People v. Castaneda

Filed 6/30/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S085348
v. )
)
GABRIEL CASTANEDA, )
) San Bernardino County
Defendant and Appellant. ) Super. Ct. No. FWV-15543
____________________________________)
A jury convicted Gabriel Castaneda of the first degree murder of Colleen
Mary Kennedy (Pen. Code, §§ 187, subd. (a), 189), one count of second degree
commercial burglary (Pen. Code, §§ 459, 460), one count of kidnapping (Pen.
Code, § 207, subd. (a)), one count of sodomy by use of force (Pen. Code, § 286,
subd. (c)(2)), and one count of second degree robbery (Pen. Code, § 211).1 The
jury found true the allegations that the murder was committed while defendant was
engaged in the commission or attempted commission of the crimes of burglary,
kidnapping, sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (B), (D), (G).) The
jury also found true the allegations that defendant personally used a deadly and
dangerous weapon in the commission of each of the five crimes (§§ 12022,
subd. (b)(1)), 12022.3, subd. (a)), and intentionally confined the victim in a
manner that exposed her to a substantial likelihood of death during the
commission of kidnapping (§ 209, subd. (a)). Finally, the jury further found that

1 All further statutory references are to the Penal Code unless otherwise
indicated.

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during the commission or attempted commission of sodomy, defendant kidnapped
the victim (§ 667.61, subd. (e)(1)), engaged in the tying and binding of the victim
(§ 667.61, subd. (e)(5)), personally inflicted great bodily injury upon the victim
(§ 667.61, subd. (d)(6)), and committed the offense of burglary of a commercial
establishment that was then closed to the public (former § 667.61, subd. (e)(2),
Stats. 1997, ch. 817, § 6, pp. 5575-5577). The trial court found true the allegations
that defendant suffered two prior convictions for serious felonies (§§ 667, subd.
(a)(1), 1170.12). The court also found that defendant suffered a felony conviction
in 1987, and did not remain free of prison custody and did commit additional
offenses resulting in felony convictions during the five-year period subsequent to
the conclusion of his prior prison term. (§ 667.5, subd. (b).)
Following the penalty phase of the trial, the jury returned a verdict of death.
The trial court denied defendant‘s application to modify the death penalty verdict
to life imprisonment without the possibility of parole (§ 190.4, subd. (e)), and
sentenced defendant to death. The court also sentenced defendant to a term of life
in prison without the possibility of parole and to 123 years to life in prison with
respect to the other charges of which he was convicted. This appeal is automatic.
(§ 1239, subd. (b).) We reverse the judgment of conviction for kidnapping, vacate
the findings related to kidnapping, and otherwise affirm the judgment.
I. FACTS

A. Guilt phase evidence

1. Prosecution case
The victim, Colleen Mary Kennedy, was employed by P. Basil
Vassantachart, M.D., at his medical clinic in Montclair, San Bernardino County,
where she performed clerical tasks and provided some medical services, such as
taking X-rays and assisting with physical therapy. On Mondays, she worked alone

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at the clinic from approximately 9:00 a.m. until the doctor arrived at
approximately 11:00 a.m. Her routine on Mondays was to finish her clerical tasks
and then to sit in her office and read a newspaper or book until patients arrived at
10:30 or 11:00 a.m. She kept the clinic door locked while she was alone, but from
her office inside the clinic, she could see the front door to the clinic, and she
admitted patients when they arrived.
In February 1998, following a minor automobile accident, defendant, his
brother George Castaneda and George‘s wife Gina Ybarba received physical
therapy at the clinic. Their first two appointments were on February 26 and March
5, when Dr. Vassantachart, the victim, and a second ―nurse‖ were present at the
clinic in the morning. After one of these appointments, defendant told Ybarba that
when the second nurse bent over to tie her shoe, she put her ―behind‖ in his face,
and Ybarba responded that the nurse ―better not do that to George.‖ Their third
appointment was on Monday, March 9, at 9:30 a.m., when the victim was alone in
the office. At some point in mid- or late March, Dr. Vassantachart or the victim
informed Ybarba that there was no insurance coverage for their treatment, but the
clinic would continue treatment if they would be financially responsible. Ybarba
conveyed this information to defendant. Thereafter, the three received no further
treatment at the clinic.
On Monday, March 30, 1998, the day of the crimes, Dr. Vassantachart‘s
office manager, Shirley Vassantachart, spoke to the victim by telephone at
9:28 a.m., and perceived nothing unusual in their interactions. She placed another
telephone call to the victim between 10:15 and 10:30 a.m., but the victim did not
answer. Patients began arriving at 10:30 a.m., but the victim did not open the
clinic door or answer the telephone. Thereafter, Dr. Vassantachart unlocked the

