’s Central Jail in Los Angeles.
A directive that defendant and Tinajero be kept apart was in
place.
Three of Tinajero’s cellmates in cell D13 at the jail testified
at trial. This cell was at the end of its row in the 2200 module,
on the jail’s 2000 floor. Its interior was not visible to jail guards
when they were positioned at the cell module’s officer station.
The first cellmate to testify was Anthony Sloan, who was
in custody on kidnapping charges at the time of the killing.
Sloan related that on April 20, 2004, defendant came into the
cell along with another cellmate, who was returning from a
parole hearing. Sloan recognized defendant from prior
interactions and asked him what he was doing. Defendant said
that “Raul” was his “crimee” — meaning he was involved in the

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same criminal case as defendant — and was going to testify in
the case. Defendant went to the upper bunk where Tinajero was
sleeping, jumped into position, and placed Tinajero into a
headlock. Tinajero struggled to break free, but could not escape
the hold. At some point, defendant told everyone else in the cell
to look away. Tinajero stopped moving. Defendant stuck
Tinajero’s head in the cell’s toilet for a few minutes, then threw
his body on the floor and began to stomp on it. Sloan heard a
loud popping or snapping noise as defendant stomped on
Tinajero. Defendant then tied something around Tinajero’s
neck, put him on a mat, threw a sheet over him, and positioned
his body under a bed.
Afterward, defendant cleaned up the cell and made phone
calls using a phone in the cell. Sloan heard defendant say, “Tell
them it’s a touch down.” Defendant then sent a note down the
cell row to obtain some cigarettes and a light. He told Sloan and
the other cellmates that Raul had testified against him, that
there had been a mistrial due to his attorney’s medical
condition, and that he had a “better chance” if Tinajero could not
testify again. Defendant wrote the names and booking numbers
of the remaining cellmates, as found on their jail-issued
wristbands, in a notebook he had. He told them, “You know
what time it is.” Sloan interpreted defendant’s statement as
meaning that he “would probably be the next one if [he] was
to . . . say anything.”
Jail personnel came by for a clothing exchange while
defendant was still in the cell after Tinajero’s death, but Sloan
was scared and said nothing to them. Later, when it was time
for an inmate transfer from the Men’s Central Jail to another
facility, the door to cell D13 opened and defendant left with
another cellmate. Sloan then called his attorney and his mother

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and told them what had happened.5 He did not report the killing
to deputies at the jail at that time, for fear of being labeled a
snitch. But later, when the cell door was opened as another
cellmate returned from a court date, Sloan and the other cell
occupants all exited the cell and told a deputy there was a “man
down” inside the enclosure.
Matthew Good, another of Tinajero’s former cellmates,
provided generally similar testimony. He related that
defendant came into the cell, found Tinajero asleep, and then
proceeded to choke him, dunk his head in the toilet, and jump
on his chest. Defendant positioned Tinajero’s body on a mat that
was then slid under a bunk, cleaned up the cell, used the phone,
and then, while hanging out in the cell, told another inmate that
the person he had killed intended to testify against him again.
Before leaving the cell, defendant recorded the other cellmates’
names and booking numbers in his notebook.
The third cellmate to take the stand, Gregory Palacol,
testified that as he was returning from a parole screening on the
morning of April 20, he encountered defendant in a waiting
room area within his module. Defendant asked Palacol what
cell he was in. When Palacol told him, defendant asked if there
was someone named “Smoky from West Side” in the cell. Palacol

5
Sloan’s mother testified that Sloan had called her from jail
on April 20, 2004. He told her that “one is here and one is gone,”
leading her to infer that there was a dead body in his cell. She
then called and spoke with Sloan’s attorney, Andrew Stein.
Stein, testifying upon Sloan’s waiver of the attorney-client
privilege, stated that Sloan had called him at around 3:30 p.m.
on April 20, 2004, “hysterical and almost in tears,” and told him
that a man had entered his cell, instructed him to turn around,
and killed one of his cellmates. Stein thereafter called the jail
to report what had occurred.

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said that he thought so. Palacol saw defendant pick up a
homemade cross on a string, tear the cross off, and put the string
in his pocket. When it came time for inmates collecting in the
waiting area to return to their cells, defendant followed Palacol
to cell D13. Tinajero was asleep in his bunk. Defendant sat on
the cell’s toilet bowl for a few minutes. He then placed Tinajero
in a headlock and pulled him off his bunk. Defendant had
Tinajero in a headlock for 10 or 15 minutes. At some point,
Tinajero stopped moving and appeared to have been rendered
unconscious. Defendant then put Tinajero’s head in the toilet,
with Tinajero’s face in the water and defendant’s knee behind
Tinajero’s neck. Defendant flushed the toilet. Defendant kept
Tinajero’s head in the toilet for a few minutes, then laid him on
the floor. Defendant next put his foot on Tinajero’s neck and
“started bouncing” on it.
Palacol testified that defendant subsequently dressed
Tinajero, put him on a mat, put a string around his neck, tore
off Tinajero’s wristband and flushed it down the toilet, slid his
body under a bunk, and cleaned up the cell. Afterward,
defendant made a few phone calls, then looked at magazines. As
had Sloan and Good, Palacol also testified about statements
defendant made after the killing. Defendant told him that
Tinajero had been brought down from state prison to testify
against him in an earlier murder case in which defendant had
killed someone and taken his car. Defendant said that getting
rid of Tinajero would be better for his case. Defendant left the
cell several hours later, incident to a prisoner transfer.
Similarly to Good and Sloan, Palacol testified that defendant
recorded the remaining cellmates’ names and booking numbers
before he left.

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Jail records showed that at 5:02 a.m. on April 20,
defendant was scanned into the inmate reception center, an area
where inmates gathered to be taken to court. He was scanned
out at 8:31 a.m., meaning he had not gone to court. Sometime
between 3:00 p.m. and 4:00 p.m. on April 20, defendant tried to
pass by officers who were supervising an inmate transfer line in
the jail’s 2200 module. Asked to identify himself and explain
where he was going, defendant said that he was visiting from
the jail’s 3000 floor to see his “cousin.” Defendant was searched
and directed back to his floor.
Jail deputies were alerted to Tinajero’s death by Good and
his other cellmates at around 4:20 p.m. on April 20. When
deputies responded to the cell, Tinajero’s body was found
underneath a bunk, on a mat, covered with a blanket. That
evening, a sheriff’s deputy visited defendant due to his status as
a known “keep-away” from Tinajero. The deputy took
defendant’s clothing, including his pants. The deputy saw what
he thought might be bloodstains on a pant leg. The deputy also
found a small notebook in defendant’s clothing. The phrases “El
Chingon” and “ES Wilmas,” and the names and booking
numbers of Sloan, Palacol, Good, and a fourth cellmate, Shad
Davies (who did not cooperate with the investigation into
Tinajero’s death and did not testify at trial), were all written
inside. So too was the text “RT,” near which appeared a number
that was one digit different from Tinajero’s booking number at
the jail. A search of defendant’s cell yielded transcripts of
Tinajero’s prior testimony, other court documents, and police
reports prepared in connection with the investigation regarding
Sanchez’s death. Two days later, a detective noticed a scratch
or scratches on defendant’s right hand during an interview.

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An investigator with the county coroner’s office who
arrived at cell D13 on the evening of April 20 estimated
Tinajero’s time of death as approximately 12:00 p.m. The
investigator noted bruising around Tinajero’s neck and
bloodstains around Tinajero’s mouth, chest, clothing, and legs.
There were also bloodstains on Tinajero’s boxer shorts but not
on his pants, leading the investigator to conclude he had been
redressed. The investigator noted a pattern on Tinajero’s neck
that was similar to the pattern on shoes worn by jail inmates.
Tinajero’s wristband was missing.
A medical examiner who performed an autopsy on
Tinajero’s corpse determined that he died from asphyxia due to
strangulation by ligature, although manual strangulation or an
arm hold could not be excluded as the cause of death. Tinajero
had abrasions to the front and back of his neck; bruises to his
neck, tongue, and upper back; blunt trauma to the neck;
hemorrhages to his front neck muscles; an abrasion on his left
shoulder; and minor abrasions on his right knee. Petechiae
(pinpoint hemorrhages) in Tinajero’s eyes and a fractured
cricoid, an area of cartilage just beneath his voice box, also were
consistent with strangulation. Blood was coming out of
Tinajero’s mouth, and there was dried blood on various parts of
his body, which could have come from his mouth or from the
abrasions around his knee.
A forensic serologist who performed DNA tests on the
blood found on defendant’s pants testified that it came from
Raul Tinajero, with a probability of one in 110 quadrillion that
someone else left the blood. The serologist also obtained DNA
profiles of four or more people from the ligature placed around
Tinajero’s neck. In addition to finding DNA consistent with

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Tinajero’s DNA profile on the ligature, the serologist determined
that defendant could have been one of the donors.
Two sheriff’s deputies testified concerning statements
defendant made to them. Jesus Argueta testified that sometime
between May 3 and May 6, 2004, defendant called him to his cell
and asked whether Argueta had heard “what happened.”
Argueta had grown up in the same neighborhood as defendant
and the two were acquaintances prior to defendant’s
incarceration. Argueta replied that he had not. Defendant
responded that he was being accused of killing his “crimee,”
further explaining that he and the crimee had committed a
murder together, and that “this fucker, he’s snitching on me, so
we had to get rid of him.” Now that the crimee was dead,
defendant said, “[T]hey’re going to have to offer [him] a deal”
because “they wouldn’t have shit on [him] now.” Argueta did not
take notes of the conversation, and did not report it to a superior
until several days had elapsed.
Josue Torres, another deputy sheriff, testified that on
May 3, 2004, he was escorting defendant back from court.
Defendant had previously a been a trusty, or helper, for Torres.
Defendant was smiling at Torres and told him, “Hey, Torres,
I did it,” elaborating that he had “killed the fool that snitched on
him.” Defendant told Torres that he had obtained approval to
“take care of his business” by showing appropriate “paperwork”
to the inmate who ran Tinajero’s floor at the jail. Defendant
further explained that he had procured a court pass belonging
to someone else, left his cell, and went to a central inmate
receiving station within the jail. When his wristband was
scanned there and found not to match his pass, defendant
apologized and left. But instead of going back to his cell,
defendant went to Tinajero’s. There, he saw Tinajero lying

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down. Defendant got on top of Tinajero and flipped him over.
Tinajero saw defendant and tried screaming for help.
Defendant started choking him. The two men struggled.
Defendant put Tinajero’s head in the toilet and, with his knee
atop Tinajero’s head, flushed the toilet to try to drown Tinajero.
Once defendant saw that Tinajero was not moving, he checked
for a pulse. Finding none, defendant cleaned up the area, taking
Tinajero’s wristband off and flushing it down the toilet. He also
took out his notebook and wrote down the names and booking
numbers of the other inmates in the cell. To make sure that
Tinajero was dead, defendant stomped on his chest to see if
there would be a reaction. There was not. He then stretched
out a plastic trash bag and tied it tightly around Tinajero’s neck.
Afterward, defendant waited in the cell until it was time for an
inmate transfer, at which time he went back to his assigned
cell.6
Other witnesses during the prosecution’s case-in-chief
testified regarding communications with defendant, incidents in
which defendant committed rules violations at the jail, how the
jail controlled and kept track of inmate whereabouts, and gang
activity at the jail and its relationship to the Tinajero killing.
Among this evidence, Irma Limas testified that she was
employed as a corporate receptionist in April 2004 when she
began to receive phone calls and letters from someone who
identified himself as “Santi” and “Chingon.” Limas told this
person her name was “Irma Gardea”; this name, and Limas’s
address and phone number, were written in the notebook found
in defendant’s possession shortly after Tinajero’s death. Santi,

6
When defendant subsequently took the stand, he denied
making the statements to Argueta and Torres.

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whom Limas never met in person during the course of their
communications, said that he was in jail on a “187” (the Penal
Code section for murder) for running over somebody. At some
point, Santi asked her to try to use her computer to determine if
someone named Raul, whom Santi “needed to get ahold of,” also
was in jail. Santi told Limas that Raul was a “clown” who was
testifying against him. Limas did not comply with the request,
but Santi later told her that a friend or “homie” of his had
obtained the information for him. Santi also told Limas that he
had obtained a wristband from another inmate in an attempt to
escape. Limas authenticated letters and a card sent to her from
“Chingon Santi” or just “Chingon.” Another letter to Limas,
signed “Santiago Pineda Hernandez Chingon,” provided that it
was “from the Big Bad Ass ES Wilmas,” which Limas testified
was a gang.
Testimony from other witnesses delved into the policies,
practices, and procedures that were in place at the Men’s
Central Jail at the time of Tinajero’s death. This testimony
addressed, among other subjects, the extent to which possession
of a court pass could enable an inmate to move freely around the
jail. A sheriff’s deputy testified that if an inmate wanted to get
from his own cell to another area of the jail, he could leave his
module using a court pass that might be obtained from another
inmate. If an inmate went to the jail’s inmate reception center
with a pass, and it was at that time discovered that he was not
going to court, he would be told to return to his cell module. The
same deputy agreed with the assertion that once an inmate left
his floor with a pass, for the most part it was “really on the honor
system for them to go to the right location.” A majority of the
general population inmates with passes would not have been
handcuffed. Defendant, being housed in the general jail

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population on April 20, 2004, would not have been handcuffed
or escorted to different locations at that time, but instead would
have been subject to the honor system described by the deputy.
Upon arriving at a cell module, an inmate would have been
asked for his name and whether he lived in the module.
Wristbands or passes were generally not checked in these
situations to confirm an inmate’s identity.
A jail inmate and deputies also testified regarding a series
of incidents, occurring before and after Tinajero’s death, in
which defendant violated jailhouse rules by escaping from
secure facilities or areas, possessing contraband, and not
wearing his identifying wristband. Witnesses also testified
about gang influence and culture at the jail, especially as it
related to the role of gangs in sanctioning retaliation against
informants and whether gang members would rely on
nonmembers to administer such punishment. In his testimony
concerning gangs at the jail, one witness, Deputy Javier Clift,
was allowed to opine that defendant was a member of the
Sureño gang. Clift also testified regarding a letter he had
intercepted, in which defendant wrote, “I go to trial next month,
so I have decided to let my hair grow and with a clean shaved
face with some retarded glasses and a nice suit, the not guilty
look,” followed by a simple drawing of a smiling face. Clift’s
testimony regarding gangs and defendant’s gang membership,
as well as the other gang and misconduct evidence described in
this paragraph, will be discussed at greater length post, in
addressing defendant’s claims that this evidence was admitted
in error.

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2. Defense Case
A Long Beach police officer testified that he administered
a drug recognition evaluation on defendant after his arrest
during the early morning hours of March 7, 2002. From this
evaluation, the officer concluded that defendant was under the
influence of a central nervous system stimulant, cannabis, and
alcohol, and recommended that he be charged with driving
under the influence. Defendant told the officer that he had been
using methamphetamine and marijuana earlier that evening.
A breathalyzer test administered at the police station returned
a blood alcohol concentration of .05 to .06 percent.7 A criminalist
testified that a subsequent test of defendant’s urine returned
positive results for amphetamine, cannabinoids, and cocaine
metabolite. The urine sample also contained a quantity of
alcohol translating to a blood alcohol concentration of
approximately .08 percent; however, testing of a blood sample
taken from defendant returned no alcohol content.
Defendant took the stand on his own behalf. He testified
that he and Tinajero had been drinking and using drugs when
they met Sanchez. The three men went to defendant’s house
and drank some beer. They left to acquire more drugs.
Defendant acknowledged driving away and leaving Sanchez in
an alley, but testified it was just a trick or a gag. According to
defendant, Sanchez was already at defendant’s house when
defendant returned. Defendant told Sanchez that he had taken
his car just to play with him. The three men then left to continue

7
This officer was briefly recalled as the sole witness offered
by the People in rebuttal at the guilt phase.

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looking for drugs, with Sanchez driving a Honda that he had
brought to defendant’s home.
Defendant further testified that after stopping at the
house of Sanchez’s sister, the men went to Palmer Court to get
drugs. There were other people in the alley when they arrived.
After Sanchez began to speak with them, a fight broke out. As
the men in the alley were striking Sanchez, defendant drove off
in Sanchez’s car. Defendant went to a friend’s house in his
neighborhood, obtained a gun, and then returned to Palmer
Court in Sanchez’s Infiniti, leaving the Honda in Wilmington.
Defendant turned the Infiniti’s headlights off as he entered the
alley. As he was driving, defendant heard a “big bump” and then
noticed that something was being dragged by the car. He made
a U-turn and told Tinajero to open the door to see what it was.
It was Sanchez. Defendant denied intentionally hitting Sanchez
with the Infiniti. The fire department arrived before defendant
and Tinajero could take Sanchez to the hospital. Defendant,
being high and in the possession of a gun, drove off.
Defendant also denied killing Tinajero. He testified that
while in custody at the Men’s Central Jail, he had received
information that some people were going over to Tinajero’s cell.
Defendant tried to make sure nothing would happen to Tinajero,
and was told that nothing would occur that day, but heard that
“they couldn’t just leave him alone, they had to at least regulate
him.”8 Defendant went to Tinajero’s cell the next day because
he did not want anything to happen to him. Defendant believed
it would be worse for his case if Tinajero was harmed; and that,
in any event, no “regulation” of Tinajero had been properly

8
“Regulate,” in this context, means a beating administered
by other inmates.

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authorized. Tinajero, defendant testified, was already dead and
tucked under the bunk in his cell by the time defendant arrived.
Defendant acknowledged that he had made telephone calls from
Tinajero’s cell. Defendant explained that he feared being
blamed for Tinajero’s death, and so he felt he had to contact
people to do something.
The jury returned guilty verdicts on both counts and found
all special circumstances to be true. The case then proceeded to
a penalty phase.
B. Penalty Phase
1. People’s Case
The People’s witnesses at the penalty phase included
several sheriff’s deputies who testified about incidents offered
as section 190.3, factor (b) evidence, through which “criminal
activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use
force or violence” can be introduced into evidence for
consideration by the trier of fact. To the extent that defendant
argues this evidence should not have been admitted, the specific
proof involved will be described later in this opinion.9
Defendant does not challenge the introduction of evidence
offered at the penalty phase under section 190.3, factor (b)
regarding a jailhouse incident that took place on November 5,
2004. On that date, defendant (who by then was housed within
the jail’s high security module) was seen in his cell drinking

9
Defendant also admitted to having incurred a conviction
for grand theft auto, and the jury was advised at the penalty
phase that it could consider this conviction as an aggravating
circumstance if proved beyond a reasonable doubt. (See § 190.3,
factor (c).)

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pruno, an alcoholic beverage covertly brewed by inmates. When
deputies tried to take the pruno away, defendant, who appeared
to be intoxicated, said to one of them that for telling on him, he
would stab him when he least expected it. The deputy asked
defendant if he was threatening him; defendant replied that he
was. Defendant was noncooperative as deputies tried to remove
him from his cell. A Taser was deployed, but it was ineffective
due to the baggy clothing defendant was wearing. Eventually
defendant was handcuffed and removed from his cell. During
this process defendant was “thrashing about, using his legs, his
hips, his feet, anything” to frustrate his extraction. He spit on
a deputy and kicked a deputy in the leg.
Other witnesses at the penalty phase testified regarding
their relationships with Sanchez, whom they referred to as Juan
Armenta.
Eduardo Quevedo testified that he had known Sanchez for
eight years. Quevedo testified that Sanchez was a “nice person”
who “was always smiling,” would “always help everybody,” and
“never asked for anything back.”
Patricia Armenta, Rafael Sanchez’s sister, also returned
to the stand and testified that her brother was a year and a half
older than she was. He was “the best” brother and “a good
person” who “liked to help others.” He also was a good uncle to
her children. He would bring presents to other people to make
them happy. He was a mechanic and hoped to open his own
shop. When Sanchez saw that someone’s car was not working,
he would stop and help them; when someone’s car was broken
down on the side of the road, he would give that person a ride.
When Patricia Armenta was shown a photo of her brother after
his death, she “wanted to die.” She could only recognize his eyes

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in the photo. She related that she was “not the same person”
since her brother’s death.
Maria Armenta, Rafael Sanchez’s mother, testified that
she had learned on her birthday that her son had died. Her son
was a good person, a good father, a good brother, and a good son.
He was “the biggest thing” to her, “her pride.” She testified that
“wherever there was a person that needed help, he was there.”
Sanchez worked two jobs and lived with her after his wife and
daughter moved to Minnesota. Maria Armenta’s “life ended
together with his”; she was “finished.” By this, she meant that
her “life has no meaning as it had before.” She missed
“everything” about her son.
2. Defense Case
Several of defendant’s family members and a family friend
testified concerning the circumstances of defendant’s
upbringing and their relationships with him. Defendant’s
father was an alcoholic who would beat him with a belt, hose,
and other implements. Defendant started to work at his father’s
cabinet shop at a very young age. He sometimes worked into
the evening and on weekends, leaving little time for play.
Defendant’s father encouraged him to fight and was proud of his
son when he fought back against others. Defendant would use
money he earned working to help his family pay bills or to buy
them shoes and clothes. The testimony from defendant’s family
members also touched upon defendant’s drug use, which
included the abuse of heroin and cocaine.
The defense presented additional witnesses to support its
mitigation case. Three teachers at defendant’s elementary
school testified regarding their interactions with him. Adrienne
Davis, a clinical psychologist, testified that several factors,

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Opinion of the Court by Cantil-Sakauye, C. J.

including a father with a substance abuse problem, poverty,
early exposure to drugs and alcohol, family instability, abuse at
the hands of a parent, attention deficit hyperactivity disorder,
and a lack of socialization opportunities may have predisposed
defendant to commit, or contributed to his involvement in, the
charged crimes. Davis opined that defendant also lacked a
positive role model whose influence might have offset the impact
of these factors. A correctional consultant, James Esten,
testified regarding defendant’s possible custodial environment
if he were sentenced to life without the possibility of parole.
3. People’s Rebuttal
In rebuttal, the jury heard testimony from Luis Puig, a
Department of Corrections and Rehabilitation employee,
regarding why defendant would not necessarily be placed in one
of the facilities Esten had described and about the differences
between the conditions of confinement for prisoners sentenced
to life without the possibility of parole and prisoners sentenced
to death.
The People presented evidence that contraband was found
in defendant’s legal mail during a search of defendant’s cell
occurring on December 29, 2006. The jury also heard testimony
regarding an incident at the jail on January 4, 2007 (after the
commencement of the penalty phase), in which defendant was
found to have in his possession sealed personal letters within an
envelope marked “legal mail.” It was a violation of jail rules for
defendant to be in possession of sealed personal correspondence.
Deputy Clift was recalled to the stand and testified regarding
the contents of the letters seized from defendant at that time.
After retiring to deliberate at the penalty phase, the jury
sent a note to the trial court asking how to proceed because it

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Opinion of the Court by Cantil-Sakauye, C. J.

was not unanimous regarding one of the counts. Returning to
the courtroom, the jury rendered a verdict of death for the
murder of Raul Tinajero (count two). After further dialogue
with the court, the jury resumed its deliberations regarding the
other count. Two days later, the jury returned a verdict of death
on count 1, the murder of Rafael Sanchez. The trial court
subsequently denied a defense motion for a new trial as well as
the automatic motion for reduction of the penalty from death to
life imprisonment without the possibility of parole. (§ 190.4.)
II. DISCUSSION
A. Pretrial Issues
1. Excusal of Juror for Cause
Defendant argues that the trial court violated his rights
under the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and article I, sections 7, 15, 16, and
17 of the California Constitution when it excused Prospective
Juror J.W. for cause. The trial court granted the People’s
request to dismiss J.W. from service, finding him “disqualified
both on the general circumstances of the answers that he’s given
and on his penalty phase answers.” We find no error.
a. Facts
Prospective Juror J.W. was excused for cause after
completing a juror questionnaire and undergoing voir dire with
the trial court and counsel.
i. Juror Questionnaire
J.W. expressed inconsistent views in his questionnaire
responses.
Some of J.W.’s responses indicated he would refuse to vote
to convict defendant if doing so would make defendant eligible

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for the death penalty and that he would never under any
circumstances vote for the death penalty. After describing the
allegations against defendant, the questionnaire asked, “No
matter what the evidence shows, would you refuse to vote for
guilt as to first degree murder or refuse to find the special
circumstances true in order to keep the case from going to the
penalty phase, where death or life in prison without the
possibility of parole is decided?” J.W. responded, “yes.”
Meanwhile, J.W. responded “no” to the question, “Given the fact
that you have two options available to you, can you see yourself,
in the appropriate case, rejecting life imprisonment without the
possibility of parole and choosing the death penalty instead?”
Conversely, other answers to questions posed in the juror
questionnaire indicated that J.W. was prepared to consider the
death penalty as a sentencing option. J.W. answered “no” to the
question, “If the jury found a defendant guilty of intentional first
degree murder and found a special circumstance to be true,
would you always vote against death, no matter what other
evidence might be presented at the penalty hearing in this
case?” When asked whether he thought death or life without the
possibility of parole was a worse sentence for a defendant, J.W.
circled the latter option, explaining, “boring with no life.” J.W.
strongly agreed with the statement, “Anyone who intentionally
kills another person should always get the death penalty,”
adding, “an eye for an eye,” and he strongly disagreed with the
statement, “Anyone who intentionally kills another person
should never get the death penalty.”
Among his other written responses to questions
concerning the death penalty, J.W. answered, “only God has the
right” to the question, “What is the view, if any, of your religious
organization concerning the death penalty?” J.W. responded

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with a “Yes” to a follow-up question inquiring if he felt obligated
to accept that view, explaining, “same as above.” As among
“strongly in favor,” “moderately in favor,” “strongly against,”
“moderately against,” or “neutral,” J.W. described his
philosophical opinion regarding the death penalty as “neutral.”
Where the questionnaire inquired whether he felt the death
sentence was imposed “too often,” “too seldom,” “randomly,” or
“about right,” J.W. circled “about right,” adding, “hard to take a
life.” In response to a question asking if he had thought about
whether he was for or against the death penalty before coming
into court, J.W. circled “yes,” with the explanation, “having to
judge the right or the wrong.” And J.W. responded with a “no”
to a question asking whether his opinion about the death
penalty had changed over the years.
Some of J.W.’s other responses to questions posed in the
questionnaire, although not directly concerned with the death
penalty, would also become the subject of probing by counsel and
the court in subsequent voir dire:
• J.W. responded “no” to the question, “Can you set aside
any sympathy, bias, or prejudice you might feel toward any
victim, witness, or defendant?” and provided the explanation,
“you need to be honest.”
• He responded “no” to the question, “Will you consider
along with all of the other evidence presented, the testimony of
an unavailable witness (for example, one who is too ill to come
to court) whose prior testimony is read to you?” In response,

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Opinion of the Court by Cantil-Sakauye, C. J.

J.W. explained, “[I]t’s hard to except 2nd hand information.”10
Yet J.W. also answered “no” to the question, “Will you
automatically reject the testimony of an unavailable witness
merely because the actual witness is not present[?]”
• He answered “yes” to the question, “If you believed that
it was wrong for the prosecution to ask the Court to grant
immunity from prosecution or to give special consideration in
another case in exchange for a witness testifying here, would
you hold that against the prosecution and refuse to convict even
if shown the defendant is guilty[?]” He explained, “If you have
committed a crime, there should be immunity.”11
J.W. also responded “yes” to the question, “The testimony
of a single witness is sufficient to prove any fact if you believe
the witness. Would you require more proof if you believe the
witness is telling the truth?” His questionnaire response
elaborated, “I need to be sure.” He answered “no” to the
question, “During deliberations, it is the obligation of every juror
to freely discuss the evidence and instructions with other jurors.
Will you agree to tell the Court if anyone refused to deliberate
with the rest of the jury?” Here, J.W. explained in the
questionnaire, “What is said in the room, stays in the room.”
In another questionnaire response, J.W. stated that he
could set aside his own beliefs and follow the law as the judge
gave it to him, even if the instruction was different from a belief

10
Here and elsewhere in this opinion, we will in most
instances repeat verbatim statements appearing in written
documents such as juror questionnaires and letters, without
making spelling or grammatical corrections.
11
It may be that J.W. intended to add the word “no” before
“immunity,” but failed to do so.

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 PEOPLE v. PINEDA
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or opinion that he held. When asked if there was “any reason
why [he] would prefer not to serve as a juror in this case,” J.W.
responded, “no.” He also responded “no” to the question, “Is
there any reason why you would not be a fair and impartial juror
for both the prosecution and the defense in this case?”
ii. Voir Dire
J.W. was questioned by the court and by counsel after he
completed his questionnaire.
The trial court first probed J.W. about his willingness to
consider certain kinds of evidence. When the court asked why
he answered “no” to the question, “Can you set aside any
sympathy, bias, or prejudice you might feel toward any victim,
witness, or defendant?” and about his explanation, “[Y]ou need
to be honest,” J.W. answered, “Oh, probably because of the
circumstances as to how the trial is going to be run, whether,
you know, if I try to set myself aside and say, okay, I think he’s
not guilty or he is guilty. [¶] I would have to have a little bit
more information as far as what I need to say or what I need to
do.” When the trial court inquired further and asked if J.W.
could base his decision about “what happened” on facts rather
than sympathy, bias, or prejudice, J.W. answered, “yes.” After
the trial court explained that as a juror, J.W. would have to try
to evaluate a witness’s prior testimony under oath as he would
the testimony of a live witness, J.W. said he could do so. And
following the trial court’s explanation regarding why a witness
might be granted immunity from prosecution, J.W. said he had
“no problem” with the idea of granting immunity to someone
who might then serve as a witness.
The trial court also asked J.W. several questions
regarding his views on the death penalty and their potential

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Opinion of the Court by Cantil-Sakauye, C. J.

bearing on his service as a juror. When asked what he meant
by his questionnaire response “an eye for an eye,” J.W.
answered, “Well, you know, I thought about that question, and
I had mixed emotions about it. And I wasn’t sure whether I have
the right to prosecute a person as an eye for an eye, and, you
know, I really didn’t know how to answer that question.” When
the court then inquired if J.W.’s answer meant he would
automatically vote for the death penalty if defendant was found
guilty of first degree murder, J.W. said, “no.” Regarding his
“neutral” view toward the death penalty, J.W. said he so
responded “because [he] was undecided” when he filled out the
questionnaire, but now, “in some of the cases, I — I think a life
sentence would be more — more to the liking on my side rather
than the death penalty.” The court followed up, “So you think
instead of like an eye for an eye, you commit murder, you should
be executed, you think the opposite? Even if you commit a
murder, you should get life without parole?” J.W. answered,
“Right.” Yet when asked by the court whether, at any penalty
phase, he would be “open to considering any aggravating and
mitigating circumstances, the good and the bad things about the
defendant . . . in making that decision” regarding sentencing or
whether he was “locked in to the decision of life without parole,”
J.W. answered that he could make a fair decision either way,
depending on the evidence.
When the trial court asked about J.W.’s questionnaire
response indicating that he felt obligated to accept the principle
that “[o]nly God has the right” to take a life, J.W. responded, “At
the time I answered that question, I had my mind fixed, but as
it turns out, if I were in the same predicament, I would want —
I would want to be tried fairly . . . .” When the trial court asked
J.W. to clarify what he was saying, J.W., repeated, “Well, if

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I was facing the same predicament and there was someone in
the jury, I would want him to judge me fairly.” When the trial
court asked what the relationship was between the sentencing
decision and being tried fairly, J.W. replied, “If it’s a death
penalty, I deserve to have death penalty, but if there’s some
circumstances in there that says, well, maybe I wasn’t totally
within my own faculty, you know, when I did something, then
I’m sorry I did it, but I did it anyway.”
After the court turned the questioning over to counsel,
J.W. responded affirmatively to questions by defense counsel
asking whether he would be open-minded to both sentencing
possibilities at a penalty phase, whether he could follow the
court’s instructions at a penalty phase, whether he could
evaluate defendant’s “background for what it is, make an honest
decision about it,” and whether he could be fair at both phases
of the trial.
When it was the prosecution’s turn to pose questions, J.W.
was asked, “Do you think, given all of your views about God and
not liking to sit in judgment of people, that you can be a juror in
this case?” J.W. responded, “Now that I think of it, yeah, I could.
We’ll all be judged some time, and we’ll be judged.” Upon being
requested to repeat his answer, J.W. said, “At some time in our
life or after life, we’ll all be judged, so if I make — if I make a
mistake now, I would be judged for it, but I will be forgiven,
okay? [¶] So now if I — if I said yes, I can abide by the death
penalty and then again I could say yes parole without the or —
I could honestly make an honest judgment at that time knowing
that what I say I may be forgiven for, whether I make the wrong
choice or not.” The prosecutor asked, “[A]re you going to be
concerned when you go in the jury room though that you’re going
to be forgiven when it’s your time for judgment?” J.W.

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answered, “Uh-huh.” The prosecutor followed up, “Are you
going to be worried about the fact that in your beliefs that it’s
the wrong decision?” J.W. replied, “No, no, I won’t be.” In
response to a similar question asking whether he could return a
penalty phase verdict of death, J.W. responded, “If all the
circumstances — now that I think about it, with all the
circumstances, if it pointed in that direction, yeah, I could.” J.W.
provided a similar response when the prosecutor asked whether
he would be able to look at the defendant and his family in court
and say that defendant deserves the death penalty.
The prosecutor challenged J.W. for cause at the close of
voir dire. She argued, “I know what he said here he thinks he
could do it . . . but throughout his paperwork he indicated there
is no way he could do it.” The prosecutor added that she felt
from J.W.’s responses during voir dire that he was answering
questions in a manner “he thought would keep him on” the
jury.12 Defense counsel disagreed, stressing J.W.’s repeated
averments that he could be fair and could return a death verdict.
The trial court allowed the challenge for cause and
dismissed J.W. from service. The court believed that J.W. had
“never explained to [him]” what wanting to be tried fairly meant,
adding, “The problem is he lists in the wind. He’s got in the
questionnaire as far as the penalty is concerned ‘an eye for an
eye,’ which would suggest you commit the crime of murder, you
are to be executed. [¶] On the other side, he says only God can
take a life. Then I’ve tried to clarify which it is, one extreme or

12
Although not directly referenced by the prosecutor in
making this argument, the record suggests that during voir dire
J.W. answered some questions in the affirmative even before the
attorney finished asking them.

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the other, and he has not made it clear which one it is. [¶] His
statement that he can be fair isn’t the final conclusion. [¶] He
is also so inexact in his answers. When he says to the question,
‘Can you set aside sympathy, bias or prejudice, you need to be
honest,’ and I asked him what the heck that means, and he
doesn’t give a valid answer to any of these questions. [¶] I think
he’s disqualified both on the general circumstances of the
answers that he’s given and on his penalty phase answers, and
I will allow the challenge.”
b. Analysis
Substantial evidence supports the excusal of J.W. for
cause. In light of the conflicts across J.W.’s questionnaire
responses and his answers to questions posed to him by the
court and counsel, as well as the nature of those answers, it was
within the trial court’s broad discretion to uphold the
prosecution’s challenge.
A prospective juror may be dismissed (i.e., excused from
service as a juror) for cause. (See Code Civ. Proc., § 228; People
v. Jenkins (2000) 22 Cal.4th 900, 987‒988.) Yet such a dismissal
may be based on a juror’s personal views regarding capital
punishment only if these “views would ‘prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath.’ ” (Wainwright v. Witt (1985)
469 U.S. 412, 424 (Witt).) It is “clear that prospective jurors may
not be disqualified from service simply because they object to the
death penalty as a general matter” (People v. Peterson (2020)
10 Cal.5th 409, 429) or because the prospective juror “might
‘impose a higher threshold before concluding that the death
penalty is appropriate’ ” (id., at p. 430). The standard for
dismissal for cause based on the juror’s views regarding the

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death penalty is instead whether, “after examining the available
evidence, . . . the trial court [is] left with a definite impression
that the prospective juror is unable or unwilling to faithfully and
impartially follow the law” as instructed by the court. (People v.
Thompson (2016) 1 Cal.5th 1043, 1066.) This rule
accommodates both the principle that a criminal defendant has
a “right to an impartial jury drawn from a venire that has not
been tilted in favor of capital punishment by selective
prosecutorial challenges for cause” and the state’s “strong
interest in having jurors who are able to apply capital
punishment within the framework state law prescribes. ”
(Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht).)
The legal standard for dismissing a prospective juror for
cause “does not require that a juror’s bias be proved with
‘unmistakable clarity.’ This is because determinations of juror
bias cannot be reduced to question-and-answer sessions which
obtain results in the manner of a catechism. What common
sense should have realized experience has proved: many
veniremen simply cannot be asked enough questions to reach
the point where their bias has been made ‘unmistakably clear’;
these veniremen may not know how they will react when faced
with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings.” (Witt, supra,
469 U.S. at pp. 424–425; see also People v. Beck and Cruz (2019)
8 Cal.5th 548, 607; People v. Martinez (2009) 47 Cal.4th 399, 426
[“[j]urors commonly supply conflicting or equivocal responses to
questions directed at their potential bias or incapacity to
serve”].)
When prospective jurors are questioned in person, a
reviewing court considering whether substantial evidence
supports a dismissal for cause generally must give deference to

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

the trial court’s determinations. (Uttecht, supra, 551 U.S. at
p. 7.) This deference recognizes that the trial court was “in a
position to assess the demeanor of the venire, and of the
individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.”
(Id., at p. 9; see also Witt, supra, 469 U.S. at p. 426 [“deference
must be paid to the trial judge who sees and hears the juror”].)
As we have explained, “ ‘ “ ‘[a] trial judge who observes and
speaks with a prospective juror and hears that person’s
responses (noting, among other things, the person’s tone of
voice, apparent level of confidence, and demeanor), gleans
valuable information that simply does not appear on the record.’
[Citation.]” [Citation.]’ [Citation.] For this reason, ‘ “[o]n
review of a trial court’s ruling, if the prospective juror’s
statements are equivocal or conflicting, that court’s
determination of the person’s state of mind is binding. If there
is no inconsistency, the reviewing court will uphold the court’s
ruling if substantial evidence supports it.” ’ ” (People v. Solomon
(2010) 49 Cal.4th 792, 830; see also Uttecht, at p. 7 [“when there
is ambiguity in the prospective juror’s statements, ‘the trial
court, aided as it undoubtedly [is] by its assessment of [the
venireman’s] demeanor, [is] entitled to resolve it in favor of the
State’ ”].)
With regard to the consequences of an erroneous dismissal
of a prospective juror for cause, although “ ‘[t]he general rule is
that, absent a showing of prejudice, an erroneous excusal of a
prospective juror for cause does not mandate the reversal of
judgment’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 866; see
also People v. Carpenter (1999) 21 Cal.4th 1016, 1037
(Carpenter); People v. Holt (1997) 15 Cal.4th 619, 656), if the
wrongful excusal for cause is premised on a prospective juror’s

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

views regarding the death penalty, a penalty phase verdict of
death cannot stand (Gray v. Mississippi (1987) 481 U.S. 648,
659).
As previously set forth, J.W. responded “yes” to the
questionnaire inquiry, “No matter what the evidence shows,
would you refuse to vote for guilt as to first degree murder or
refuse to find the special circumstances true in order to keep the
case from going to the penalty phase, where death or life in
prison without the possibility of parole is decided?” — and “no”
to the question, “Given the fact that you have two options
available to you, can you see yourself, in the appropriate case,
rejecting life imprisonment without the possibility of parole and
choosing the death penalty instead?” These responses were
suggestive of substantial impairment (see People v. Capistrano
(2014) 59 Cal.4th 830, 856‒857; People v. Riccardi (2012)
54 Cal.4th 758, 780‒782), but they were also in some tension
with other answers J.W. provided within the questionnaire.
The trial court then properly provided for in-person
examination of J.W. This questioning delved into topics
germane to the ultimate question of substantial impairment.
J.W.’s answers to some of these questions could have reinforced
concerns imparted by his questionnaire responses insofar as,
among other things, they entailed multiple reversals of positions
taken in his written answers (such as his affirmative response
to the trial court’s inquiry, “So you think instead of like an eye
for an eye, you commit murder, you should be executed, you
think the opposite? Even if you commit a murder, you should
get life without parole?”). The trial court could also properly
take into account the meandering and inconclusive nature of
J.W.’s responses to some of the questions that were posed to him
during voir dire. (See People v. Clark (2011) 52 Cal.4th 856, 900

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

[finding no error in trial court’s ruling that a juror who “gave
equivocal, conflicting, nonresponsive, and confusing answers
when asked about his ability to set aside his personal views and
follow the law,” after his questionnaire suggested his beliefs
would affect his penalty decision, was substantially impaired];
Carpenter, supra, 21 Cal.4th at p. 1036.)
Although in the course of voir dire J.W. also asserted that
he could be open-minded, follow the court’s instructions, and
review the evidence fairly, it was appropriate for the trial court
to evaluate the credibility of these and J.W.’s other answers.
The trial court’s comments that J.W. “lists in the wind” and that
J.W.’s “statement that he can be fair isn’t the final conclusion”
convey a critical assessment of the prospective juror’s credibility
during voir dire, including J.W.’s averments that he could
faithfully and fairly apply the law as instructed. Our review of
the record leads us to conclude that there was an adequate basis
for these credibility calls, and for the trial court’s accompanying
excusal of J.W. from service, notwithstanding the presence of
evidence that, if credited, could have led the trial court to draw
different conclusions. Even if J.W.’s impairment was not proved
to a degree of absolute certainty, as we noted earlier, that is not
the standard that applies here. (See Witt, supra, 469 U.S. at
pp. 424–425.)
At oral argument, defense counsel pressed the position
that the trial court conducted inadequate voir dire because it did
not directly inquire about J.W.’s “yes” response to the “No
matter what the evidence shows” question described above and
his “no” response to the “Given the fact that you have two
options available to you” question. In light of the significant voir
dire that did take place regarding topics germane to J.W.’s
impairment, we disagree that such a specific line of questioning