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clinic. When he entered the victim‘s office, he noticed an open book on the floor,
which he characterized as ―very unusual.‖2 He proceeded 40 to 50 feet further
into the clinic, and found the victim‘s dead body lying facedown across a
―procedure table.‖ Photographs of the crime scene, which Dr. Vassantachart
confirmed were accurate, show that the victim was naked from the waist down,
except where her pants caught on one of her ankles. Her hands were bound behind
her back, and her legs were splayed, with one leg hanging down from each side of
the table. Her body was askew, so that her head also hung over one side of the
table, and her genital area was near a corner of the table. An examination of the
exterior of the building after the crimes were committed revealed no evidence of a
forced entry.
Dr. Frank Sheridan, the Chief Medical Examiner for the County of San
Bernardino, described the victim‘s condition. Her hands were tied tightly behind
her back with shoelaces, which left deep ligature marks on her wrists. A gag,
comprised of a sock and a shoelace, was in her mouth and wrapped tightly around
her neck. She had abrasions on her forehead, on either side of her chin, and on her
neck, which might have resulted from a struggle against someone holding her face
and attempting to put the gag on her. There were four areas of hemorrhaging
inside the scalp, which were caused by blows with a blunt object.
Sheridan concluded that the cause of death was blood loss from multiple
stab wounds to the victim‘s neck. There were 29 wounds inflicted with a Phillips
screwdriver on the back and sides of her neck. The wounds at the back of the
neck, over the spine, were more shallow, where the bone would have stopped the

2 At trial, the victim‘s husband confirmed that the book on the floor of the
victim‘s office was the book she was reading in the days before her murder.

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weapon; they were deeper on the sides of the neck. Some of the superficial
wounds appeared to have been caused by ―jabbing‖ or ―prodding‖ of the victim,
and with respect to these ―scraping‖ or ―glancing‖ wounds, Sheridan agreed it was
possible the screwdriver was being used ―as an implement to intimidate.‖ At least
15 of the wounds were ―fairly deep,‖ and Sheridan opined that ―it would take a
significant amount of pressure to enter the skin . . . with a screwdriver.‖
Collectively, the wounds caused much hemorrhaging into the tissues of the neck,
but two wounds on the left side were the most lethal, because they opened the
carotid artery and the jugular vein. Sheridan stated it was difficult to determine
how long the victim remained alive after these two vessels were severed, because
blood continued to flow to and from her brain on the right side of her neck, but he
stated that ―it would take a matter of several minutes,‖ and that she might have
survived as long as 15 minutes. He concluded that all of these wounds were
inflicted while the victim was alive, but he could not determine the order in which
they were inflicted. The wounds‘ close proximity suggested they occurred within
a short period of time, but they might have occurred over a period of 15 minutes,
with some ―inflicted at an earlier stage and the rest fairly quickly after.‖ The gag
was in place around the victim‘s neck when most or all of the wounds were
inflicted, as evidenced by holes in the sock. The gag, which became soaked with
blood, partially obstructed the victim‘s breathing, and thereby contributed to her
death.
Dr. Sheridan also testified that it appeared from his external examination
that there might be some bruising in the area of the vaginal entrance, but he was
not able to confirm through microscopic examination of a sample of the
underlying tissue that there was bruising. He noted a small amount of dried feces
around the anal area, but observed no apparent trauma to the anal region. In
addition, his internal examination of the rectum and anal area revealed nothing