37
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

by the trial court was essential. This case is distinguishable
from People v. Woodruff (2018) 5 Cal.5th 697, People v. Stewart
(2004) 33 Cal.4th 425, and People v. Heard (2003) 31 Cal.4th
946, all of which were cited by counsel at oral argument. In
those matters, we found error in the excusal of prospective
jurors when the pertinent questionnaire responses indicated
only personal opposition to the death penalty (Woodruff, at
pp. 741‒742, 744), similar opposition to or qualms about the
death penalty and a belief expressed by the potential jurors that
their views toward the death penalty would prevent or perhaps
(due to the relevant question’s phrasing) merely make it very
difficult for them to vote to impose such punishment (Stewart,
at pp. 446–449), or “the view that imprisonment for life without
the possibility of parole represents a ‘worse’ punishment than
death” (Heard, at p. 964). The situation here is different in
important respects. Some of J.W.’s questionnaire responses
were more reflective of substantial impairment than the
responses in Woodruff, Stewart, and Heard were, and here
pertinent voir dire took place that, combined with J.W.’s
questionnaire responses, provided an adequate basis upon
which to make a credibility determination and a finding of
disqualification. In Woodruff and Stewart, by contrast, no voir
dire at all occurred. (Woodruff, at p. 742; Stewart, at p. 445.)
Voir dire did take place in Heard, but it “did not provide any
indication that [the prospective juror’s] views regarding the
death penalty would prevent or significantly impair him from
following the controlling California law” (id., at p. 964), leaving
the record in that case in a fundamentally different state than
the record in this matter.
Even though none of our prior cases involves facts
identical to those before us, our treatment of the excusal of a

38
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

prospective juror in People v. Phillips (2000) 22 Cal.4th 226 is at
least somewhat instructive. There, the possible juror provided
several equivocal responses in his questionnaire, “but he also
stated, ‘I will not vote to put any one to death.’ During voir dire,
when asked about this statement, he said, ‘I’m trying to get out
of it. No, I mean I would do the right thing if I was put on a jury.
I would do what the law says and . . . there’s just so much a
parameter you are going with.’ ” (Id., at p. 233.) The juror
“made a number of other equivocal and contradictory responses,
but ultimately responded, ‘It would be hard,’ when asked
whether he ‘could ever personally cast your vote to put him to
death.’ ” (Ibid.) When the prosecutor challenged the juror for
cause, the trial court stated that it “had ‘a lot of mixed feelings
about him.’ It could not ‘tell . . . whether he’s lying and whether
he isn’t, really.’ ” (Ibid.) Upon granting the motion, the court
said, “ ‘It’s just that this man is too far out. Maybe your [defense
counsel’s] description is correct, he’s a kind of a philosophical
[H]amlet. But whatever it is he’s not a reliable one.’ ” (Ibid.) On
appeal, we found no error, reasoning that “[b]ecause the juror’s
statements were equivocal and conflicting, we defer to the trial
court’s determination.” (Id., at p. 234.)
Our analysis of one of the juror excusals in People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335 (Bryant) also
provides a useful reference point. A prospective juror in that
case stated in her questionnaire that “she did not ‘believe in the
death penalty,’ or that California should have one,” that she
“would not ‘be able to vote for the death penalty on another
person if [she] believed, after hearing all the evidence, that the
penalty was appropriate,’ ” and that “she would ‘automatically,
in every case, regardless of the evidence, vote for life in prison
without the possibility of parole.’ ” (Id., at p. 401.) According to

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

the prospective juror, these had been her fixed views for at least
10 years. (Ibid.) During voir dire, the juror “stated that she did
not want to serve on the jury, but now believed that, despite her
religious views, she could vote for the death penalty ‘[i]f it was
required under the law.’ Although she initially stated that she
did not think she could be a fair juror because of the child victim
[in that case], when asked again whether she was biased, she
answered, ‘Okay, I could be fair.’ ” (Ibid.) The juror later added
“that although she still did not believe in the death penalty, she
could impose it in light of her ‘civic duty,’ but would not be
‘overjoyed’ in doing so.” (Ibid.) The trial court granted the
prosecution’s challenge of the prospective juror for cause,
finding her in-court statements “simply incredible in light of the
decisiveness of the opposite views she had expressed in her
questionnaire answers.” (Ibid.) Again, we found no error,
concluding that “[t]he trial court reasonably credited [the
prospective juror’s] answers demonstrating her impairment,”
and “[t]he fact that the prospective juror at times claimed she
believed she could perform her duties as a juror ‘did not prevent
the trial court from finding, on the entire record, that [she]
nevertheless held views . . . that substantially impaired her
ability to serve.’ ” (Id., at p. 402, quoting People v. Griffin (2004)
33 Cal.4th 536, 561.)
Acknowledging some differences between this case on the
one hand and Phillips and Bryant on the other, it is nevertheless
true that in each matter, the prospective juror gave an array of
responses to questions bearing upon his or her ability to serve
as a juror, some of which were indicative of substantial
impairment. In each case, the trial court engaged in voir dire —
indeed, here there was extensive voir dire — to determine
whether such impairment existed, and concluded that it did.

40
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

Having reviewed the record, we conclude here, as we did in
Phillips and Bryant, that it contains no basis for reversal. Even
though some of J.W.’s responses, if credited, indicated an ability
to properly discharge the duties of a juror, there was also
sufficient evidence of substantial impairment to support a
contrary determination. The trial court’s ruling being supported
by substantial evidence, we reject defendant’s claim of error in
the excusal of J.W. for cause.13
B. Guilt Phase Issues14
1. “Other Acts” Evidence
Defendant contends that the trial court committed
prejudicial error when it allowed the prosecution to introduce
evidence at the guilt phase of trial concerning incidents at the
Men’s Central Jail, occurring both before and after Tinajero was
killed, in which defendant: (1) had, at various times, a
sharpened piece of metal, a syringe, a razor blade, and an
altered paper clip in his possession; (2) obtained an identifying
wristband from an inmate who was leaving the central jail
facility by telling its owner he would be beaten if he did not
surrender it; (3) was on multiple occasions found traveling

13
Our resolution of this issue makes it unnecessary to decide
whether in finding J.W. “disqualified both on the general
circumstances of the answers that he’s given and on his penalty
phase answers,” the trial court may have properly dismissed
J.W. for cause for reasons unrelated to his views regarding the
death penalty.
14
Insofar as defendant ascribes prejudice at both the guilt
and the penalty phases of trial to asserted evidentiary errors
occurring at the guilt phase, our opinion addresses his
arguments relating to guilt and penalty under this heading, in
conformity with the parties’ briefing.

41
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

within the jail without his wristband, in contravention of jail
rules; and (4) escaped from a locked shower area within the jail.
Within this same claim of error, defendant also brings a more
general challenge to the admission of evidence regarding his
contacts with Irma Limas.
Defendant asserts that the admission of this evidence was
improper under Evidence Code sections 352 and 1101 and
violated his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. He
characterizes this evidence as unduly prejudicial and irrelevant
to any material issue at trial.
We find no reversible error. By neglecting to raise a
proper objection before the trial court, defendant failed to
preserve his argument insofar as it pertains to the majority of
Limas’s testimony — which does not implicate Evidence Code
section 1101 in any event, and amounted to proper proof of
defendant’s guilt. As for testimony regarding defendant’s
procurement of a wristband from another inmate, the incidents
in which he was found without his wristband, and his escape
from the shower area, all of this evidence was admissible, as the
trial court determined, because it tended to show that defendant
had sufficient knowledge of how to evade the jail’s security
measures to allow him to move relatively freely around a
supposedly secure jail environment. To the extent that the
admissibility of the other evidence described above may be less
clear, we conclude that any error by the trial court in allowing
its introduction when it did was harmless.

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

a. The Other Acts Evidence Introduced at Trial
Defendant asserts that evidence regarding the following
incidents should have been excluded pursuant to Evidence Code
sections 352 and 1101:
Possession of Contraband: The jury heard about three
searches of defendant’s cell that yielded items defendant was
not supposed to have in his possession. On May 13, 2003, during
a routine contraband search of a cell that defendant shared with
other inmates, a shank (a metal bar with one end sharpened to
a point) was found in a strap on a canvas bag. The bag was in
the area of the cell where defendant was bunking and contained
defendant’s belongings and letters addressed to him.
A subsequent search of defendant’s cell by sheriff’s deputies on
July 13, 2004 (after Tinajero’s killing, by which time defendant
was housed in a cell by himself) yielded a syringe and a razor
blade that had been removed from its casing.15 Finally, on June
17, 2005, an altered paper clip was found in defendant’s cell.
Sheriff’s deputies testified at the guilt phase that an inmate
could manipulate a modified paper clip to remove handcuffs, and
the use of paper clips to escape from handcuffs also was the
subject of testimony at the penalty phase.
December 2003 Escape Attempt: Luis Montalban testified
that while he was incarcerated at the Men’s Central Jail in
December 2003, defendant approached him and asked him for
his wristband. Montalban had been called to serve as a trusty

15
When testifying, defendant explained that he had the
razor blade to sharpen pencils. On cross-examination, the
prosecutor asked defendant whether the razor and the shank
also found in his possession could be used as stabbing weapons;
defendant acknowledged that they could.

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

at an outdoors location in West Hollywood, where he would have
significant freedom to move around. When Montalban refused,
defendant explained that Montalban would be “regulated” if he
did not surrender the wristband. Frightened, Montalban gave
his wristband to defendant. Defendant then left the jail in
Montalban’s place. Defendant’s plan was unsuccessful, and he
was returned by bus to the Men’s Central Jail. At that time, he
was found to be wearing Montalban’s wristband and had in his
possession a card that would allow him to be taken to West
Hollywood as a trusty.
This incident also was mentioned both earlier and later in
the trial. As previously noted, Irma Limas testified regarding
Chingon/Santi’s acknowledgment of an unsuccessful escape
attempt. And when he took the stand on his own behalf, on
cross-examination defendant admitted that he had tried to
escape from Men’s Central Jail using a wristband procured from
Montalban.
Not Wearing Required Inmate Wristband: On October 13,
2004, a deputy noticed that defendant was not wearing his
identifying wristband, as jail rules required. The deputy who
testified to this incident also recalled that defendant had
removed his wristband on another occasion a week earlier, at
which time he had been told not to remove it again. A month
later, on November 5, 2004, a sheriff’s deputy preparing inmates
to be taken to the showers noticed that defendant was not
wearing his wristband. The wristband was later found in
defendant’s cell.
Escape from Locked Shower Area: On July 30, 2005,
defendant escaped from a locked shower area in the high
security area of the jail. Shortly after deputies left him in the

44
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

shower area, defendant was spotted on closed-circuit television
running back to his cell. By the time deputies returned,
defendant was already in his cell. Defendant was covered with
a thick lather from head to toe and had a large red mark across
his back. Deputies enlisted another inmate to try to replicate
the escape. This inmate managed to get out of the shower area
by lathering himself with soap and crawling through an opening
within the shower enclosure.
Limas’s Testimony Regarding Her Contacts with
Chingon/Santi: Defendant also argues that the entirety of
Limas’s testimony regarding her contacts with Chingon/Santi —
including, but not limited to her description of Chingon’s escape
attempt — should have been excluded as inadmissible
propensity evidence.
b. Procedural Background
Prior to trial, the prosecution filed a motion in limine in
which it requested a ruling regarding the admissibility of
evidence pertaining to the December 2003 escape attempt, the
discoveries of contraband in defendant’s cell, occasions in which
defendant was not wearing a wristband while incarcerated, the
July 2005 escape from the jail shower, and the November 2004
incident, described ante, in which defendant was found to be in
possession of pruno. The prosecution argued that this evidence
should be admitted “to show [defendant]’s knowledge of the
inner-workings of the jail, and that he possessed the
opportunity, contrary to lay intuition, to escape from one
supposedly secure area of the jail into another, in order to
commit the murder.” The prosecution further explained that
“[t]he issue of opportunity is material and can be expected to be
in dispute in this case because it is reasonable to expect that it

45
 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

would be contrary to the assumption of the average juror that
an inmate at Men’s Central Jail could move around freely in a
secured environment in order to kill another inmate housed in
a different area of the jail.”16
The trial court received written opposition from the
defense and heard argument from counsel. The court ruled that
the evidence covered by the People’s motion was admissible as
part of the prosecution’s case-in-chief at the guilt phase of trial,
except for the incident in which defendant was found in
possession of pruno. The trial court regarded the allowable
evidence as “probative on the issue of [defendant’s] knowledge,
his sophistication, the ability to move around the jail and do
what was necessary to elude the authorities there.” The court
agreed with the prosecution that this evidence tended to show
defendant’s knowledge of jail protocols and how to circumvent
them, elaborating that “the lay person is going to think that if
you’re locked into a jail cell, that’s the end of it, you don’t get out
of that cell, you don’t get into someone else’s cell that’s locked
down, just not a possibility. They have to explain how that could
happen, and this does explain that.”
Before the jurors heard evidence regarding the May 2003
jail cell search — which, aside from Limas’s testimony about
Chingon/Santi mentioning a prior escape attempt, was the first

16
The prosecution also asserted in its motion in limine that
the December 2003 escape attempt was admissible to help
establish defendant’s identity as Tinajero’s killer. On this
subject, the prosecution asserted that Chingon/Santi’s reference
to an escape attempt in his communications with Limas tended
to prove that Limas’s correspondent was in fact defendant, and
therefore connect defendant to this person’s other incriminating
statements.

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

time the jury heard evidence about any of the acts associated
with this claim of error — they were instructed by the court as
follows: “Let me indicate that with this witness and with other
witnesses talking about things that occur in the jail, they’re
offered only to show the defendant’s knowledge of the operations
of the jails and the limitations placed on inmates, not to show
that he’s a person of bad character.” The court added that
“[t]here may be others as well on this general subject. . . . [¶] It’s
all limited to showing [defendant’s] knowledge of the operation
of the jail and the limitations placed on inmates.”17 At the close
of the guilt phase, the jury was instructed that the evidence that
had been introduced showing that defendant committed crimes
other than those for which he was on trial, “if believed, may not
be considered by you to prove that the defendant is a person of
bad character or that he has a disposition to commit crimes. It
may be considered by you only for the limited purpose of
determining if it tends to show knowledge of jail procedures and
rules as well as methods to overcome them.” The jury was
further instructed that it could not consider this evidence “for
any other purpose.”

17
A somewhat similar advisement was given to the jury
before it heard testimony regarding the July 2004 search of
defendant’s cell that yielded a syringe and a razor blade. At that
time, the trial court told the jury, “Obviously we’re going
through a number of incidents that don’t relate specifically to
the homicides charged in Counts 1 and Count 2. This goes to
the knowledge of [defendant] of the jail rules and any incidents
involving the ability to circumvent those rules.”

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

c. Analysis
i. Legal Principles
Evidence Code section 1101, subdivision (a) provides that,
subject to certain exceptions, “evidence of a person’s character
or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances
of his or her conduct) is inadmissible when offered to prove his
or her conduct on a specified occasion.” “Subdivision (b) of
section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such
evidence is relevant to establish some fact other than the
person’s character or disposition” (People v. Ewoldt (1994)
7 Cal.4th 380, 393 (Ewoldt)), with permissible purposes
including but not limited to proving “motive, opportunity,
intent, preparation, plan, knowledge, identity, [or] absence of
mistake or accident” (Evid. Code, § 1101, subd. (b)).
Moreover, “to be admissible such evidence [of uncharged
acts also] ‘must not contravene other policies limiting
admission, such as those contained in Evidence Code section
352.’ ” (Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence Code
section 352 authorizes the exclusion of evidence by the trial
court when its probative value is “substantially outweighed by
the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
The “undue prejudice” that Evidence Code section 352 is
concerned with “ ‘is that which “ ‘ “uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues.” ’ ” ’ ” (People v. Chhoun
(2021) 11 Cal.5th 1, 29 (Chhoun), italics omitted.)

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

As conveyed by the text of Evidence Code section 1101,
subdivision (b), evidence of misconduct may be admissible to
show “knowledge” or “opportunity,” among other permissible
theories of relevance. Regarding knowledge, “uncharged
misconduct evidence might show that a person possesses
relatively uncommon knowledge of a thing, technique, or
method, and such knowledge makes it somewhat more likely
that the person committed the act in question.” (Leonard, The
New Wigmore a Treatise on Evidence: Evidence of Other
Misconduct and Similar Events (2019) § 6.5, p. 464; see also
People v. Felix (2019) 41 Cal.App.5th 177, 185–186; cf. U.S. v.
Blitz (9th Cir. 1998) 151 F.3d 1002, 1008 (Blitz) [construing rule
404 of the Fed. Rules Evid. (28 U.S.C.)]; U.S. v. Barrett (1st Cir.
1976) 539 F.2d 244, 248 [same].) We also have recognized
circumstances in which evidence was properly admitted to show
opportunity. In People v. Thomas (1992) 2 Cal.4th 489, we
determined that testimony that the defendant, charged with
murder, claimed to enjoy sneaking up on people was not made
inadmissible by Evidence Code section 1101, reasoning that this
evidence “demonstrated that defendant had the ability to
surprise the victims” and given that “[t]he manner in which the
killer came into contact with the victims was unknown . . . [,]
that defendant was capable of doing so without their awareness
was certainly relevant to show opportunity.” (Id., at p. 520.)
We apply an abuse of discretion standard when reviewing
a ruling on an objection under Evidence Code sections 352 and
1101. (Chhoun, supra, 11 Cal.5th at pp. 26, 27.) A ruling subject
to this standard of review “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a

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manifest miscarriage of justice.” (People v. Rodriguez (1999)
20 Cal.4th 1, 9–10.)
ii. Application
At the outset, we reject defendant’s argument that Limas’s
testimony regarding her contacts with Chingon/Santi should
have been excluded as improper propensity evidence. As the
People observe, most of Limas’s testimony discussing her
interactions with Santi, including Santi’s interest in locating
“Raul,” is not “other acts” evidence subject to exclusion under
Evidence Code section 1101, subdivision (a). Whether
understood as “ ‘intrinsic’ ” evidence regarding motive and
identity (3 Jones on Evidence (7th ed. 2022) § 17:13) or
otherwise, this testimony was relevant to defendant’s guilt and
cannot reasonably be regarded as proscribed proof of criminal
propensity.
Defendant’s failure to raise an appropriate objection
before the trial court to the entirety of Limas’s testimony also
makes defendant’s misunderstanding regarding Evidence Code
section 1101’s scope largely academic. At most, defendant
preserved an objection to that portion of Limas’s testimony in
which she recounted Santi’s statement that he had tried to
escape from the jail facility.
Concerning that statement, we conclude that the trial
court did not abuse its discretion in allowing the prosecution to
offer evidence regarding defendant’s acquisition of Montalban’s
wristband by means of threat, the instances in which defendant
was found without his wristband, and the July 2005 escape from
the jail shower. As the trial court concluded, these episodes
were probative of defendant’s knowledge regarding how to
exploit weaknesses in jail security to move relatively freely

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Opinion of the Court by Cantil-Sakauye, C. J.

around the jail. Even though, as defendant emphasizes, these
incidents were not factually identical to the circumstances
surrounding Tinajero’s killing (with the proof at trial tending to
show that defendant had obtained a court pass from another
inmate to gain access to Tinajero’s module and cell), they were
nonetheless relevant to how defendant could have made his way
from his cell to an entirely different cell module in order to kill
Tinajero. This evidence tended to prove that defendant knew
that jail protocols for keeping inmates in their proper places
could be outmaneuvered and that he had the know-how to take
advantage of these lapses.
Meanwhile, the probative value of this evidence was not
substantially outweighed by a probability of undue prejudice to
defendant or another countervailing consideration. (Evid. Code,
§ 352.) The evidence regarding defendant’s acquisition of a
wristband from another inmate, his failure to wear his assigned
wristband on other occasions, and his escape from the shower
was not likely to provoke the sort of emotional response that
Evidence Code section 352 is concerned with. Furthermore, the
testimony concerning these incidents was relatively brief, and
the testimony was not likely to distract the jury by focusing its
attention on ancillary issues, particularly in light of the limiting
instructions given by the court. We therefore perceive no abuse
of discretion in the trial court’s ruling as it pertained to this
evidence.18

18
Although the trial court did not explain that it had
conducted an Evidence Code section 352 balancing analysis
prior to authorizing the introduction of this evidence, it did
reference section 352 in explaining why the evidence of

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Opinion of the Court by Cantil-Sakauye, C. J.

Defendant argues that because he was found without a
wristband and escaped from the locked showed area after the
Tinajero killing, these particular incidents did not show he had
relevant knowledge at the time of the Tinajero homicide. This
contention is contrary to the general rule that “[t]he
circumstance that the uncharged [act] occurred after the
charged offense does not” necessarily place the uncharged act
outside the ambit of Evidence Code section 1101, subdivision (b).
(People v. Balcom (1994) 7 Cal.4th 414, 425.) In making his
argument, defendant relies upon People v. Hendrix (2013)
214 Cal.App.4th 216, in which the court stated that “to establish
knowledge when that element is akin to absence of mistake, the
uncharged events must be sufficiently similar to the
circumstances of the charged offense to support the inference
that what defendant learned from the prior experience provided
the relevant knowledge in the current offense.” (Id., at pp. 242–
243, italics added.) But Hendrix was not concerned with
uncharged acts occurring after a charged crime. Both of the
uncharged acts offered as evidence in that case occurred prior to
the charged offense, and we do not read the analysis in Hendrix
as expressing a categorical view on the issue defendant raises.
Furthermore, we perceive no reason to adopt a strict rule
that evidence showing a person possesses pertinent knowledge
at some point after the charged crime can never shed light on
whether the person had the same or similar knowledge at some
earlier date. In this case, a juror could plausibly infer from each

defendant’s possession of pruno would be excluded. This
mention allows for an inference that the court engaged in the
necessary weighing when considering the other evidence
entailed by the People’s motion. (People v. Harris (2013)
57 Cal.4th 804, 845.)

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of the described incidents that defendant had material
knowledge regarding how to exploit weaknesses in jail security
at the time Tinajero was killed. (Accord, Blitz, supra, 151 F.3d
at p. 1008 [“when the evidence of other acts is offered to prove
knowledge, the other acts need not be similar to the charged acts
as long they ‘ “tend to make the existence of the defendant’s
knowledge more probable than it would be without the
evidence” ’ ”].) This inference is least compelling with regard to
defendant’s escape from the shower area because of the factual
differences between this incident and the circumstances around
Tinajero’s homicide, as well as the time lag between the two
events. But it was still within the court’s discretion to conclude
that this incident, involving an escape from a supposedly secure
area of the jail, tended to prove that defendant knew how to
circumvent the jail’s security measures when Tinajero was
killed in April 2004, and that the passage of time and other
differences between the two occasions went to the weight that
could reasonably be attached to the shower escape in showing
defendant’s knowledge at the time of the killing.
It is less clear that the evidence that defendant possessed
a shank, razor blade, syringe, and an altered paper clip should
have been admitted at the guilt phase of trial. As compared to
the incidents involving escapes and defendant’s violation of the
jail’s wristband protocols, these incidents had a significantly
more attenuated relationship with the question of how
defendant could have moved about the jail to commit the
Tinajero murder. Yet even if we were to assume that this
evidence should not have been admitted at the guilt phase, any
assumed error in this respect is properly regarded as harmless.
In light of the powerful evidence of defendant’s culpability of the
crimes and enhancements alleged against him — not least his

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

confessions and the well-corroborated eyewitness testimony
offered at trial — and the marginal nature of this proof in
connection with the guilt determination (the prosecutor not even
deigning to mention defendant’s possession of contraband in her
guilt phase closing statement), it is not reasonably probable that
a different result would have obtained at that phase of trial had
this evidence not been offered as proof. (People v. Watson (1956)
46 Cal.2d 818, 836 (Watson).)19
Insofar as defendant also asserts harm at the penalty
phase from the assertedly erroneous introduction of this
evidence at the guilt phase, his claim of prejudice fares no better.
A trial error under state law will be regarded as prejudicial at
the penalty phase if “there is a reasonable (i.e., realistic)
possibility that the jury would have rendered a different verdict
had the error or errors not occurred.” (People v. Brown (1988)
46 Cal.3d 432, 448 (Brown).) This standard is “ ‘the same in
substance and effect’ ” (People v. Gonzalez (2006) 38 Cal.4th 932,
961) as the standard for assessing the prejudicial effect of
federal constitutional error, which considers “whether the error
is harmless beyond a reasonable doubt” (ibid., citing Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman)). “ ‘When
evidence has been erroneously received at the penalty phase,
this court should reverse the death sentence if it is “the sort of

19
Contrary to defendant’s assertions, any error in the
admission of this evidence at the guilt phase of trial “was not of
such gravity as to amount to a denial of [defendant’s] ‘due
process right to a fair trial, an impartial jury, and a reliable
penalty determination guaranteed by the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States
Constitution.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 356;
see also People v. Partida (2005) 37 Cal.4th 428, 439.)

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evidence that is likely to have a significant impact on the jury’s
evaluation of whether defendant should live or die.” ’ ” (People
v. Hamilton (2009) 45 Cal.4th 863, 917.)
We perceive no reversible error under this standard.
First, evidence regarding defendant’s possession of a shank,
syringe, and razor blade in jail was a proper subject of the jury’s
consideration at the penalty phase. Possession of these
instruments in jail constitutes a crime involving an implied
threat of force or violence within the meaning of section 190.3,
factor (b). (§ 4502, subd. (a); People v. Delgado (2017) 2 Cal.5th
544, 585–586 (Delgado); People v. Landry (2016) 2 Cal.5th 52,
118‒119 [razor blade]; People v. Lucky (1988) 45 Cal.3d 259, 292
[shanks]; People v. Wallace (2008) 44 Cal.4th 1032, 1082 [“ ‘mere
possession of a potentially dangerous weapon in custody
involves an implied threat of violence’ ”].)20 Well before trial
began, the prosecution signaled its intent to rely upon evidence
that defendant had possessed weapons while in jail as an
aggravating factor at the penalty phase. Furthermore, the
jurors were instructed at the conclusion of the penalty phase
that defendant’s possession of a weapon in jail could be
considered as an aggravating circumstance only if proved

20
With regard to the syringe, the deputy who found it in
defendant’s cell testified that it was approximately two and a
half inches long, with a needle that was slightly more than half
an inch in length. According to the deputy, the syringe could be
used to inject drugs or as a weapon. Photographs of the syringe
were introduced as exhibits, allowing us to assess its
appearance. We are satisfied from the foregoing that there was
a sufficient basis for the jury at the penalty phase to consider
defendant’s possession of the syringe as a possible violation of
section 4502, subdivision (a). (See People v. Hughes (2002) 27
Cal.4th 287, 383; People v. Tuilaepa (1992) 4 Cal.4th 569, 589.)

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beyond a reasonable doubt. The foregoing facts establish that
there was no meaningful penalty phase error as to this evidence.
This evidence was properly considered by the jury in making the
penalty determination, even if it was prematurely introduced at
the guilt phase of trial. (Cf. People v. Marks (2003) 31 Cal.4th
197, 226; People v. Smith (2003) 30 Cal.4th 581, 613 [“The
challenged evidence [introduced at the guilt phase] would
clearly have been admissible at the penalty phase even if not at
the guilt phase [citation], thus obviating any possible prejudice
at that phase”].)21

21
Defendant also argues that “[b]ecause the trial court erred
in admitting the other-acts evidence, the jury improperly was
permitted to consider it at the penalty phase under [section
190.3,] factor (a),” the aggravating circumstance providing for
consideration of “[t]he circumstances of the crime of which the
defendant was convicted” in determining the appropriate
penalty. (§ 190.3, factor (a); see People v. Blair (2005) 36 Cal.4th
686, 749 [“The ‘circumstances of the crime’ as used in section
190.3, factor (a), ‘does not mean merely the immediate temporal
and spatial circumstances of the crime. Rather it extends to
“[t]hat which surrounds materially, morally, or logically” the
crime’ ”].) We do not believe it reasonably possible that any
error in admitting other acts evidence at the guilt phase of trial
prejudiced defendant by allowing jurors to assign undue weight
to these incidents at the penalty phase. The jury was carefully
instructed concerning how it could consider this evidence at the
close of both the guilt and the penalty phases, being told at the
guilt phase that these incidents could be considered only insofar
as they might bear upon defendant’s knowledge of jail protocols
and how to evade them, and being allowed to consider these
incidents at the penalty phase as aggravating factor (b)
evidence, if proved beyond a reasonable doubt. Even if we were
to assume for sake of argument that the jury also regarded these
discrete acts as “circumstances of the crime” under section

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

That leaves only an assumed error in the introduction of
testimony that an altered paper clip was found in defendant’s
cell more than a year after the Tinajero murder occurred.
Unlike the evidence that defendant possessed a shank, razor
blade, and syringe in jail, this evidence was not admissible at
the penalty phase under section 190.3, factor (b). (People v.
Lancaster (2007) 41 Cal.4th 50, 93‒94 [a defendant’s possession
of a makeshift handcuff key in jail does not automatically
qualify as factor (b) evidence].) Yet we do not perceive a
reasonable possibility of a different result had this evidence not
been introduced. (See People v. Mills (2010) 48 Cal.4th 158,
208–209; Brown, supra, 46 Cal.3d at p. 448.) True: evidence at
the guilt phase that defendant had been found in possession of
the altered paper clip may have informed the presentation of
penalty phase testimony regarding prisoners’ use of distorted
clips to escape from handcuffs, and the prosecutor did comment
upon defendant’s possession of the altered clip during her
closing argument at that latter phase of trial. But no evidence
was introduced that defendant in fact knew how to escape from
handcuffs using an altered paper clip or that he had done so.
Furthermore, the trial court did not include defendant’s
possession of a paper clip in its recitation of the factor (b)
evidence that could function as an aggravating circumstance.
Finally, insofar as the evidence regarding an altered paper clip
contributed to the prosecutor’s argument regarding defendant’s
possible future dangerousness in prison, other, properly
admitted evidence — including evidence detailing the

190.3, factor (a), and assume further that this was
impermissible, there is no reason to believe the jury accorded
such weight to them within the parameters of that aggravating
circumstance as to prejudice defendant under any standard.

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circumstances surrounding the Tinajero homicide itself — went
to that same point, and far more powerfully. In light of the other
evidence before the jury, it is clear beyond any reasonable doubt
that defendant’s possession of an altered paper clip did not
impact the outcome at the penalty phase. We conclude that
defendant was not prejudiced at any phase of trial by any
possible error in the admission of this evidence.
2. Evidence Regarding Gang Activity and
Defendant’s Gang Membership
Defendant also challenges the introduction of evidence
regarding his gang membership and gang activity at the Men’s
Central Jail. He asserts that this evidence was inadmissible
under Evidence Code sections 352 and 1101 and that its
introduction violated his constitutional rights to due process, a
reliable penalty determination, and a fundamentally fair jury.
We find this argument forfeited as to some of the evidence
involved and, in any event, meritless.
a. The Gang Evidence Introduced at Trial
The testimony and exhibits that defendant focuses upon
with this contention represent a subset of the gang evidence that
was introduced at trial, which will be discussed at some length
below to provide context to defendant’s claim of error.
i. Initial Testimony
The subject of gangs or gang activity at the jail initially
arose during the defense’s cross-examination of Anthony Sloan,
the prosecution’s first witness concerning the Tinajero killing.
During this cross-examination, Sloan testified that he had been
a trusty in the gang module at the Men’s Central Jail and had
been transferred from the gang module to the module where

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Tinajero was housed.22 When defense counsel asked if “there is
going to be a hit in the jail or there’s going to be fighting, that
the gang module is usually the individuals who carry it out,
individuals in the gang module?” Sloan answered in the
affirmative. Sloan also agreed with counsel’s inquiry whether,
as a trusty in the gang module, he “took kites [messages] from
different members of that module” and “did things for them.”
Sloan testified further regarding gang activity at the jail during
redirect examination and recross-examination, without any
objection under Evidence Code sections 352 or 1101 from either
the prosecution or the defense. For example, in the course of
recross-examination, defense counsel asked, “[W]hen prison hits

22
Possibly foreshadowing an argument that Tinajero’s
cellmates had killed him while administering gang-sanctioned
retribution, the opening statement by defense counsel had
noted, “Mr. Tinajero was what’s known in the jail as a rat or a
snitch, and when you are a rat and a snitch in the jail, there is
some liability, there is some danger based on that. [¶] I think
the evidence will show Mr. Tinajero was placed in a cell with
what, four other convicted felons . . . . He wasn’t a keep away,
at least from the other four convicted felons, and he ends up
dead in the cell. That’s not that strange when you are a rat or a
snitch in jail.”
Later, in his closing statement at the guilt phase, defense
counsel argued, “[I]f there’s going to be discipline issued out, it
might come from state prison, it might come from high power,
but it goes through the gang module. They are the enforcers.”
Describing Tinajero’s cellmates, counsel said, “and what do
these guys, where do they work? What a coincidence. What a
coincidence. They are trusties in the gang module.” The defense
further argued to the jury that Tinajero’s death “wasn’t planned
as a hit, a murder. It was planned as a regulation that went too
far, it got out of hand.”

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are done . . . doesn’t high power basically send the order down
to the gang module?” Sloan professed not to know.
Additional testimony regarding gang activity and gang
influence at the jail was elicited by both the prosecution and the
defense in the subsequent examination of Matthew Good,
without any contemporaneous objection under section 352 or
section 1101 of the Evidence Code. Good testified on direct
examination that he did not intervene when defendant was
attacking Tinajero because “it’s one of those jail things where
I don’t know where this came from,” meaning “it could be people
higher up on the chain, people that are affiliated in there that
are saying take care of this guy.” On cross-examination, Good
agreed with defense counsel that, for the most part, orders from
“high power” went to the jail’s gang module to be carried out.
The testimony that defendant casts as objectionable began
with Limas’s subsequent testimony about the letter she had
received from her correspondent that was signed, “Santiago
Pineda Hernandez Chingon.” In questioning Limas, the
prosecutor observed that “up here in the letter it says, ‘From the
big bad ass ES Wilmas.’ ” The defense objected that the letter
“speaks for itself”; the court overruled this objection. The
prosecutor continued, “East Side, ES Wilmas Ghost Town Locos,
is that correct?” Limas answered in the affirmative. A few
questions and answers later, the prosecutor asked, “And what’s
ES, do you know?” Limas answered, “East Side.” The
prosecutor followed up by asking, “Who called themselves East
Side Wilmas?” The defense objected on the ground that an
inadequate foundation had been laid. Before the court could
rule on the objection, Limas answered, “It’s a gang.” The court
then overruled the objection, and Limas repeated her answer.

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After Limas left the stand, other witnesses testified that
the phrases “El Chingon” and “ES Wilmas” were written in the
notebook found in defendant’s clothing after Tinajero’s killing,
and that transcripts of Tinajero’s testimony and a police report
regarding defendant’s arrest also had been found in the cell.
Regarding the transcripts and report, a sheriff’s deputy testified
(over a defense objection that this testimony lacked a sufficient
foundation, which the trial court overruled) that this paperwork
could be used to “shut the other guy [referring to a witness] up”
and “get other people involved.” Following up on the deputy’s
reference to targeted inmates being subject to a “green light,” on
cross-examination defense counsel inquired, “So if an inmate
has a green light, any other inmate in the jail would have the
okay to do something to that inmate?” The deputy responded,
“Generally with the green lighters, we’re talking about Hispanic
gang member inmates, yes.” Later in the course of cross-
examination, defense counsel returned to the subject, asking,
“Once a person is on the green light, is he basically subject to
attack by any gang member?” to which the deputy answered,
“Yes, any Hispanic gang member.” Additionally, Deputy Torres
testified that defendant had told him he had secured permission
to kill Tinajero by showing the inmate who ran the 2000 floor
the proper “paperwork.” Again, there were no objections under
Evidence Code sections 352 or 1101 to any of this testimony.23

23
Defense counsel also asked Luis Montalban, who had
testified that defendant had obtained his jail-issued wristband
from him by means of threat, whether he (Montalban) was a
“Southsider”; Montalban answered in the affirmative.

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ii. Deputy Clift’s Testimony
Deputy Clift testified after the presentation of the
previously described evidence. Before Clift took the stand, the
prosecutor characterized him as a gang expert whose testimony
would respond to the apparent defense theory that Tinajero’s
cellmates, and not defendant, had been responsible for
Tinajero’s death. The prosecutor explained that “the defense
has been trying to imply that it was the four guys living in the
cell that killed Tinajero instead of [defendant]. He’ll explain
why that would not be.” The trial court observed in response,
“This isn’t a case involving gang activity specifically, but the
relevance of gangs is present to the extent that as we’ve heard
some of the testimony, [defendant] received items, apparently
clothing as well as wrist bands apparently through the use of
threats of gang retaliation or group retaliation if an individual
didn’t give it up, so it is relevant.” The court added, however,
that it “want[ed] to be cautious about the use of gang testimony
because the California Supreme Court said it’s highly
prejudicial.” The defense did not object to Clift’s anticipated
testimony at that time.
Before the jury, Clift testified that based on his experience
within the jails and jail culture, in his opinion Tinajero’s white
cellmates would not have harmed Tinajero. A defense objection
to this testimony as lacking an adequate foundation was
overruled. The court did grant a defense motion to strike Clift’s
answer to a follow-up question posed by the prosecutor, in which
Clift explained that he premised his opinion on information he
had received regarding the inmates’ criminal histories. At a
sidebar discussion, the judge explained he had thought the
prosecution had called Clift to show that “whites are not aligned
with the Hispanic gangs and would not carry out a hit for the

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Hispanic gangs,” which the court described as a more “generic
thing” than going through “these individuals’ backgrounds and
[saying] he knows that they wouldn’t commit a crime.” The jury
was instructed to disregard Clift’s testimony that his opinion
was premised on information he had received regarding the
inmates’ backgrounds.
A hearing was then conducted outside of the jury’s
presence. (See Evid. Code, § 402.) At this session, the
prosecutor posed questions to Clift regarding the basis for his
opinion that Tinajero’s cellmates would not have killed him.
Clift explained that his opinion was premised on the cellmates’
backgrounds and on the fact that the victim was a Sureño gang
member who was testifying against another Sureño gang
member, a situation that Clift cast as “gang business” that
Tinajero’s cellmates would not have been involved in. The
defense argued that Clift’s testimony on this topic was
inadmissible because “for a person to get up and say this person
didn’t do it but inferentially the other person did it” would
violate defendant’s right to a jury trial. The prosecutor
responded that Clift’s testimony was appropriate because, “for
the defense to be able to just get up there and say it was the four
guys in the cell that did it probably . . . for the jury to
understand why that probably didn’t happen, [Clift is] not
saying it’s a hundred percent certainty, he’s saying based on his
expert opinion, it is highly unlikely that these individuals would
have committed this crime because they’re not part of the
politics, and . . . it is probative and enlightening to this jury who
doesn’t know anything about . . . the jail culture or the prison
culture.”
The trial court sustained the defense objection “to that
testimony,” reiterating that “[t]he thing I thought we were going

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at was that the whites would not — the normal gang
associations are such that whites would not carry out contracts
to kill on behalf of the Hispanic gangs, but if that’s not the case,
then there is no relevance to the testimony.” The prosecutor
agreed to limit Clift’s testimony in conformity with the court’s
ruling. After a discussion of other matters, the conversation
returned to Clift’s anticipated testimony. The prosecutor
represented that she would ask Clift about the likelihood of
nongang members carrying out “Sureno business”; whether,
based on the content of letters defendant authored, he believed
defendant was a Sureño gang member; whether there was a
green light on Tinajero; whether permission was needed in jail
to conduct a hit; and whether it was unusual for Sureños to carry
out Sureño “business,” including their “own” business, among
other topics of inquiry. The defense replied that this proffer
“seems to be the same old issue revisited again, trying to do
indirectly what [the prosecutor] cannot do directly.” Defense
counsel continued, “I believe the People have tried to create an
issue of gangs where it does not exist. There is no — we have
not introduced any testimony at this point to show that this was
a gang hit. The People have invented this issue, and now they’re
trying to go further and call an expert to say it was not a gang
killing, and I would submit it.” The prosecutor responded that
the defense had opened the door to this evidence by inquiring
about a gang module in the jail and whether hits went through
that module. The court overruled the defense objection.
Resuming his testimony before the jury, Clift testified that
nongang members would not carry out a hit on a cellmate
because “they don’t get involved in the political aspect or the
business of the gangs.” According to Clift, an inmate’s status as
a trusty in the jail’s gang module did not mean that he would do

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“business” for the Sureño gang, including killing a snitch,
“because they’re not involved in the business,” “can’t be trusted,”
and “a lot of them don’t want to get involved.” Over a defense
objection on relevance grounds, which the court overruled, Clift
testified that based on the contents of a letter Limas had
previously described as well as another letter from defendant
that Clift had intercepted, in his opinion defendant was part of
the Sureño gang. Clift regarded it as unlikely that an individual
who was not a member of the Sureño gang would carry out a hit,
even if that person hung out with the gang. But he did not
believe it would be unusual for somebody who was a member of
the Sureño gang “to take care of their own business.” Clift
agreed with counsel’s assertion that within the jail there was a
hierarchy of inmates who controlled the “power” within the
institution. It also would not be unusual, in Clift’s opinion, for
someone interested in performing a “hit” on an inmate housed
in a jail module to go to the inmate in charge of that module to
secure permission first, and having “paperwork” on someone
was significant because “if a gang member goes out and hurts
another gang member, he has to have a reason for it . . . so what
he’ll do, if he gets questioned by other gang members, he can
always reveal this paperwork and show it to them and say, look,
this person talked to law enforcement.”
A break in the proceedings occurred shortly thereafter.
During the break, defense counsel moved for a mistrial, arguing
that the prosecution “did indirectly what the court had
prohibited them from doing directly.” Counsel added that he
thought “the relevancy of this testimony is very remote and it
should be stricken under [Evidence Code section] 352 at least.”
The trial court denied the motion, stating, “[T]he issue of gang
activity is peripherally involved in this case, unfortunately, but