5
that indicated trauma. He further explained that whether there were visible
injuries from a sexual assault would depend upon how much struggling occurred
and whether the injuries were inflicted when the victim was dead or near death, at
which time muscles would relax and there would be little circulation to enable
bruising.
No spermatozoa was found on the vaginal, rectal, and oral smears taken
from the victim, but tests revealed seminal fluid on two areas of carpet and on a
feces-stained sock that was found on the floor beneath the procedure table. In
addition, a palm print was found on the upward-facing sheet of paper that covered
the table on which the victim‘s body was found.3
In the course of their investigation, law enforcement officials obtained palm
prints and DNA samples from Dr. Vassantachart‘s patients, including defendant.
A latent print examiner identified 12 points on defendant‘s print and on the latent
print found on the paper that matched. He testified that he was ―certain‖ that the
prints originated from the same source. A forensic scientist extracted DNA from
spermatozoa found on the feces-stained sock and from defendant‘s saliva sample,
and examined seven genetic markers using a process known as ―polymerase chain

3 Attached to the table on which the victim‘s body was found was a roll of
paper from which a new piece was pulled to cover the length of the table after
each patient left the room. Several patients had been seen in the room since
defendant‘s last physical therapy session on Monday, March 9. In addition, on
March 26, the Thursday before the crimes were committed, Dr. Vassantachart had
performed a medical procedure on the table. A medical assistant who aided
Dr. Vassantachart recalled that the procedure resulted in a loss of blood, and that
she and Dr. Vassantachart cleaned up the room afterward, including changing the
paper on the table. Finally, the roll had been affixed in such a way that when the
paper was unrolled over the table, the side of the paper that faced the core of the
roll faced upwards. Accordingly, if a person touched the roll of paper before the
paper was unrolled, the print would appear on the side of the paper facing
downward when the paper was unrolled.

6
reaction‖ (PCR). She determined that the seven genetic markers from the two
samples matched, and that the particular DNA profile appears in one in 19 million
Caucasians, one in 524 million African-Americans, and one in four million
Hispanics. Another scientist analyzed five genetic markers from the DNA
extracted from the sock and from defendant‘s DNA, using a process known as
restriction fragment length polymorphism (RFLP). His analysis reflected that the
genetic markers from the two DNA samples matched, and that the particular DNA
profile occurs in fewer than one in six billion individuals in each of three racial
categories — Caucasians, Hispanics, and African-Americans. The PCR analysis
and the RFLP analysis generated different statistical frequencies because each
analysis tested different genetic markers with different variability. Considering
the two results together, the scientist who performed the RFLP analysis concluded
that, unless the source of the DNA extracted from the sock was an identical twin
or a brother of defendant, the source of the DNA was defendant.4
At the time of the crimes, defendant was living with his girlfriend, Virginia
Castaneda, in Ontario, California.5 On the day of the crimes, he drove Virginia‘s
burgundy Nissan Sentra to his first day of work at a Toyo Tires distribution center.
Defendant reported to work at approximately 6:00 a.m. that day, and worked until
a scheduled morning break at approximately 9:00 a.m. When Robert Love, a

4 The probability that the profile generated through the RFLP testing would
appear in a sibling is one in 90,000. Defendant has seven brothers, four of whom
were incarcerated at the time of the crimes. PCR analysis excluded two of the
brothers who were free at the time of the crimes as the source of the DNA found
on the sock. There is no indication in the record that the DNA of the third brother
who was free at the relevant time was analyzed. Defendant does not contend that
any of his brothers was the perpetrator of the charged crimes.
5 At the time Virginia Castaneda was defendant‘s girlfriend, she was the wife
of defendant‘s brother Juan Castaneda.

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supervisor at Toyo Tires, checked after the break to ensure that everyone was
working, he was informed that defendant had left at the break. According to
Francisco Tello, who worked with defendant that day, at the morning break at
approximately 9:00 a.m., defendant inquired where he could find something to eat,
and was informed that he would have to look for food away from the work
premises. Tello testified that defendant left no later than five minutes after the
break started. Various law enforcement officers drove different routes between
the Toyo Tires distribution center and the clinic. The longest period of time the
trip required was approximately 21 minutes.
The evidence reflected that during the time period in which the crimes were
committed, a vehicle similar to Virginia Castaneda‘s vehicle was parked at a Long
John Silver‘s restaurant located in the same block as the clinic. Linda Salley
testified that when she arrived to work at the restaurant between 9:10 and
9:15 a.m., no other vehicles were in the parking lot. Martha Carter, another
employee of the restaurant, testified that when she arrived to work at 9:45 a.m.,
she noticed a vehicle in the parking lot, which was unusual, because the restaurant
did not open until 11:00 a.m. Salley then went to the parking lot to investigate,
and observed what she described as a late model burgundy-colored Japanese
vehicle. The vehicle was parked on the side of the restaurant farthest from the
clinic, where it could not be seen from the clinic. When Carter went to the parking
lot between 10:00 and 10:15 a.m., the second vehicle was still there. Carter could
not recall whether the vehicle was in the lot when she went out after 11:00 a.m.,
by which time police officers had arrived in the area. When shown a photograph
of Virginia Castaneda‘s vehicle, Salley testified that the vehicle she saw in the lot
was ―probably‖ the same vehicle as in the photograph, and Carter testified that it
was ―similar‖ to Virginia Castaneda‘s vehicle.