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also is consistent with earlier information we had that
[defendant] had received permission from or approval from,
I was going to say shot callers, but other individuals in the —
that had some control over the jail to carry out the hit, so that
has to be explained as well.”
After further direct examination and cross-examination,
on redirect examination Clift testified that “the jail rules with
the Sureno [are] if you’re a snitch, it’s automatic you will be
killed,” with Clift agreeing with the prosecutor’s statement that
“in a case where you have an inmate who testified against
another, nobody is going to be told to regulate them, it’s going to
be kill if an order did in fact go down.” He further testified that
although trusties not enrolled in a gang might be enlisted to
perform favors for Sureño gang members, “as far as ordering a
non Sureno to do a hit, that’s not going to happen” because
“[t]hey cannot trust them to keep their mouth shut or to
complete the operation.” On recross-examination, Clift testified
that “[g]reen light lists [come] from the shot callers of the jail,
and it’s got to be approved, and before you attack someone,
before you regulate anyone, you have to call and verify to make
sure that that person should still be on the green light list. You
have to upgrade it.”
iii. Cross-examination of Defendant
The prosecution also inquired into defendant’s gang
affiliation when he testified on his own behalf at the guilt phase.
On direct examination, defendant denied being a Sureño
gang member, testifying that he had only “associate[d]” with the
Wilmas. He explained that the Sureños were a prison gang and
admitted only people who had served time in prison. Prior to
her cross-examination of defendant, the prosecutor advised the

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trial court and defense counsel that she planned on questioning
defendant about a statement he had made — “I ride for the Sur,
one for all” — in one of the letters Clift had intercepted. This
letter, dated September 26, 2006, was directed toward a female
inmate, Della Rose Santos. Defense counsel stated, “Obviously
we oppose that line of questioning on the letter itself . . . the
letter, I don’t believe that was mentioned in direct.” The court
overruled the objection, finding the letter relevant to impeach
defendant’s testimony.
In her cross-examination of defendant, the prosecutor read
a portion of the letter providing, “Grumpy told me about that
guera that turned over the dime. Their treating him bad but
that will be straighten out soon we ride for the sur tu sabes babe,
‘one for all, all for one.’ ”24 When asked to explain this text,
defendant denied that “we ride for the sur” meant he was a
Sureño gang member. He testified, “When you’re in jail, you can
only go — you have certain choices who to run with, and that’s
the Southside, so a Southside runs with the Surenos, but the
Surenos is only a prison gang, not an L.A. County jail gang.” On
further cross-examination, defendant admitted that he
“claimed” membership in the Ghost Town Locos clique of the
East Side Wilmas street gang. Asked again specifically about
the statement within the letter, “we ride for the sur,” defendant
explained, “[S]ince there’s different people you run with in jail,
you have to go along with what happens.”

24
At the penalty phase, Clift would testify that although
“guera” means “light-skinned or light hair” in Spanish, in this
context the word was used to refer “to Grumpy’s partner as a
sissy or a bitch for snitching him off.”

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b. Analysis
“The People are generally entitled to introduce evidence of
a defendant’s gang affiliation and activity if it is relevant to the
charged offense.” (Chhoun, supra, 11 Cal.5th at p. 31.)
“Evidence of the defendant’s gang affiliation — including
evidence of the gang’s territory, membership, signs, symbols,
beliefs and practices, criminal enterprises, rivalries, and the
like — can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime.” (People v. Hernandez (2004)
33 Cal.4th 1040, 1049 (Hernandez).) But “admission of evidence
of a criminal defendant’s gang membership creates a risk the
jury will improperly infer the defendant has a criminal
disposition and is therefore guilty of the offense charged” (People
v. Williams (1997) 16 Cal.4th 153, 193), and “[t]rial courts
should carefully scrutinize” such evidence (People v. Melendez
(2016) 2 Cal.5th 1, 28 (Melendez)). We review a trial court’s
ruling allowing the presentation of such evidence for an abuse
of discretion. (Id., at p. 29.)
i. Limas’s Testimony
We conclude that defendant forfeited any argument that
Limas’s testimony regarding the East Side Wilmas should have
been excluded by the trial court under Evidence Code section
352 or 1101. Defendant did not raise a timely objection to
Limas’s testimony on these grounds. Although defendant did
object to Limas’s testimony regarding the meaning of “East Side
Wilmas” as lacking a sufficient foundation, this objection did not
preserve the distinct argument that her testimony was
inadmissible under Evidence Code section 352 or 1101. (See
People v. Valdez (2012) 55 Cal.4th 82, 137‒138 (Valdez)
[objections that testimony was irrelevant and lacked an

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 PEOPLE v. PINEDA
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adequate foundation did not preserve argument on appeal that
evidence was inadmissible under Evid. Code, § 352]; People v.
Demetrulias (2006) 39 Cal.4th 1, 19–21 (Demetrulias) [trial
objections that evidence was irrelevant, speculative, and lacked
a proper foundation did not preserve argument that evidence
was inadmissible under Evid. Code, § 1101].)
Defendant asserts that before trial began, he raised an
adequate objection to the introduction of gang evidence as
unduly prejudicial. This assertion is unfounded. Defendant’s
argument relies upon a discussion between counsel and the trial
court that took place during the development of the jury
questionnaire. At that time, the prosecutor observed that the
draft questionnaire asked prospective jurors about gangs, and
opined that this questioning was appropriate because of the
contents of the notebook found in defendant’s clothing and a
witness (presumably Limas) who would testify at trial to
statements made to her by someone who identified himself as
“Chingon” from a “Wilmas” gang clique. Defense counsel
responded, “Your honor, I would strongly disagree with the
People with respect to this being a gang case. . . . And I don’t
believe any references to gangs should be made. [¶] Gangs is
very prejudicial, and the identification I believe by . . . the
operative witness is established by her familiarity with the
person that was speaking to her, and gangs doesn’t — gangs is
only prejudicial.”
The court then stated, “The only reason it would be in the
questionnaire is to make sure that the jury is not overwhelmed
emotionally by gang evidence of whatever kind that comes in.”
After some additional back-and-forth, defense counsel said,
“I believe the People should make an offer of proof as to why
Wilmas and Chingon is important,” leading the prosecutor to

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 PEOPLE v. PINEDA
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explain how these words were connected to defendant in various
ways. The court then said it would leave questions about gangs
out of the questionnaire if that was what the defense wanted.
Defense counsel replied, “Yes. That would be my request that it
be left out. [¶] And before the People call the witness, perhaps
we can have [an Evidence Code section] 402 hearing . . . with
respect to that issue.” To which the court responded, “Sure. But
you’re assuming for this position that she’s [referring to the
prosecutor] going to get that evidence in,” which defense counsel
agreed he was, “[a]nd in that case you don’t want the questions
[about gangs] in the questionnaire.” Defense counsel confirmed
that he did not want those questions included. The conversation
then turned to other subjects.
Counsel’s comments during the preparation of the jury
questionnaire did not amount to an objection under section 352
or section 1101 of the Evidence Code (or on any other basis) to
the presentation of evidence regarding gangs at trial. Defense
counsel’s statement that he did not “believe any references to
gangs should be made,” in that setting, raised a concern
regarding the contents of the jury questionnaire. With regard
to the presentation of gang evidence at trial, counsel merely
suggested the possibility of conducting an evidentiary hearing
and neither requested nor received a ruling on the presentation
of evidence relating to gangs at the jail — which, it should be
noted, was later elicited first by the defense at trial. Under the
circumstances, the dialogue regarding the jury questionnaire
neither presented nor preserved a claim that the court should

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have kept gang evidence from the jury pursuant to Evidence
Code section 352 or 1101.25
Even if there had been a timely objection to Limas’s
testimony under Evidence Code section 352 or 1101, which there
was not, the trial court would not have abused its discretion by
overruling it. Limas’s testimony identifying “ES Wilmas” as a
gang helped explain why this otherwise cryptic phrase might
have been found in both correspondence addressed to her and in
the notebook found in defendant’s cell, and on that basis
provided additional proof that Santi/Chingon was in fact
defendant. (See People v. Booker (2011) 51 Cal.4th 141, 171 [a
“defendant’s plea of not guilty put[s] all elements of each offense
at issue”].) More significantly (particularly in light of what the
People correctly characterize as “overwhelming” proof that
defendant and Santi/Chingon were one and the same), evidence
of defendant’s gang affiliation provided a reason why he might
have been authorized to kill Tinajero — someone who had
snitched on a gang member — in a jailhouse environment
where, as testimony elicited by both the defense and the

25
Defendant also argues that his failure to raise a
contemporaneous objection to Limas’s testimony under
Evidence Code sections 352 and 1101 should be excused because
in reading from defendant’s letter, the prosecutor had already
put objectionable content before the jury, and because Limas
described the ES Wilmas as a gang before the trial court ruled
on the defense’s foundational objection. But timely objections to
this evidence as unduly prejudicial and as improper proof of
propensity were still necessary to preserve defendant’s
arguments on appeal. If these objections had been deemed
meritorious, the trial court could have stricken any
objectionable testimony from the record and instructed the jury
to disregard the disputed questions and answers. (See, e.g.,
Melendez, supra, 2 Cal.5th at p. 33.)

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prosecution tended to show, gangs exerted significant influence
over whether, how, and by whom violence could be employed.
Given the relevance of Limas’s testimony on these points, its
brevity, and the other surrounding circumstances (including the
evidence that already had been introduced at trial regarding
gang activity at the jail), we would not find error even if
defendant had presented his contentions to the trial court.26
ii. Clift’s Testimony
We assume that defendant has preserved his argument
challenging Clift’s testimony as inadmissible under Evidence
Code section 352, but we conclude he did not preserve his claim
of error under Evidence Code section 1101. (See Valdez, supra,
55 Cal.4th at p. 130 [objections before the trial court that
evidence was “irrelevant, cumulative, lacking in foundation, or
prejudicial” did not preserve a claim on appeal that the evidence
was inadmissible under Evid. Code, § 1101]; People v. Doolin

26
It is unclear whether defendant also attacks the
introduction of evidence relating to gangs that was proffered
through witnesses other than Limas who testified before Clift
took the stand and the defense made its first recognizable
objection to the introduction of gang evidence as unduly
prejudicial. Were we to assume that defendant challenges the
admission of this evidence, too, we would conclude that any
appellate attack on this testimony as inadmissible under
Evidence Code section 352 or 1101 has been forfeited due to
defendant’s failure to register a timely and specific objection
before the trial court that would preserve his arguments on
appeal. Additionally, much of this evidence was elicited by the
defense or responsive to testimony elicited by the defense, and
in any event, the trial court would not have abused its discretion
in overruling an objection or objections under Evidence Code
section 352 or 1101, due to this relevance of this evidence in
fleshing out the gang dynamics at the Men’s Central Jail and
their bearing upon the Tinajero killing.

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(2009) 45 Cal.4th 390, 437 [a trial objection under Evid. Code,
§ 352 failed to preserve an objection under Evid. Code, § 1101
for purposes of appeal].) Ultimately, defendant’s claim of error
under Evidence Code section 352 is unpersuasive, as would be
any argument under Evidence Code section 1101, had it been
preserved.
As detailed in the foregoing summary of the evidence
introduced at trial, Clift took the stand only after the jury had
heard extensive testimony regarding gang activity at the Men’s
Central Jail. Some of this testimony was elicited by the defense,
in line with a theory that Tinajero had been killed by his
cellmates incident to a gang-ordered “regulation” that went too
far. In this vein, defense questioning of Good and Sloan had
insinuated that Tinajero had been killed, intentionally or
accidentally, by his cellmates at the direction of a jailhouse
gang.
In this context, Clift’s testimony was relevant to explain
why the pertinent gang dynamics at the jail made it more,
rather than less, likely that defendant had killed Tinajero.
Clift’s testimony that a “hit” on a snitch would need the approval
of gang authorities within the jail; that inmates who were not
members of a gang would not be tasked with performing a hit,
but a gang member with the proper “paperwork” would be
allowed to take care of his own “business”; and that defendant
was, in his opinion, a gang member all was relevant to and
probative regarding the central contested issue surrounding the
Tinajero killing, namely, whether defendant or Tinajero’s
cellmates were responsible for Tinajero’s death.
What is more, in light of all relevant circumstances, the
probative value of this evidence in these respects was not

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 PEOPLE v. PINEDA
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substantially outweighed by a probability of undue prejudice
from the jury hearing about gang culture in jail and defendant’s
relationship with gangs. Defendant calls out Clift’s
identification of him as a gang member as particularly
prejudicial. But by the time Clift testified, the jury already had
heard from Limas about the “ES Wilmas” notation in a letter
connected to defendant. Moreover, placed in context,
defendant’s gang membership did not evoke the sort of raw
“ ‘ “ ‘ “emotional bias against the defendant as an
individual” ’ ” ’ ” that might lead to an unjust outcome at trial.
(Chhoun, supra, 11 Cal.5th at p. 29.) It instead served the more
technical purpose of explaining how the gang bureaucracy at the
jail might have sanctioned retribution against Tinajero by a
fellow gang member. We find no abuse of discretion in allowing
Clift to testify as he did.27
iii. Cross-examination of Defendant
Lastly, defendant has forfeited any claim on appeal that
the prosecution ran afoul of Evidence Code section 352 or 1101
by cross-examining him regarding his gang membership. As
with his challenge to Limas’s testimony, defendant did not raise
a contemporaneous objection at trial that this cross-examination
was improper under these provisions. Neither counsel’s position
against including any mention of gangs in the jury
questionnaire, nor his objection to cross-examination regarding

27
Moreover, the prosecutor only briefly touched upon the
gang evidence in her closing statement at the guilt phase. It was
the defense that more extensively invoked the gang angle,
describing Clift’s testimony as “very valuable” in its closing
statement and characterizing it and other evidence regarding
gangs as supportive of the defense theory of Tinajero’s death as
a gang-authorized regulation “that went too far.”

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 PEOPLE v. PINEDA
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the letter defendant wrote to Limas on the ground that it was
outside the scope of direct examination, can reasonably be
understood as raising such an objection. And contrary to
defendant’s assertion, his failure to raise a timely objection
cannot be excused because it would have been futile in light of
the trial court’s previous rulings regarding the admissibility of
gang testimony; on the contrary, given the different evidence
and circumstances associated with those rulings, “[t]he record
in the present case does not establish any basis to excuse the
defense’s failure to object.” (People v. Redd (2010) 48 Cal.4th
691, 729, fn. 18.)28

28
Earlier, during the prosecution’s case-in-chief, the parties
had briefed and presented argument regarding the admissibility
of the letter discussing “Grumpy” and the “guera.” But this
discourse concerned the letter’s admissibility as section 190.3,
factor (b) evidence at the penalty phase of trial. At the time,
before defendant took the stand in his defense, the prosecution
did not seek to rely upon the letter at the guilt phase.
In its briefing regarding the admissibility of the letter, the
defense did identify Evidence Code sections 352 and 1101 as
grounds for exclusion. The trial court subsequently observed
that defendant’s reliance on Evidence Code section 1101 in this
briefing was misplaced because the issue before the court was
limited to the letter’s admissibility at the penalty phase,
however, and defense counsel did not dispute this assessment.
Under the circumstances, defendant’s subsequent decision
to testify at the guilt phase made it incumbent on the defense to
alert the trial court that defendant was maintaining an
objection under Evidence Code sections 352 and 1101 to the use
of the letter for impeachment purposes on cross-examination
during the guilt phase defense case. (See People v. Morris (1991)
53 Cal.3d 152, 190 [to preserve an issue for appeal, a motion in
limine is to be “made at a time before or during trial when the
trial judge can determine the evidentiary question in its
appropriate context”].)

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Were we to assume for sake of argument that defendant
did not forfeit his challenge to this cross-examination, we would
conclude that there was no error in allowing this inquiry. This
examination represented appropriate impeachment of
defendant’s testimony on direct examination that he was not a
Sureño gang member. (People v. Hopson (2017) 3 Cal.5th 424,
443 [“It is . . . well established that the prosecution can impeach
a testifying defendant, just like any other witness”].)29
3. Testimony Regarding Defendant’s Possession of
Shanks
Defendant argues that reversible error occurred at the
guilt phase when one of Tinajero’s cellmates, Palacol, was
allowed to relate a statement by a sheriff’s deputy that
defendant had possessed shanks in jail. Defendant argues that
this statement amounted to inadmissible hearsay and its
introduction violated his rights to due process and a reliable
penalty determination under the United States and California
Constitutions. As described below, we will assume that there
was error under state law but find it harmless.
a. Facts
Palacol made two identifications of Tinajero’s killer
shortly after the murder. The first identification involved
Palacol being shown only a single photograph, of defendant. The
second identification involved six photographs. In questioning

29
Insofar as defendant may be understood to complain that
the jury could have relied upon this and other gang evidence for
improper purposes absent a limiting instruction by the trial
court, this argument has been forfeited by his failure to request
such an instruction in the proceedings below. (Hernandez,
supra, 33 Cal.4th at pp. 1051–1052.)

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Palacol about the first identification, the prosecutor showed
Palacol a photograph that had been marked as an exhibit and
asked him if he recognized it. Palacol said that he did, because
a sheriff’s deputy had shown it to him. When the prosecutor
asked, “What were the circumstances of you being shown that
photograph?,” Palacol began to answer, “He just, he said that he
was having —.” At that point defense counsel objected “as to
what the deputy said.” The prosecutor responded that the
statement was “not offered for the truth at this time.”
A sidebar conference followed, during which defense
counsel advised the court that Palacol would testify that the
deputy told him he had been having a problem with the person
in the photograph, “catching with him a bunch of shanks or a lot
of shanks in the jail.” Defense counsel argued that this
statement was “highly prejudicial” and “more prejudicial than
probative.” He also asserted that if the statement was not being
offered for the truth of the matter asserted, it was irrelevant.
The prosecutor responded that this detail was relevant to “the
circumstances of why [Palacol] was shown the photograph and
then how he makes the identification as the one in the murder.”
The prosecutor added that “while I know it may be prejudicial,
the court already has ruled we’ll be getting into the fact he’s had
shanks in jail,” so “it’s not like evidence they’re not going to
have,” making the prejudicial effect only “minimal.” The court
overruled the defense objection.
The prosecutor then resumed her examination of Palacol,
asking, “When the deputy was showing you this photograph,
what were the circumstances for why he was showing it to you?
What did he say?” Palacol answered, “He said he was having
trouble with this person finding shanks and stuff on him, and
he just showed it to me and asked me if that was the guy that

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

was in [my] cell that did that,” referring to the homicide. Palacol
told the deputy that it was.
b. Analysis
Defendant argues that the trial court should have
excluded the deputy’s statement regarding defendant’s
possession of shanks because it was hearsay (see Evid. Code,
§ 1200), irrelevant, and subject to exclusion under Evidence
Code section 352. Defendant further contends that jurors would
not have applied the limiting instructions that were given to
them regarding his violations of jail rules, described earlier in
this opinion, as extending to this reference of him possessing
shanks, meaning that the jury could have relied on the deputy’s
statement to infer that defendant had a criminal disposition.
In arguing that there was no error, the People assert that
“[h]ad the prosecutor not asked Palacol about the circumstances
surrounding the deputy’s inquiry, the jury would have been left
to wonder why the deputy showed Palacol only that one
photograph of appellant, rather than presenting him with a
photographic lineup as the detectives later did. This would have
fueled a defense argument that the single photograph show-up
was a suggestive identification that tainted Palacol’s
subsequent six-photograph identification. . . . [¶] But because
the trial court overruled appellant’s objection, the jury was able
to hear testimony suggesting the purpose of the deputy’s inquiry
was not to investigate the murder, but rather to follow up on a
far less serious rule violation by appellant.”
The People’s explanation is unpersuasive. It is clear that
the purpose of both identifications was to pinpoint Tinajero’s
killer, not to investigate past incidents involving the possession
of shanks. Insofar as it could more plausibly be asserted that

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the deputy showed Palacol defendant’s photograph when
investigating the Tinajero killing because defendant had
previously possessed a shank, that theory of admissibility
squarely implicates the hearsay issue identified by the
defense.30 And even apart from the hearsay question, if
evidence that a shank, syringe, and razor blade were found in
defendant’s cell was inadmissible at the guilt phase (as allowed
for earlier in our opinion), this assessment would have collateral
consequences for the Evidence Code section 352 calculus
applicable to the deputy’s statement.
Any error in allowing Palacol to recite the deputy’s
statement was incontestably harmless, however. As previously
explained in addressing defendant’s claim that the trial court
should not have allowed the jury to hear evidence that he
possessed shanks and other potential weapons while in jail, it is
not reasonably probable that defendant would have obtained a
more favorable result at the guilt phase had this evidence not
been presented. (Watson, supra, 46 Cal.2d at p. 836.)31 It is also
farfetched that the jury would have used this fleeting reference
to defendant’s possession of shanks as a basis for inferring a
criminal propensity given that it was instructed early on by the
trial court that evidence regarding “things that occur in jail” was

30
The People do not attempt to justify the presentation of
the disputed statement on the ground that, although hearsay, it
fell within an exception to the hearsay rule.
31
As with the other testimony regarding defendant’s
possession of contraband in jail, discussed ante, there is no
reason to regard any mistake in allowing Palacol to testify
regarding the deputy’s statement as being of such a magnitude
that it violated defendant’s constitutional rights to a
fundamentally fair trial and a reliable penalty determination.

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admissible only for the limited purpose of showing defendant’s
knowledge, and “not to show that he’s a person of bad character,”
and was reminded in closing instructions that evidence that
defendant committed crimes other than those for which he was
on trial could be considered only for a limited purpose, and not
“to prove that the defendant is a person of bad character or that
he has a disposition to commit crimes.” In light of these
considerations, as well as the compelling evidence of defendant’s
guilt offered at trial, it is not reasonably probable that any
mistake in allowing Palacol to recite the deputy’s statement
prejudiced defendant at the guilt phase.32 We also perceive no
possible effect on the penalty phase result, particularly because,
as has been discussed, evidence that defendant possessed a
shank (among other potential weapons) was admissible at that
stage of trial as section 190.3, factor (b) evidence. Even if
admitted in error, it is clear beyond a reasonable doubt that the
reference that Palacol testified to did not meaningfully affect the
body of evidence relied upon by the jury in deciding the
appropriate penalty or how this evidence was considered by the
jury.

32
Additionally, we note that in overruling a hearsay
objection raised by the defense during the testimony of the first
witness to take the stand at the guilt phase, the court instructed
the jury that “when I allow a statement by other than a witness
while testifying, . . . it is not to prove the truth of the content, it
is only to show information that the individual received, and
then that might explain their conduct after that, but it does not
prove that what that individual heard was true.”

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C. Penalty Phase Issues
1. Testimony Regarding Defendant’s Participation in
Mutual Combat
Defendant asserts error in the introduction of evidence at
the penalty phase that he was involved in a 2002 fight at the
jail. He argues that this evidence constituted inadmissible
hearsay and that its admission violated his constitutional rights
to confront witnesses against him (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15) and a reliable penalty determination. We
again assume error but find it harmless.
a. Facts
Prior to the trial, the prosecution provided notice that it
intended to offer section 190.3, factor (b) evidence that
defendant had been involved in “mutual combat” at the Men’s
Central Jail. Before the penalty phase commenced, defendant
objected to this incident on the basis that it did not involve
criminal activity and therefore could not be admitted under
factor (b). The trial court overruled the objection.
At the penalty phase, the People called Sheriff’s Deputy
Patrick Morean as its sole witness regarding the incident.
Morean testified that while on duty at the Men’s Central Jail on
June 30, 2002, he was alerted to a fight in a large communal
dayroom. When Morean arrived in the dayroom, he encountered
other deputies who “had already been interviewing and
separating all of the inmates that were involved.” As Morean
began to repeat what another deputy at the scene had told him,
defense counsel objected to “any hearsay.” This objection was
sustained. Defense counsel objected, again successfully, on the
same ground when the prosecutor asked Deputy Morean
whether he had obtained any information regarding who started

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Opinion of the Court by Cantil-Sakauye, C. J.

the fight. Trying a different tack, the prosecutor then asked
Morean — without objection — whether he had obtained
information about who had started the fight. Morean said that
he had. The prosecutor then inquired whether Morean made
any observations regarding defendant’s possible involvement in
the fight. Morean replied that he noticed defendant had redness
on both his left and his right knuckles and scratches on his back.
Morean wrote a disciplinary report concerning defendant’s
involvement in the incident.
On cross-examination, Morean testified that he did not see
the physical altercation take place and he did not know who the
first aggressor was. When Morean responded to the incident,
“everyone was being separated and interviewed at that time.”
He also explained that fights among inmates were very common
at the jail.
Commencing redirect examination, the prosecutor asked
Morean whether he had information that defendant was not the
victim. This question was met with another hearsay objection
by the defense. In the sidebar conference that ensued, defense
counsel stated that he was “planning to ask the court to strike
the entirety of this officer’s testimony because it appears from
the direct examination and cross-examination he had no
firsthand knowledge of the incident nor does he have a present
memory of that particular incident” and “renew[ed]” his “motion
to strike for lack of firsthand knowledge.” Counsel also argued
that the People were attempting to “bootleg hearsay information
into evidence through this officer.” The court denied the motion
“as to what he’s testified to,” observing that Morean “is a witness
to the injuries on the defendant,” but sustained the hearsay
objection.

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Responding to a rephrased question from the prosecutor,
Morean testified that he would not have written a report on
defendant had he possessed information that defendant was the
victim in the incident. The defense initially objected to this
exchange, but after saying, “Object,” counsel advised the court
that he would “let the answer stay.” In subsequent recross-
examination, Morean reiterated he did not personally observe
any fight and testified that “all of [his] information is what [he]
heard from someone else except for what [he] physically saw on
[defendant’s] knuckles and back.” After eliciting this testimony,
defense counsel stated, “there would be a motion,” which the
trial court denied.
b. Analysis
To repeat, among the factors to be considered at the
penalty phase of a capital case is “[t]he presence or absence of
criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied
threat to use force or violence.” (§ 190.3, factor (b).) “Criminal
activity,” in this context, means “the commission of an actual
crime, specifically, the violation of a penal statute.” (People v.
Phillips (1985) 41 Cal.3d 29, 72.) Although the criminal activity
need not have led to a conviction, the evidence nonetheless
“must be sufficient to ‘allow a rational trier of fact to find the
existence of such activity beyond a reasonable doubt.’ ” (People
v. Jackson (2014) 58 Cal.4th 724, 759 (Jackson).)
“[T]he proper admission of evidence under [section 190.3,]
factor (b) is not based on the abstract, definitional nature of the
offense, but on the conduct it involves.” (Delgado, supra,
2 Cal.5th at p. 583; see also People v. Thomas, supra, 52 Cal.4th
at p. 363.) “ ‘ “ ‘[A] trial court’s decision to admit “other crimes”

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 PEOPLE v. PINEDA
Opinion of the Court by Cantil-Sakauye, C. J.

evidence at the penalty phase is reviewed for abuse of discretion,
and no abuse of discretion will be found where, in fact, the
evidence in question was legally sufficient.’ ” ’ ” (Delgado, at
p. 582.) “ ‘[A]ny hypothetical juror whom the prosecution’s
evidence might not have convinced beyond a reasonable doubt
must be presumed to have followed the court’s instruction to
disregard the evidence’ ” if not adequately proved when, as is
the case here, an appropriate instruction to this effect was given
by the trial court. (Id., at p. 588; see also People v. Tully (2012)
54 Cal.4th 952, 1027 [“Whether the other crimes evidence is
significant enough to be given weight in the penalty
determination is a question for the jury”].)33
“ ‘ “[W]here the prosecution’s evidence shows a jailhouse
scuffle, the scene as witnessed does not suggest defendant may
have been acting in self-defense, and defendant presents no
evidence in mitigation, a finding of criminal assault is
justified.” ’ ” (Jackson, supra, 58 Cal.4th at p. 760.) Defendant

33
Regarding the consideration of section 190.3, factor (b)
evidence at the penalty phase, the jury here was instructed,
“Evidence has been introduced for the purpose of showing that
the defendant has committed the following criminal acts which
involve the express or implied use of force or violence or the
threat of force or violence: physical assaults and threats against
guards, possession of weapons, an attempted escape by violence,
refusing to comply with guards’ orders where compliance would
reduce danger to the guards, a fight with another inmate,
creating a disturbance which endangered another inmate, and
sending threatening letters. Before a juror may consider any
criminal acts as an aggravating circumstance in this case, a
juror must first be satisfied beyond a reasonable doubt that the
defendant did in fact commit the criminal acts. A juror may not
consider any evidence of any other criminal acts as an
aggravating circumstance.”

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argues that Morean had insufficient firsthand knowledge of any
fight that would support the 2002 incident’s admission under
factor (b), however. He asserts that “[u]nless it were placed in
context by the use of inadmissible hearsay evidence, the
admissible evidence — namely, Morean’s testimony that he
observed redness on the left and right knuckles of appellant’s
hands and scratches on his back . . . — would have had no
evidentiary value; the jury would be able to infer that appellant
had engaged in an act involving force or violence only by
indulging in speculation.”
The People respond that defendant forfeited this
argument by failing to timely object to Morean’s testimony, at
the outset of direct examination, that he had been alerted to a
fight in the dayroom. (See People v. Perry (1972) 7 Cal.3d 756,
781.) The People reason that this testimony was received
without objection, and neither the defense’s subsequently
sustained hearsay objections, counsel’s comment at sidebar
during redirect examination that he “was planning to ask the
court to strike the entirety of [Morean’s] testimony,” nor
counsel’s statement at the close of recross-examination that
“there would be a motion” gave the court timely and appropriate
notice that this testimony should be stricken. (See People v.
Caritativo (1956) 46 Cal.2d 68, 73 [“The rule is settled that
where a [party] deliberately permits evidence to be given
without objection in the first instance and then moves to strike
it out on grounds readily available at the time the evidence was
offered, [the party] waives such objections to the reception of the
evidence”]; King v. Haney (1873) 46 Cal. 560, 563; cf. Rose v.
State (1942) 19 Cal.2d 713, 742 [an overbroad motion to strike
is properly denied].) Defendant retorts that his initial hearsay
objection, although interposed a few questions after Morean

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first testified to the alert of a fight in the dayroom, “related to
any, which is to say, all . . . hearsay testimony by Deputy
Morean, and therefore operated to challenge the admission of
his testimony that a fight had occurred in the day room.”
Defendant further argues that trial counsel’s other protests
before the trial court also functioned as hearsay and
confrontation clause objections to this and other portions of
Morean’s testimony.
Defendant may well have the better of this argument. It
is nonetheless unnecessary for us to decide the forfeiture
question. Instead we may assume that the issue has been
preserved and further assume error, because it is clear that any
mistake in admitting Morean’s testimony was harmless under
the standard articulated in Brown, supra, 46 Cal.3d at page 448
and Chapman, supra, 386 U.S. at page 24. Even if were we to
assume an error or errors that weakened or fundamentally
compromised the proof regarding the dayroom incident as
section 190.3, factor (b) evidence, in determining whether to
sentence defendant to life without the possibility of parole or
death, the jury could not have attached much significance to
defendant’s participation in a jailhouse scuffle occurring almost
two years before he committed the far more serious offense of
murdering Tinajero. The circumstances of the charged crimes
and other properly admitted evidence of defendant’s criminal
conduct involving force, violence, or the threat of force or
violence undoubtedly loomed far larger in the jury’s mind when
deciding upon the proper penalty. Therefore, even assuming
that defendant preserved his claim of error and that this claim
has merit, we find no basis for reversal.

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2. Admission of Other Factor (b) Evidence
Defendant argues that the trial court should have
excluded other evidence admitted under section 190.3, factor (b)
at the penalty phase and that its failure to do so constituted
error under the death penalty statute and violated his state and
federal constitutional rights to due process, a fair trial by an
impartial jury, equal protection, and a reliable penalty
determination, as well as the constitutional bans on cruel and
unusual punishment. (U.S. Const., 6th, 8th, & 14th Amends;
Cal. Const., art. §§ 1, 7, 15, 16 & 17.) The discussion below
addresses this evidence in the sequence it was introduced at
that stage of trial.34
a. Disobeying Order
Defendant argues that the trial court erred in allowing the
prosecution to introduce evidence of an altercation with a
deputy sheriff at the jail. On December 7, 2004, Deputy Jason
Argandona was retrieving defendant from the court line and
escorting him back to his jail module. Defendant was in
handcuffs with a waist chain at the time. Argandona noticed
that defendant had something in his hands and was attempting
to conceal it in his waistband. Concerned that defendant might
be hiding a weapon, Argandona asked defendant to show his

34
Insofar as this claim also renews and extends defendant’s
challenge to the admission of evidence regarding his possession
of an altered paper clip to capture additional testimony offered
at the penalty phase regarding the use of paper clips to escape
from handcuffs, these arguments (assuming they have been
preserved) fail for the reasons given earlier in this opinion. As
has been explained, it is clear beyond a reasonable doubt that
evidence regarding defendant’s possession of an altered paper
clip and how distorted paper clips can be used as handcuff keys
did not affect the outcome at the penalty phase.

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hands and what he was holding. Defendant did not comply.
Instead, he grasped the object and lowered his center of gravity,
so that he “sort of ducked down and turned away” from
Argandona. Argandona initially described this as “a defensive
stance or possibly an offensive stance” and replied in the
affirmative when the prosecutor asked whether it “might” be
described as “like a fighting stance.” Argandona grabbed
defendant and placed him against the wall. Defendant
responded by calling him names. Argandona removed the object
from defendant’s front waistband. It turned out to be a bag of
potato chips. Defendant, having lost his canteen privileges, was
not supposed to have this item in his possession.
Defendant argues that this evidence was inadmissible at
the penalty phase because the incident described by Argandona
did not involve a crime involving force, violence, or the threat of
force or violence. The People respond that the evidence made
out a violation of section 148 — which prohibits resisting,
delaying, or obstructing a peace officer in the lawful
performance of the officer’s duties — involving an implied threat
of violence.
We need not decide whether Argandona’s testimony
qualified as proper section 190.3, factor (b) evidence because
defendant failed to raise a sufficient objection before the trial
court, forfeiting his claim of error on appeal. “ ‘If the accused
thinks evidence on any . . . discrete crime [introduced as
evidence in aggravation at the penalty phase] is too
insubstantial for jury consideration, he should be obliged in
general terms to object, or to move to exclude or strike the
evidence, on that ground.’ ” (People v. Turner (2020) 10 Cal.5th
786, 827 (Turner); see also People v. Montiel (1993) 5 Cal.4th
877, 928, fn. 23.) One way to register such an objection is

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through a motion in limine. “ ‘[A] motion in limine to exclude
evidence is a sufficient manifestation of objection to protect the
record on appeal when it satisfies the basic requirements of
Evidence Code section 353, i.e.: (1) a specific legal ground for
exclusion is advanced and subsequently raised on appeal; (2) the
motion is directed to a particular, identifiable body of evidence;
and (3) the motion is made at a time before or during trial when
the trial judge can determine the evidentiary question in its
appropriate context.’ ” (People v. Rowland (1992) 4 Cal.4th 238,
264, fn. 3.)
Here, defendant did not object to this evidence when it was
introduced at trial or request that Argandona’s testimony be
stricken from the record. Regarding a motion in limine, prior to
the penalty phase, the defense objected to “some of” the
incidents the People had identified as potential section 190.3,
factor (b) evidence. But the defense did not adequately
communicate that this objection was directed toward the
incident that Argandona testified to. Having failed to raise a
sufficiently specific objection to this evidence and there being no
reasonable basis for us to conclude that an objection would have
been futile, it is plain that defendant forfeited any challenge to
the admission of this testimony, and we decline to address the
merits of defendant’s claim of error.35

35
In any event, the introduction of this evidence could not
have prejudiced defendant under any standard, whether viewed
in isolation or in relation to the rest of the evidence offered at
trial.

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b. Evidence That Defendant Threatened Another
Inmate
Later in the penalty phase, Deputy Andrew Cruz testified
that on June 7, 2005, as he prepared to handcuff defendant in
advance of a court appearance, he heard defendant yelling,
“Fuck you, Benji,” and “You’re a rat” at another inmate. Cruz
testified that the inmate being addressed had provided some
information to deputies and that if someone is labeled a rat or a
snitch, “it’s almost like a death wish,” because “when other
inmates find out that [an inmate] is a rat, most inmates are
assaulted.” Based on his training and experience, Cruz believed
what defendant had said placed the other inmate’s well-being in
danger. When Cruz told defendant to stop, defendant did not
comply. He persisted and “incited the other inmates on the row
as well to begin calling [Benji] a rat,” creating what Cruz
regarded as an officer safety issue. When defendant was
handcuffed and escorted off the floor, the other inmates on the
row continued to yell, “Benji is a rat.” On cross-examination,
Cruz acknowledged that although Benji had provided some
deputy personnel with information, he did not know what that
information entailed.
After Cruz was excused from the stand, defense counsel
asked the court to instruct the jury to ignore his testimony on
the ground that defendant’s conduct, as testified to, was not a
crime. The prosecutor replied that defendant’s conduct
amounted to intimidation of a witness, citing sections 136.1,
137, 139, and 140. The court denied defendant’s request,
explaining, “[I]t calls for extreme measures for the person to be
called a rat. It doesn’t have to be true, may not have said
anything, but any inmate who hears that is likely to attack the
person in custody in a situation where he can’t defend himself.”

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On appeal, defendant renews his argument that the jury
should not have been allowed to consider Cruz’s testimony as
section 190.3, factor (b) evidence because defendant’s conduct
did not amount to a crime. Concerning section 140, defendant
argues that “[o]n its face, [defendant’s] statement that ‘Benji is
a rat’ did not express a ‘serious expression of an intent to commit
an act of unlawful violence.’ ” Instead, he argues, “[A]t most, the
statement expressed scorn or contempt for snitches. Indeed, the
statement evinces no intent to do anything whatsoever. This is
especially true of any statements [defendant] made after he was
handcuffed.” In making this argument, defendant relies upon
our decision in People v. Lowery (2011) 52 Cal.4th 419, 427
(Lowery), in which this “ ‘serious expression’ ” language
appears.36
The People regard defendant as having forfeited his
argument that this evidence was erroneously admitted. The
People also assert that this evidence comported with section
190.3, factor (b) because a juror reasonably could have found
that defendant’s conduct was “ ‘a serious expression of an intent
to commit an act of unlawful violence.’ ” (Lowery, supra,
52 Cal.4th at p. 427.) In the alternative, the People argue that
any error was harmless.
Unlike the situation with Argandona’s testimony, to which
the defense never specifically objected, here the defense asked
the court to instruct the jury to disregard Cruz’s testimony after

36
Defendant does not argue on appeal that section 140
requires a closer connection between the information provided
by a witness and the actual or attempted commission of a crime
than was shown by the evidence introduced below. We therefore
have no occasion to construe the statute’s precise parameters in
this respect.