8
 George Castaneda, defendant‘s brother, testified that he had seen defendant
use a Phillips screwdriver as a weapon. Defendant‘s parole officer testified that on
April 20, 1998, when he searched Virginia Castaneda‘s vehicle, he found a
Phillips screwdriver in the wheel well in the trunk, underneath a panel. The search
was related to a parole violation rather than to the investigation of the charged
crimes, and the parole officer did not seize the screwdriver.
On May 8, 1998, at which time defendant was in custody for a parole
violation, law enforcement officers advised him of his Miranda6 rights, and
defendant stated he was willing to speak to the officers. He confirmed he had
received treatment from the victim, and that the victim was alone in the office
during one of these visits. With respect to his activities on the day of the crimes,
he stated that he drove a red Nissan to Toyo Tires, arriving at approximately
6:30 a.m., he hurt his thumb unloading tires and did not want to work, so he left at
the first break, at approximately 8:30 a.m.7 He then drove to the residence of his
cousin, Gloria Salazar, in El Monte, arriving at 9:00 or 10:00 a.m. He related that
he awakened Salazar, went out to buy some beer and food, and then returned and
talked to Salazar until he departed at approximately 3:30 p.m. to pick up Virginia
Castaneda from her place of employment. When the interview resumed following
a break, an officer told defendant, perhaps falsely, that Salazar said defendant did
not arrive at her residence until noon on March 30. Defendant then stated that
before he traveled to Salazar‘s residence, he saw his half brother, Louie Arroyo,

6 Miranda v. Arizona (1966) 384 U.S. 436.
7 Defendant‘s girlfriend, Virginia Castaneda, testified that defendant told her
on Tuesday, March 31, 1998, that he had quit his job at Toyo Tires after he had an
argument with somebody there. She did not recall defendant‘s complaining of a
sore thumb.

9
standing on a street corner, in need of heroin. Defendant claimed he and Arroyo
traveled somewhere to obtain heroin, and then both went to Salazar‘s residence.
On May 15, 1998, at defendant‘s request, law enforcement officers spoke
with him again. At this interview, defendant stated that he left Toyo Tires at
approximately 9:00 a.m., traveled to Pomona to the residence of Elizabeth Ibarra,
a former girlfriend, and then traveled to Salazar‘s residence. Defendant stated that
he did not previously mention his visit with Ibarra because he was engaged to be
married to someone else. According to defendant, he arrived at Ibarra‘s residence
at approximately 9:30 a.m., the two of them went somewhere ―to meet a
connection,‖8 and he remained with Ibarra until approximately 11:00 a.m., at
which time he drove to Salazar‘s residence. Contrary to his earlier account, he
stated that he did not see Louis Arroyo on March 30.
Ibarra testified that after defendant was arrested, he told her he needed her
to tell the investigators he was with her at the time of the crimes. After she
reconstructed her activities of March 30, she informed defendant he was not with
her that day. She recalled that he insisted he was with her, and repeatedly asked
her to tell the police officers that he was with her. She described him as ―very
upset,‖ and she interpreted his manner as threatening. Telephone records reflected
that between defendant‘s interview on May 8 and his interview on May 15, he
placed 11 telephone calls to Ibarra.9