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he was excused from the stand. We assume that this request to
strike preserved defendant’s claim of error (see Turner, supra,
10 Cal.5th at p. 827) and proceed to consider — and reject — the
claim on the merits.
Section 140 applies when a person “willfully uses force or
threatens to use force or violence upon the person of a witness
to, or a victim of, a crime or any other person . . . because the
witness, victim, or other person has provided any assistance or
information to a law enforcement officer, or to a public
prosecutor in a criminal proceeding or juvenile court
proceeding.” (Id., subd. (a).) “The acts proscribed in section
140 . . . take place because the witness, victim, or informant has
provided information or assistance to a law enforcement officer.
The statute is retrospective rather than prospective and
proscribes acts which are retaliatory rather than acts to
intimidate.” (People v. McDaniel (1994) 22 Cal.App.4th 278,
284, italics omitted.) This crime does not require “that the
defendant act with a specific intent to intimidate the particular
victim,” nor that the threat be communicated to the witness or
informant. (Lowery, supra, 52 Cal.4th at p. 426.) Nor does the
statute require an immediate capacity to carry out the threat.
(Id., at p. 428.) But it does penalize only “those threatening
statements that a reasonable listener would understand, in
light of the context and surrounding circumstances, to
constitute a true threat, namely, ‘a serious expression of an
intent to commit an act of unlawful violence’ (Virginia v. Black
[(2003)] 538 U.S. [343,] 359), rather than an expression of jest
or frustration.” (Id., at p. 427.)
We conclude that defendant’s testified-to conduct —
yelling, “You’re a rat” to a fellow inmate, refusing to stop when
ordered to do so, and instead continuing and inciting other

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inmates to join him in chanting “Benji is a rat” — could indeed
have been regarded as “ ‘a serious expression of an intent to
commit an act of unlawful violence’ ” (Lowery, supra, 52 Cal.4th
at p. 427) against Benji for having provided assistance or
information to sheriff’s deputies at the jail.
To understand whether a statement reasonably would be
understood as a threat, one must take into account all relevant
surrounding circumstances. (See In re George T. (2004)
33 Cal.4th 620, 637‒638 [construing § 422]; People v. Mendoza
(1997) 59 Cal.App.4th 1333, 1340 (Mendoza) [same]; Planned
Parenthood v. Amer. Coalition of Life (9th Cir. 2002) 290 F.3d
1058, 1079 [“without context, a burning cross or dead rat mean
nothing”].) Accounting for these facts, a juror reasonably could
have found beyond a reasonable doubt that defendant’s
persistent chanting of “Benji is a rat,” including his refusal to
stop after being ordered to do so and his involvement of other
inmates, conveyed a seriousness of purpose to inflict future
harm. (Cf. People v. Jurado (2006) 38 Cal.4th 72, 136 [§ 190.3,
factor (b) evidence that the defendant loudly referred to another
inmate as a “ ‘snitch’ ” in front of other prisoners, with the inmate
subsequently being assaulted, sufficient to show culpability for
aiding and abetting an assault]; Burns v. Martuscello (2d Cir.
2018) 890 F.3d 77, 91 [it is “well understood that inmates known
to be snitches are widely reviled within the correctional system,”
and “a number of courts have found an Eighth Amendment
violation where a guard publicly labels an inmate as a snitch,
because of the likelihood that the inmate will suffer great
violence at the hands of fellow prisoners”].) Although defendant
did not explicitly declare that he or anyone else would harm
Benji, “rigid adherence to the literal meaning of a communication
without regard to its reasonable connotations derived from its

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ambience would render [threat statutes] powerless against the
ingenuity of threateners who can instill in the victim’s mind as
clear an apprehension of impending injury by an implied menace
as by a literal threat.” (U.S. v. Malik (2d Cir. 1994) 16 F.3d 45,
50; see also Mendoza, supra, 59 Cal.App.4th at pp. 1340, 1341
[upholding conviction under § 422 where defendant’s statement
to victim that “ ‘you fucked up my brother’s testimony. I’m going
to talk to some guys from Happy Town’ ” reasonably could have
been construed, in context, as “a threat to bring a person to the
attention of a criminal street gang as someone who has ‘ratted’
on a fellow gang member”].)
Because the jury reasonably could have found beyond a
reasonable doubt that defendant manifested “ ‘a serious
expression of an intent to commit an act of unlawful violence’
[citation], rather than an expression of jest or frustration”
(Lowery, supra, 52 Cal.4th at p. 427), defendant’s claim of error
fails.
c. Defendant’s Letter to Della Rose Santos
During the penalty phase, the prosecution’s gang expert,
Clift, was called back to the stand to testify regarding the
September 2006 letter to Della Rose Santos, including the
portion of the letter that stated, “Oh, yeah, Grumpy told me
about that guera that turned over the dime. Their treating him
bad but that will be straighten out soon we ride for the sur tu
sabes babe, ‘one for all, all for one.’ ” The letter was signed,
“Chingon,” followed by a set of symbols (three dots and two slash

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lines).37 The prosecution argued that this letter was admissible
as section 190.3, factor (b) evidence at the penalty phase because
it evinced a threat against a witness. (§ 140.) After hearing
argument from the parties, the trial court allowed the
prosecution to offer portions of the letter, as interpreted by Clift,
as section 190.3, factor (b) evidence.
In his testimony, Clift explained that “Grumpy” was the
street name of another gang member who was incarcerated on a
murder charge, and who was housed on the same cell row as
defendant. Clift interpreted the letter as saying that the “guera”
had snitched or ratted on Grumpy, that Grumpy had been
locked down and isolated from the general population, and that
the person who had snitched on Grumpy would soon “be taken
care of,” meaning that the person would be either killed or
assaulted. Clift further testified that defendant was “offering
up his services to help” with the assault or killing, “whether he
does it himself or he assists in committing the murder or passes
the word on to other people that would get this so-called snitch.”
According to Clift, the symbols appearing next to “Chingon” in
the letter’s closing signified the Mexican Mafia, explaining that
“whenever a Sureno gang member . . . . believes in the Mexican
Mafia’s philosophies, they will identify their gang with the
No. 13,” which the symbols reflected.

37
When he was cross-examined at the guilt phase of trial,
defendant acknowledged writing the letter and explained that
Grumpy was his friend and neighbor in jail, who was in custody
on a murder charge. He testified that the reference in the letter
to something being “straighten[ed] out” meant that “we were
going to talk to the cops to leave him alone because they were
beating him up.”

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We agree with the People that Clift’s testimony concerning
the letter, and the letter itself, were properly admitted as section
190.3, factor (b) evidence because the letter could have been
construed as threatening a witness, as prohibited by section 140.
Defendant argues that, contrary to Clift’s interpretation, the
letter is most reasonably interpreted not as a “ ‘serious
expression of an intent to commit an act of unlawful violence’ ”
(Lowery, supra, 52 Cal.4th at p. 427), but instead as merely, in
defendant’s words, “an accurate comment on the ‘guera’s’
predicament: he had snitched, and for that reason he was now
in danger at the hands of virtually any [Sureño] member with
whom he came in contact.” As the People argue, a juror could
have reasonably found otherwise with the requisite conviction.
Even though the portion of the letter providing, “Oh, yeah,
Grumpy told me about that guera that turned over the dime.
Their treating him bad but that will be straighten out soon” does
not expressly vow any personal involvement by defendant, the
accompanying statement, “we ride for the sur tu sabes babe, ‘one
for all, all for one’ ” suggests that defendant would be personally
involved in threatening or committing violence against the
informant. There was no error in submitting this incident to the
jury as a crime involving a threat of violence captured by section
190.3, factor (b).
d. Defendant’s Letter to Ursula Gomez
On January 8, 2007, during a break in the presentation of
the defense case at the penalty phase, the prosecutor advised
the court that jail staff had intercepted more letters authored by
defendant. The prosecutor explained that defendant had tried
to smuggle these letters through his legal mail the previous
week, only to have them seized by authorities. One of these
letters was addressed to a state prison inmate named Ursula

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Gomez; another to an inmate named Robert De La Cruz. The
People requested permission to present these letters, and the
circumstances surrounding their seizure, as evidence in its
rebuttal presentation at the penalty phase. The defense
objected, arguing that these letters did not involve a crime of
violence and therefore did not represent valid section 190.3,
factor (b) evidence.
The trial court ruled that portions of these letters involved
threats prohibited under section 140 and were for that reason
admissible as section 190.3, factor (b) evidence. Regarding the
letter to Gomez, the trial court also noted that “[p]art of this is
rebuttal to the evidence that was offered in the defense, that he
actually has been given ethics training by the family. That was
one of the justifications.” The trial court also allowed the
prosecution to show that the letters were seized as smuggled
mail, explaining, “We’ve gone into a lot of what has happened in
the county jail, and that’s why I’m allowing the defense to go
into the circumstances of his confinement if he gets an LWOP
[life without the possibility of parole] sentence from the jury,
and so this is part of an exploration of that issue. Is he going to
. . . — present a future danger if he’s in LWOP custody,
whatever that turns out to be.”
Clift was recalled to the stand to testify regarding the
letters. Sections of the letter to Gomez were redacted and not
put before the jury. Unredacted parts of the letter provided,
“News papers have been making me a celebrity. Not that I don’t
like it I love publicity. Choww! I’ll be handin out autographs so
no mas pide si gustas ya que asta las estrellas te doy ati mija.
Ha! Ha! I’m a lifer wacha and still feel like a million bucks! . . .
[¶] I’m a dedicated Sureno to the fullest and death and through
out my life style I stood for mines. When I got torcido I cut old

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boy loose and put on the zapatos to fight it myself. But el destino
had plans for him you know the rest. [¶] Pa mi no me importa
if it’s a guy or girl that has to be cut loose in times like these you
weigh things whoever has more weight stays and the less weight
que se eche aperder. But some people do not have the balls to
say, ‘Sabes, I got this go ahead and take off.’ Once the trial is
over the loose one better look out. I don’t know much about the
situation but if homie was sunk and according to what I heard a
while back homie in deed should have stood up and taken that
step further on his own. Pero eso se require los que me sobran!
And no you ain’t wrong in. . . . [¶] The D.A. is a joke I was
laughing through out my trial. All them compliments from her
and the judge, serio, both kept saying I’m a smart motherfucker
and that’s why I should get death to stop anything in the future
they assume I’ll do up state. Again all lies I’m just a lil guy trying
to survive. [Here appeared a drawing of a smiling face,
winking.] . . . [¶] Okay and can you go, say, from 505 to 508?
Or B yard to C or D yard? Then that means you could see and
talk to hinas from B, C and D yard from 9 am to 3 pm Mon —
Fri? Man! Puro pinche party how about pisto? I know drugs
are everywhere and pisto tambien but do you drink it? How
about getting high? I likes to cook too and know how to work
with this canteen stuff so manda some recetas so I can hook it
up when I hit state. I don’t know if the canteen stuff you girls
get is the same as for us in a Level 4 yeard but I think it’s cool
que no? . . . [¶] Listen if I run into Cris I will advice him to do
right and I wont mention we talked about it. I’m also gonna talk
to a señor and see his response.”
The letter was signed “Chingon Kanpol” with the text “ES
Wilmas GTL” under the signature.

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Clift gave the jury his interpretations of certain portions
of the letter. He testified that the last passage within the
letter — “Listen if I run into Cris I will advice him to do right
and I wont mention we talked about it. I’m also gonna talk to a
señor and see his response” — meant that defendant was “going
to talk to Cris, Cris being the co-defendant of this woman that
he’s writing a letter to, about the case [she was involved in],
telling him that he should take all responsibility for the crime
that Cris and this lady he’s writing the letter to were involved
in, and he’s going to go talk to a senor and see what that senor
recommends, ‘senor’ meaning a Mexican Mafia member.”
According to Clift, defendant would ask the señor “if Cris should
be killed or he should be beat up or threatened or taxed.” The
prosecutor clarified, “[S]o in reading this, is it your belief or
opinion that the defendant is willing to harm Cris if he doesn’t
do what he advises him to do as in taking the entire rap for the
crime that they committed together?” Clift answered, “[T]hat’s
correct.” After Clift testified regarding the letter to Gomez, the
defense stipulated to the admission of the letter to De La Cruz
in its entirety.38

38
The letter to De La Cruz included defendant’s statements,
“I ain’t trippin’, this is the way we gangster’s roll the party ain’t
over it’s just getting started. [This statement was followed by a
drawing of a smiling face.] On the other hand la doña is takin
it hard I expressed what’s in the near future and she felt better.
She just blaims herself for my life style and she shouldn’t.
I chose this vida and I’m gonna die living it the love for my jefa
goes without saying but I lead a life that I can no longer walk
away. She understands. . . . [¶] . . . My point is don’t get
involved in the sureño politic because you do not have anyone to
back you up if you make a minor error. A lot of homies don’t,

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The People assert, again, that the letter to Gomez was
admissible as section 190.3, factor (b) evidence because it
manifested another threat to a witness prohibited by section
140. The People also argue that the letter and the
circumstances surrounding its seizure were admissible to rebut
evidence the defense had offered in mitigation through its
correctional consultant. We question whether the letter was
admissible under section 190.3, factor (b) as evincing a violation
of section 140, but agree that it, and testimony regarding how it
was obtained, were admissible as rebuttal evidence.
The People justify the admission of this evidence under
section 190.3, factor (b) on the ground that “insofar as the letter
indicated appellant would arrange with a ‘senor’ to have Cris
attacked, it involved a threat ‘to use force or violence upon the
person of a witness to a crime’ ” prohibited by section 140. Yet
section 140 reaches such threats only when they occur “because
the witness, victim, or other person has provided any assistance
or information to a law enforcement officer, or to a public
prosecutor in a criminal proceeding or juvenile court
proceeding.” (Id., subd. (a).) The People point to no testimony
or other evidence in the record indicating that Cris had provided
assistance or information to a law enforcement officer or
prosecutor. The ostensible purpose of defendant’s letter was to
get Cris to talk to law enforcement and claim responsibility for

thats why they don’t stand up to the repas. Pero si tienas
problemas for example the crimy issue you mention to me I could
assist and the señores I know Tambien. If something needs to
be done don’t volunteer to do it wait till you’re asked. But if you
feel you can’t accomplish it for whatever reason speak up before
you comit yourself. Southsider and sureño are two different
cosas.”

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the crime, not to retaliate for his having provided information or
other assistance to authorities.
The People offer no other statutory hook justifying the
admission of this letter under section 190.3, factor (b). Yet that
does not mean the trial court erred in allowing the letter and the
circumstances surrounding its recovery to be offered as
evidence. The letter and defendant’s attempt to smuggle it out
of jail through his mail amounted to proper rebuttal proof to
defense evidence that had been offered at the penalty phase.
“A trial court has broad discretion when determining the
admissibility of rebuttal evidence . . . .” (People v. Simon (2016)
1 Cal.5th 98, 145.) When the defense elicits testimony from
experts suggesting that the defendant will not be dangerous in
prison, the prosecution may, within reasonable parameters,
offer proof suggesting the opposite. (People v. Benson (1990)
52 Cal.3d 754, 798.)
Before the prosecution obtained a ruling on the
admissibility of the letters to Gomez and De La Cruz, the
defense announced that it intended to offer testimony from its
correctional consultant, Esten. The defense would characterize
this testimony as concerned with “the ability of the correctional
department to secure Mr. Pineda,” with defense counsel later
explaining that “[t]he bottom line of what I plan to present is
that the Department of Corrections can house him, and he
would not be a threat to another inmate nor to the officers who
protect the facility and the inmates.”
When called to the stand, Esten described the conditions
at the facilities where defendant was most likely to be housed,
should he to be sentenced to life without the possibility of parole.
This testimony touched upon the safety precautions taken at

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those institutions. In response to defense counsel’s question
whether defendant would pose a danger to inmates or staff if put
in a secure housing unit, Esten replied, “I can’t say that. I can
only tell you that the California Department of Corrections and
Rehabilitation has means and ways of dealing with inmates of
every ilk. [¶] Some of the disciplinaries that I have seen that
he has been involved in in the course of the 90 cases I have
reviewed are of the most serious. That is what a security
housing unit is made for. That is what an indeterminate term
in a security housing unit is designed for. [¶] Will he continue
such behavior? I’m not a seer. I can’t tell you yes or no. I don’t
know. I can tell you that he has been disciplinary free since July
30 of ’05. That in itself, given the previous record that he had,
is quite remarkable, so it’s saying that he can do it when he sets
his mind to it.”
In other testimony elicited by the defense, Esten
acknowledged that although one of the facilities that might
house defendant, should he be sentenced to life without the
possibility of parole, had been designed to break inmates’ gang
allegiances, “for the most part, it has not worked . . . . [M]any of
them are still gang members and continue in the activities
that . . . put them there.” Upon follow-up questions from the
defense, Esten also testified that at such facilities, inmates
tended to band together along ethnic and geographic lines and
that “[defendant] is a Southern Mexican. He will run with other
Southern Mexicans [in prison]. If he chooses not to run with
other Southern Mexicans, he will receive pressure from those
who are grouped together and essentially forced into that type
of behavior or be excluded from association with them, which in
many cases can be worse than being associated with them.”

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The evidence regarding defendant’s letter to Gomez,
including his attempt to smuggle this letter through his legal
mail, represented a proper response to Esten’s testimony. Proof
that defendant had recently misused his legal mail privileges
undermined the expert’s surmise that defendant may have
turned a new leaf by being “disciplinary free” since July 2005.39
The contents of the letter to Gomez also were responsive to
Esten’s point that “the California Department of Corrections
and Rehabilitation has means and ways of dealing with inmates
of every ilk.” The letter’s contents gave bite to the possibility
that, notwithstanding this testimony, defendant might
participate in gang activity at a facility where he would serve a
sentence of life without the possibility of parole — as Esten
conceded had occurred with other inmates.40
The conclusion that the letter’s contents and the
circumstances surrounding its interception represented proper
rebuttal evidence finds support in our treatment of a similar
issue in People v. Schultz (2020) 10 Cal.5th 623. The defense
evidence in mitigation there also included testimony from a
penology expert who opined that the “defendant would conduct
himself in an obedient and cooperative manner if sentenced to
life in prison without the possibility of parole.” (Id., at p. 664.)

39
The trial court also allowed the prosecution to cross-
examine Esten and offer evidence in its rebuttal case regarding
the December 29, 2006 search of defendant’s cell that yielded
contraband, but it did not permit the prosecution to inform the
jury that this incident involved pornographic material.
40
This evidence having substantial rebuttal value that was
not substantially outweighed by countervailing considerations,
we reject defendant’s argument that it should have been
excluded for all purposes under Evidence Code section 352.

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The trial court allowed the prosecution to respond by
introducing evidence regarding (1) the defendant’s gang tattoos,
which likely had been obtained in prison; (2) defendant’s
correspondence with a gang member (though excluding the
letters’ contents); and (3) the use of friendly appellations and
valedictions by defendant and his correspondent in these letters.
(Id., at pp. 665‒666.) We held that the prosecution’s evidence
amounted to fair rebuttal, citing to past cases that have reached
similar conclusions on analogous facts. (Id., at pp. 668–670,
citing, e.g., People v. Mattson (1990) 50 Cal.3d 826, 878.) With
regard to the letters, we explained, “[T]he fact defendant and a
former leader of a white supremacist gang had exchanged
letters in which defendant referred to the former gang leader as
‘homey’ created an inference that undermined the expert
testimony that defendant would make a positive adjustment to
life in prison.” (Schultz, at p. 669.)
If there was any error in admitting the letter to Gomez,
then, the mistake was that jurors should not have been allowed
to consider its contents as section 190.3, factor (b) evidence — as
the penalty phase jury instructions (which referenced “sending
threatening letters” among the factor (b) evidence that was
before the jury) allowed, and the prosecution’s closing
arguments encouraged, them to do. We do not regard any such
misstep as having prejudiced defendant, however. Given the
permissible use of the letter as rebuttal evidence, as well as the
circumstances of the crime and the other section 190.3, factor (b)
evidence — including the letter to Della Rose Santos that could
have been construed as threatening an informant and was, as
previously determined, properly submitted to the jury as
involving a possible violation of section 140 — it is not
reasonably possible that the penalty phase result was affected

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by allowing the jury to consider this evidence as potentially
aggravating on the specific ground that it manifested a crime
involving a threat of force or violence.
3. Trial Court’s Role with Factor (b) Evidence
Defendant also argues that the trial court erred when it
instructed the jury at the close of the penalty phase that
evidence had been introduced for the purpose of showing
defendant had committed “criminal acts which involve the
express or implied use of force or violence or the threat of force
or violence” and then summarized the section 190.3, factor (b)
evidence that had been offered by the People. Defendant asserts
that the characterization of this evidence as “involv[ing] the
express or implied use of force or violence or the threat of force
or violence” usurped the role of the jury to determine whether
these acts were in fact of such character, and for that reason
contravened the death penalty statute and violated his state and
federal constitutional rights to a jury trial, due process, and a
reliable penalty determination.
As defendant acknowledges, we have in prior cases
rejected his argument regarding the respective roles of the court
and the jury in connection with section 190.3, factor (b) evidence.
We have determined that although “[t]he question whether the
acts [offered as factor (b) evidence] occurred is certainly a factual
matter for the jury, . . . the characterization of those acts as
involving an express or implied use of force or violence, or the
threat thereof, [is] a legal matter properly decided by the court.”
(People v. Nakahara (2003) 30 Cal.4th 705, 720; see also
Delgado, supra, 2 Cal.5th at pp. 588–590.) Defendant provides
no persuasive reason why we should reconsider our prior
conclusions, and we decline to do so.

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4. Challenges to the Death Penalty and to Penalty
Phase Jury Instructions
Defendant attacks certain jury instructions that were
given at his trial and various facets of our state’s death penalty
statutory scheme. We reject these arguments, as we have done
in the past, as set out below.
The roster of death-eligible defendants under section
190.2 is not impermissibly overbroad; “California homicide law
and the special circumstances listed in section 190.2 adequately
narrow the class of murderers eligible for the death
penalty . . . .” (Demetrulias, supra, 39 Cal.4th at p. 43; see
People v. Leon (2020) 8 Cal.5th 831, 853 (Leon).)
Section 190.3, factor (a)’s direction that, in determining
the appropriate penalty, the jury shall take into account any
relevant “circumstances of the crime of which the defendant was
convicted” does not result in the arbitrary and capricious
imposition of the death penalty or cause California’s capital
sentencing scheme to violate the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
(Leon, supra, 8 Cal.5th at p. 853; People v. Winbush (2017)
2 Cal.5th 402, 488 (Winbush).)
We adhere to our earlier precedents holding that (1) the
death penalty statute does not violate the United States
Constitution insofar as it does not require findings made beyond
a reasonable doubt regarding the existence of specific
aggravating factors (other than section 190.3, factors (b) and
(c)), that aggravating factors outweigh mitigating factors, or
that death is the appropriate sentence (Turner, supra,
10 Cal.5th at p. 828; People v. Miles (2020) 9 Cal.5th 513, 605–
606); (2) a jury need not be instructed that the State has the

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burden of proof or persuasion regarding the existence of any
factor in aggravation (again, except for section 190.3, factors (b)
and (c)), whether aggravating factors outweigh mitigating
factors, and the appropriateness of the death penalty; nor that
it is presumed that life without the possibility of parole is an
appropriate sentence (Turner, at p. 828; People v. Romero and
Self (2015) 62 Cal.4th 1, 57; People v. Adams (2014) 60 Cal.4th
541, 581; People v. Cruz (2008) 44 Cal.4th 636, 681); and (3) the
death penalty scheme does not violate the Fifth, Sixth, Eighth,
or Fourteenth Amendments to the United States Constitution
for failing to require “unanimous findings as to proof of each
aggravating factor or unadjudicated crime” (Turner, at p. 828).
There was also no error in the trial court’s failure to
instruct the jury that there was no burden of proof, except again
as to prior convictions and conduct admitted under section
190.3, factors (b) and (c). (People v. Rivera (2019) 7 Cal.5th 306,
347.)
The “so substantial” language within CALJIC 8.88 is
neither overbroad nor unconstitutionally vague. (Leon, supra,
8 Cal.5th at p. 853.) This instruction is also not constitutionally
deficient for failing to explicitly instruct jurors that they are to
return a sentence of life without the possibility of parole if they
determine that the mitigating factors outweigh the aggravating
factors. (Chhoun, supra, 11 Cal.5th at p. 55.)
The fact that the penalty phase jury instructions here did
not set forth a burden of proof, except for the jury’s consideration
of section 190.3, factors (b) and (c) evidence, did not
impermissibly foreclose the consideration of constitutionally
relevant mitigating evidence by improperly shifting burdens to
the defense. (People v. Pearson (2013) 56 Cal.4th 393, 478.) Nor

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is an instruction explaining that jurors need not unanimously
agree regarding the existence of particular mitigating factors
constitutionally required (Bryant, supra, 60 Cal.4th at p. 457);
here, in any event, the jury was instructed at the close of the
penalty phase that it “need not be unanimous in finding that an
aggravating or a mitigating circumstance exists.”
The lack of a requirement that the jury make written or
other specific findings at the penalty phase does not foreclose
meaningful appellate review of defendant’s sentence or violate
defendant’s rights under the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. (Leon, supra,
8 Cal.5th at p. 853; Winbush, supra, 2 Cal.5th at p. 490.)
The use of adjectives such as “extreme” and “substantial”
in describing certain kinds of mitigating evidence under section
190.3 (e.g., § 190.3, factors (d), (g)) does not violate the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution. (Turner, supra, 10 Cal.5th at p. 828.)
Defendant contends that the trial court’s failure to delete
sentencing factors that are inapplicable to his case violated his
constitutional rights. Defendant identifies two factors as
inapposite but nevertheless included in the court’s
instructions — section 190.3, factor (e) (whether or not the
victim was a participant in the defendant’s homicidal conduct or
consented to the homicidal act) and factor (f) (whether the
defendant reasonably believed the circumstances morally
justified or extenuated his conduct). But we have held that
“[t]he court is not constitutionally obligated to delete
inapplicable sentencing factors” (Turner, supra, 10 Cal.5th at
pp. 828–829), and defendant offers no good reason why we
should reach a different conclusion here.

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The absence of a specific advisement in the jury
instructions regarding which of the sentencing factors set forth
in CALJIC 8.85 were aggravating, which were mitigating, and
which could be either aggravating or mitigating depending on
the jury’s assessment of the evidence did not violate defendant’s
constitutional right to a reliable and individualized sentencing
determination. (Leon, supra, 8 Cal.5th at p. 854.)
The absence of intercase proportionality review as part of
capital sentencing did not violate defendant’s constitutional
rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. (Turner, supra,
10 Cal.5th at p. 829; Leon, supra, 8 Cal.5th at p. 854)
The fact that the penalty phase of a death penalty trial
does not incorporate certain procedures found in noncapital
trials does not violate equal protection. (Turner, supra,
10 Cal.5th at p. 829; People v. Burney (2009) 47 Cal.4th 203, 268;
People v. Manriquez (2005) 37 Cal.4th 547, 590.)
California’s use of the death penalty, whether at all or, in
defendant’s words, “regular[ly],” does not violate international
law or evolving standards of decency in violation of the Eighth
and Fourteenth Amendments to the United States Constitution.
(Turner, supra, 10 Cal.5th at p. 829; Leon, supra, 8 Cal.5th at
p. 854.)
D. Cumulative Error
Finally, defendant argues that even if individual errors at
trial were harmless, their cumulative impact requires reversal
of the judgment below. We disagree.
The foregoing analysis has held or assumed that the
following errors may have occurred at trial, with the claims of
error being preserved (or assumed to have been preserved) by

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the defense: (1) the premature introduction of evidence
regarding defendant’s possession of contraband in jail; (2) the
admission of evidence concerning an altered paper clip and the
possible use of such a clip; (3) Palacol’s recitation of a guard’s
reference to defendant possessing shanks in jail; (4) the
admission of evidence that defendant was involved in a jailhouse
fight in 2002; and (5) the submission of the Gomez letter to the
jury as section 190.3, factor (b) evidence, as opposed to it being
used only for rebuttal. Even if we were to regard all of these as
missteps to determine their collective impact, we perceive no
prejudice under any standard.
The most compelling argument for finding prejudice
relates to the impact this evidence might have had in
persuading jurors that defendant was so incorrigibly dangerous
as to make death the appropriate penalty. Yet there is no
realistic possibility that this evidence altered the perception
generated by other, properly admitted evidence — most notably,
the incident in which defendant threatened to stab a jail guard
and kicked another; defendant’s threatening of another inmate
by calling him a “rat” and leading other inmates to chant the
same; the statements defendant made in his letter to Della Rose
Santos; and the circumstances of the charged crimes, especially
the murder of Tinajero, in which defendant navigated his way
around jail security to kill another inmate, his erstwhile
coperpetrator. Even recognizing the significant emphasis the
prosecutor placed on the section 190.3, factor (b) evidence in her
closing statement at the penalty phase, it is clear beyond any
reasonable doubt that any mistakes in the admission of certain
evidence did not affect the outcome. “ ‘Defendant has
demonstrated few errors, and we have found each error or
possible error to be harmless when considered separately.

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Considering them together, we likewise conclude that their
cumulative effect does not warrant reversal of the judgment.’ ”
(People v. Panah (2005) 35 Cal.4th 395, 479–480; see also People
v. Johnson (2019) 8 Cal.5th 475, 525 [finding four possible errors
at the penalty phase nonprejudicial, whether considered alone
or together].)
III. DISPOSITION
We affirm the judgment in its entirety.

CANTIL-SAKAUYE, C. J.

We Concur:
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.

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 PEOPLE v. PINEDA
S150509

Concurring Opinion by Justice Liu

The penalty phase of this capital case raises an issue
under the Sixth Amendment to the United States Constitution
that I discussed recently in People v. McDaniel (2021) 12 Cal.5th
97, 157 (McDaniel) (conc. opn. of Liu, J.). The issue is this: In
Apprendi v. New Jersey (2000) 530 U.S. 466, the high court held
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Id. at p. 490.) “[T]he ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. [Citations.] In other
words, the relevant ‘statutory maximum’ is not the maximum
sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings.”
(Blakely v. Washington (2004) 542 U.S. 296, 303–304 (Blakely).)
“Under [California’s] death penalty scheme, ‘the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant’
(Blakely, supra, 542 U.S. at p. 303) upon a conviction for first
degree murder and special circumstance true finding — with
nothing more — is life imprisonment without parole. A death
verdict is authorized only when the penalty jury has
unanimously determined that ‘the aggravating circumstances
outweigh the mitigating circumstances’ (Pen. Code, § 190.3; see
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 PEOPLE v. PINEDA
Liu, J., concurring

People v. Brown (1985) 40 Cal.3d 512, 541–542, fn. 13, revd. on
other grounds sub nom. California v. Brown (1987) 479 U.S.
538) — which necessarily presupposes that the penalty jury has
found at least one Penal Code section 190.3 circumstance to be
aggravating. . . . Our cases have not satisfactorily explained
why this additional finding of at least one aggravating factor,
which is a necessary precursor to the weighing determination
and is thus required for the imposition of a death sentence, is
not governed by the Apprendi rule.” (McDaniel, supra, 12
Cal.5th at pp. 158–159 (conc. opn. of Liu, J.).) In McDaniel, I
discussed this concern at some length and concluded that “the
20-year arc of the high court’s Sixth Amendment jurisprudence
[since Apprendi] raises serious questions about the
constitutionality of California’s death penalty scheme.” (Id. at
p. 176.) I continue to believe that “this court, as well as other
responsible officials sworn to uphold the Constitution, [should]
revisit this issue.” (Ibid.)
The case before us illustrates the problem. At the penalty
phase, the jury was instructed that any unadjudicated criminal
acts by defendant Santiago Pineda had to be proven beyond a
reasonable doubt before they could be considered an
aggravating circumstance under Penal Code section 190.3,
factor (b). (Maj. opn., ante, at p. 83, fn. 33.) The jury was also
specifically instructed that unanimity was not required as to
factor (b) findings. Pineda argues that this lack of a unanimity
requirement violates due process and the Fifth, Sixth, Eighth,
and Fourteenth Amendments. He acknowledges we have
rejected this claim (see People v. Ward (2005) 36 Cal.4th 186,
221–222; People v. Anderson (2001) 25 Cal.4th 543, 590) but
asks us to reconsider our precedent.

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Liu, J., concurring

In McDaniel, I explained the issue this way: “Suppose the
prosecution introduces evidence of three prior criminal acts (A,
B, and C). Some jurors may find that A was proven beyond a
reasonable doubt, but not B and C; other jurors may find B
proven, but not A and C; others may find C proven, but not A
and B; and still others may find none proven at all and instead
find some other circumstance to be aggravating. Or the jurors
may find various prior crimes proven beyond a reasonable doubt
but differ as to which one or ones are aggravating. There is little
downside for the prosecution to provide a broad menu of
aggravating evidence for the penalty jury to consider . . . . Our
capital sentencing scheme allows the penalty jury to render a
death verdict in these circumstances. But I am doubtful the
Sixth Amendment does.” (McDaniel, supra, 12 Cal.5th at
pp. 159–160 (conc. opn. of Liu, J.), citation omitted.) The facts
here present exactly this issue.
The prosecutor introduced evidence of several prior crimes
allegedly committed by Pineda while in custody: (1) a June 2002
fight in the jail dayroom; (2) Pineda’s possession of a shank in
his jail cell in March 2003; (3) a December 2003 incident in
which Pineda threatened another inmate to obtain his
wristband, which he used in an attempted escape; (4) his
possession of a razor blade removed from its casing and a
syringe in his cell in July 2004; (5) a November 2004 incident in
which he threatened to stab a deputy and assaulted another
deputy by kicking and spitting at him; (6) a December 2004
incident in which Pineda concealed an object (later found to be
a bag of potato chips) from a deputy and, when challenged,
assumed what the deputy described as a “defensive stance or
possibly an offensive stance”; (7) a September 2005 incident in
which he yelled that another inmate was a “rat” and led other

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 PEOPLE v. PINEDA
Liu, J., concurring

inmates to chant the same; (8) a June 2005 incident in which he
was found to be in possession of an altered paperclip, which, a
deputy testified, could be used as a handcuff key; (9) Pineda’s
September 2006 letter to Della Rose Santos, which was
interpreted by a gang expert as an offer to assault or kill
someone who had snitched on another member of the gang; and
(10) his January 2007 attempt to smuggle out personal letters
as “legal mail,” including one letter that appeared to refer to his
murder of Tinajero and offered to pressure the recipient’s
codefendant to take responsibility for their crime.
Discussing this evidence, the prosecutor said in her
penalty phase closing argument: “This is where the defendant
has earned his death sentence, because he has proven it over
and over and over again that even locked up, he is not safe. Even
locked up, he can get around the rules. Any rule you throw at
him, he finds a way to circumvent it. [¶] . . . This evidence,
ladies and gentlemen, of the defendant’s conduct while in
custody proves to us that if the defendant is allowed to live,
others [sic] lives are in danger. Anybody who crosses this
defendant’s path or the paths of his friends, for that matter, is
in danger if this defendant is given the gift of life.” The
prosecutor subsequently added: “And this evidence, this [Penal
Code section 190.3,] factor (b) evidence . . . is enough to tip that
scale in favor of a death verdict.” Further, the prosecutor
specifically told the jury that unanimity was not required with
respect to the factor (b) evidence: “So before you can use the
evidence from factor (b) to add to the aggravating factors, you
must be satisfied beyond a reasonable doubt that we have
proven each instance, each thing that happened here that’s up
on this chart. [¶] But it’s important to know that this is an
individual determination. Each one of you individually decides

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 PEOPLE v. PINEDA
Liu, J., concurring

do I believe beyond a reasonable doubt that he was involved in
the fight in the day room? Do I individually believe he had a
shank in his jail cell? [¶] You don’t go back into the jury room
and talk amongst each other did you believe it beyond a
reasonable doubt? Did you believe it beyond a reasonable doubt?
No. It’s your decision. If you believe it happened beyond a
reasonable doubt, then you can use it in your determination as
to the appropriate verdict. It doesn’t matter what your fellow
jurors think about that.”
I find it troubling that the Penal Code section 190.3, factor
(b) evidence offered here was not particularly strong. For
example, the primary evidence that Pineda participated in a
fight in the Men’s Central Jail dayroom in June 2002 was the
deputy’s observation that Pineda’s knuckles were red and that
he had scratches on his back. Coupled with the deputy’s
testimony that he would not have written a report on Pineda for
the incident if he had reason to believe that Pineda was the
victim, the prosecutor asked the jury to infer from this evidence
that Pineda was engaged in mutual combat and not self-defense,
asserting that “you don’t get redness on your knuckles unless
you’re hitting somebody else.” The incident in which Pineda was
alleged to have yelled, “You’re a rat” at another inmate would
constitute criminal conduct in violation of Penal Code section
140 only if the jury found that “a reasonable listener would
understand [this statement], in light of the context and
surrounding circumstances, to constitute a true threat, namely,
‘a serious expression of an intent to commit an act of unlawful
violence’ [citation], rather than an expression of jest or
frustration.” (People v. Lowery (2011) 52 Cal.4th 419, 427.)
Similarly, his letter to Santos was subject to multiple
interpretations. A deputy testified that Pineda was offering to

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 PEOPLE v. PINEDA
Liu, J., concurring

assault or kill an inmate who had snitched on another gang
member when he wrote, “Grumpy told me about that guera that
turned over the dime. Their [sic] treating him bad but that will
be straighten [sic] out soon we ride for the sur tu sabes babe,
‘one for all, all for one.’ ” But Pineda countered that he was
offering to talk to the deputies to leave Grumpy alone “because
they were beating him up.”
Would the jury have determined that these incidents were
unadjudicated crimes and thus aggravating circumstances
under Penal Code section 190.3, factor (b) if unanimity and not
just proof beyond a reasonable doubt were required? Without a
unanimity requirement, each juror was permitted to reach his
or her own conclusion as to whether any of the ten incidents
offered by the prosecutor had been satisfactorily proven to
constitute prior criminal activity. As the prosecutor said: “If
you believe it happened beyond a reasonable doubt, then you can
use it in your determination as to the appropriate verdict. It
doesn’t matter what your fellow jurors think about that.”
However, “[t]here is a world of difference between a unanimous
jury finding of an aggravating circumstance and the
smorgasbord approach that our capital sentencing scheme
allows.” (McDaniel, supra, 12 Cal.5th at p. 176 (conc. opn. of
Liu, J.).) Whether “the smorgasbord approach” comports with
the Sixth Amendment is an issue this court should revisit soon.
We need not confront the issue in this case, however,
because any Apprendi error as to Penal Code section 190.3,
factor (b) findings was harmless. (Washington v.
Recuenco (2006) 548 U.S. 212, 221–222 [Apprendi error is not
structural and does not require reversal if harmless beyond a
reasonable doubt].) In assessing whether Apprendi error is
harmless, the high court has instructed that the proper inquiry

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 PEOPLE v. PINEDA
Liu, J., concurring

is whether it is “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.”
(Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) In
conducting this inquiry, “a court, in typical appellate-court
fashion, asks whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.” (Id. at p. 19; see id. at pp. 16–17 [finding Apprendi
error is harmless where the evidence as to a disputed element
was uncontested and “overwhelming”].) Pineda’s briefing
focuses specifically on the application of Apprendi to factor (b)
evidence; while he says “there is no assurance the jury, or even
a majority of the jury, ever found a single set of aggravating
circumstances that warranted the death penalty,” he does not
make an Apprendi argument specifically with regard to evidence
concerning the circumstances of the crime that the prosecutor
introduced under Penal Code section 190.3, factor (a). I believe
it is clear beyond a reasonable doubt that a rational jury would
have found the factor (a) evidence to establish an aggravating
circumstance for purposes of capital sentencing.
The evidence showed that Pineda murdered two people:
Rafael Sanchez, in order to steal his car, and Raul Tinajero, in
order to prevent him from testifying at Pineda’s retrial. The
prosecutor focused on the brutality of these murders in her
closing argument: “Think about [Sanchez] that day. He met the
defendant and [Tinajero], he befriended them and then he was
betrayed by them. Imagine the anger he felt when these guys
he had just befriended stole his car. And then imagine the relief
he felt when he said, you know, give me my car back, and they
go, okay, we’ll take you to your car, only to later realize he had
been betrayed again when he felt the defendant’s hands reach
around and encircle his neck. [¶] Imagine the fear. Imagine the

7
 PEOPLE v. PINEDA
Liu, J., concurring

fear he felt when the defendant began to squeeze harder and
harder and he could no longer take in a breath. Squeeze so hard
that he actually lost consciousness. [¶] Then he’s shoved out of
the car like he’s nothing, and the defendant starts running him
over. Imagine the pain he felt as the weight of his car ran him
over again and again and again. Imagine the agony he must
have been feeling as his body was crushed under that weight.
[¶] And then you can imagine the relief he must have felt when
he actually saw that car drive away and he began the agonizing
effort to crawl down the alley thinking, God, if I can just get to
help, somebody can help me, I can survive this. If I can just get
out of this alley, maybe I’ll make it. [¶] And that little glimmer
of hope he had must have been crushed when he saw to his own
horror his white Infiniti barreling down on him again, and then
imagine the pain he must have felt when that car rolled over
him again crushing his already mangled body again under the
weight of the car. [¶] He had to know at that point there was no
chance he was going to survive.” She continued: “It was brutal,
it was malicious, and it was sadistic, and count 1, the murder of
[Sanchez], is more than enough to tip those scales in favor of a
verdict of death.”
The prosecutor offered similarly strong arguments
regarding the circumstances of Pineda’s murder of Tinajero:
“Now, think about [Tinajero]. . . . [¶] Imagine the terror he must
have felt when he is ripped from a dead sleep with the
defendant’s arm around his neck, when he opens his eyes and
he sees it is the defendant. He must have been thinking, oh, my
god, I’m dead. I am dead. [¶] And he struggled. He didn’t want
to die. . . . He struggled to get that guy’s arms off of his neck.
He struggled so hard he was spitting up blood. He struggled so
hard he defecated on himself. He struggled and then he stopped.

8
 PEOPLE v. PINEDA
Liu, J., concurring

Then the struggle was over. [¶] [Tinajero] was probably dead at
this point, but did that stop the defendant? No. This was
personal to the defendant. . . . [¶] He shoves [Tinajero’s] head
in the toilet. It’s inhumane. And then he flushes again and
again. [¶] But that’s not enough. . . . Let’s humiliate, let’s just
denigrate him as much as possible, and [Pineda] shoves him on
the ground and he stomps on his neck so hard that the people in
the cell could hear the bones crushing, the bones cracking. . . .
[¶] But again dead isn’t enough for this guy. So he takes that
ligature and he ties it around [Tinajero’s] neck, and he ties it
tight just to bring the point home you don’t mess with me.
[¶] And then what does he do with [Tinajero]? He shoves him
under the bunk . . . like he’s a piece of meat, like he means
nothing. . . . And then he sits in the cell for hours chatting like
it’s no big deal. Hey, yeah, this is better for my case, yeah, you
know, him or me. [¶] It was no big deal to him. He had just
snuffed out the life of a human being and he acted like it was no
big deal.”
The aggravating evidence concerning the circumstances of
the crime was very strong; it was also uncontested at the penalty
phase. I thus see no reasonable possibility that a rational jury
would not have found one or more circumstances of the crime to
constitute a factor in aggravation. (Chapman v. California
(1967) 386 U.S. 18, 24; see Neder, supra, 527 U.S. at pp. 16–17.)
On this basis, I concur in today’s judgment affirming Pineda’s
death sentence. And I join today’s opinion affirming the
underlying convictions.

LIU, J.

9
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Pineda
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

__________________________________________________________

Opinion No. S150509
Date Filed: June 27, 2022
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: William R. Pounders
__________________________________________________________

Counsel:

Michael Hersek and Mary K. McComb, State Public Defenders, Gary
D. Garcia and Jessica E. Oats, Deputy State Public Defenders, for
Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A.
Engler, Chief Deputy Attorney General, Lance E. Winters, James
William Bilderback II and Scott A. Taryle, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Jessica E. Oats
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300

Scott A. Taryle
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90035
(213) 269-6073