8 Defendant disclosed to the officers that he and Ibarra were ―chipping.‖ One
of the officers explained at trial that ―chipping‖ refers to the use of small quantities
of heroin, ―[j]ust enough to get by if you are a regular heroin user.‖
9 According to defendant‘s sister, Dianna Castaneda, Ibarra initially said
defendant was with her on March 30, but subsequently claimed she could not tell
the truth because she was being threatened by police detectives, who allegedly told
her they would call her parole officer, and her children might be taken from her.
Dianna Castaneda also testified that Ibarra was concerned that her husband might
(footnote continued on next page)

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 Ibarra also testified that defendant visited her in early March and several
times in April 1998, to obtain heroin and to talk. She recalled that she purchased
heroin for them when defendant visited. When asked if defendant had money, she
responded, ―Not very often, no.‖ According to Ibarra, when defendant visited her,
they would discuss his relationship with Virginia. In particular, he spoke ―very
much‖ about anal intercourse with Virginia — that it hurt Virginia and she
complained, but he wanted to continue engaging in anal sex.10
The victim‘s husband, Steven Kennedy, testified that when his wife
worked, she wore a round gold ladies‘ watch with a dark brown or black band, and
sometimes wore a ring. After his wife‘s death, he was unable to find the watch or
a particular gold ring with a green or red stone — he did not know which color
because he is color-blind. The victim also carried to work a purse in which she
kept her wallet with credit cards and cash, and a satchel containing work-related
items. He searched their residence, but did not find her purse or its contents, or
the satchel. He cancelled all of the missing credit cards during the first week of
April. Mary Boyle, the victim‘s mother, also recalled that the victim always wore
at least one ring. After her daughter‘s death, Boyle discovered that a ring she had
bought for the victim, which had an emerald flanked by two diamond chips, was
missing, and that one of the victim‘s watches was missing.

(footnote continued from previous page)

learn that defendant had been visiting her while her husband was at work. Ibarra
testified that detectives threatened her based upon her parole status, telling her that
if she did not tell the truth, she could go to jail, but she further testified that the
detectives did not mention her children.
10 Virginia Castaneda testified that she and defendant had never engaged in
anal intercourse, defendant had never attempted to have anal intercourse with her,
and defendant had never spoken about having anal intercourse.

11
 According to Shirley Vassantachart, the office manager, the victim always
wore one or two rings and a watch with a black leather band. She also recalled
that the victim kept her purse in the office area where she read her book. She
explained that the satchel to which the victim‘s husband referred was used by the
victim to carry patient records, bills, petty cash for making change, and payments
collected from patients between Dr. Vassantachart‘s Montclair office and his
Covina office, where the victim worked on other days of the week. She testified
that although the victim would have delivered the collections to the office manager
the previous Friday, the victim would have had petty cash of $30 to $40 in the
satchel on Monday when the crimes were committed. The investigating officers
did not find the satchel, the victim‘s purse, or their contents at the crime scene.
In late March or early April 1998, while visiting Gloria Salazar, defendant
removed a watch and a ring from his pocket, told Salazar that ―this bitch got me
mad,‖ and stated that he was going to throw the items off the freeway. Salazar
suggested he give the items to her, which he did. Salazar was unsure of the date,
but stated that it could have been March 30. She testified that the ring was gold
and had a colored stone. She could not recall the color of the stone at trial, but
according to the detective who interviewed her, Salazar told him the ring had a
green stone. Salazar testified that she took the ring to a pawn shop and gave the
watch to a friend whom she called her ―grandfather.‖ She did not inform law
enforcement officers of these facts until August 1999, by which time the ring was
gone from the pawn shop; however, the grandfather still had the watch, which he
gave to the police. The victim‘s husband testified that the watch shown to him at
trial ―looks like the watch she would wear, but it‘s kind of beat up,‖ and he was
not certain it was her watch. He stated that the finish was rubbed off, but the gold
areas that remained were the same color as his wife‘s watch. The victim‘s mother,
Mary Boyle, similarly testified that she did not know whether the watch shown at

12
trial was her daughter‘s watch, that she thought her daughter‘s watch was a
brighter gold, and that her daughter‘s watch had a black leather band. Finally,
Shirley Vassantachart testified that the watch at trial looked like the victim‘s
watch, but noted that it lacked a band and that the gold around its face was faded
or worn off.11

2. Defense case
Defendant presented evidence that he could not have been at the scene of
the crimes when they occurred. First, two police officers testified that when
Francisco Tello and Robert Love were interviewed in early May 1998, each said
that the first work break at Toyo Tires on March 30 was at approximately
9:30 a.m., a half hour later than the time to which they testified at trial. Second,
defendant‘s sister-in-law, Gina Ybarba, and defendant‘s son, Gabriel, Jr., who was
16 years of age at the time of the crimes, testified that they saw defendant at his
residence mid-morning on March 30. Ybarba, who lived next door to defendant,
recalled that she heard a vehicle in the driveway at 10:00 a.m. on March 30,
looked out the window, and saw defendant and a dark-haired woman whom she
identified as Elizabeth Ibarra. After the vehicle left, she went to the back door of
defendant‘s apartment, and asked Gabriel, Jr., if that was his father who had
driven into the driveway. He confirmed it was. Gabriel, Jr., testified that he
visited defendant on weekends, and sometimes stayed until Monday or Tuesday.
He recalled a Monday when Ybarba came to defendant‘s apartment to talk to him.
On that particular Monday, defendant came into the apartment, remained for 10 to

11 The watch retrieved from the grandfather had a black leather band, which
was sent along with the watch to the crime lab for DNA processing. At the lab, a
forensic scientist removed the band and cut it into pieces in an effort to extract
DNA from it. Accordingly, the watch exhibited at trial did not have a band.

13
15 minutes, and then departed at 10:50 or 11:00 a.m. Gabriel, Jr., testified that he
thought these events happened on a Monday, because he had returned to his
mother‘s residence the following day at 11:00 a.m. When asked why he
specifically remembered this particular visit, he testified that on that Monday, his
father‘s girlfriend, Virginia Castaneda, had repeatedly called the apartment when
defendant failed to pick her up after work, defendant had returned late that
evening, and defendant and Virginia had argued.12
Defendant also presented evidence that law enforcement officers may have
obtained from defendant‘s residence a sock with defendant‘s semen on it.
Virginia Castaneda testified that defendant‘s parole officer and other officers came
to their residence on April 20, 1998, and conducted a parole search, after
defendant failed to report to his parole officer. She recalled that when the officers
arrived, she and defendant were having sex, and that defendant ejaculated and
wiped himself off with boxers or socks. She testified that the officers took dirty
boxers, socks, and T-shirts from the bedroom. She further testified that when the
residence was searched again by law enforcement officers on May 8, the officers
seized almost all of the family‘s clothing.13

12 Virginia Castaneda testified during the prosecution‘s case that defendant
picked her up from work on Monday, March 30, 1998, at 5:30 p.m., and there was
nothing unusual in his behavior that day. She also testified that she thought it was
the next day, Tuesday, that defendant picked her up late and they argued.
13 A forensic scientist testified in the prosecution‘s case that on April 3, 1998,
she began processing the sock from the procedure room floor. She began
extraction of DNA on April 6, and completed the process of typing the DNA on
April 16, four days before the parole search of defendant‘s residence.

14
 3. Rebuttal
Several law enforcement officers testified concerning their parole search of
defendant‘s residence on April 20, 1998. Defendant‘s parole officer recalled that
when he first saw Virginia Castaneda, she was in bed with an intravenous (IV)
drip attached to her arm, and ―[s]he looked very ill.‖ He asked her the reason for
the IV, and she said that she was having problems with her pregnancy. At the time
of the search, the parole officer was unaware of the charged crimes, and he did not
learn of the homicide investigation of defendant until three to four weeks after the
parole search. The only clothing seized during the search was a beanie and a shirt
the parole officer found hidden on top of a cabinet in the kitchen. He confirmed
he found a screwdriver in the trunk of Virginia‘s burgundy Nissan Sentra, but he
did not seize the screwdriver. A second parole officer, who was also unaware of
the homicide investigation at the time of the parole search, confirmed the
testimony of defendant‘s parole officer, except he did not recall seeing or hearing
about a screwdriver. A police officer who accompanied the parole officers
recalled that Virginia was attached to an IV drip, and described her as ―obviously
ill.‖ A detective from the Montclair Police Department, the lead agency in the
investigation of the charged crimes, testified that no one from that department was
involved in the parole search of defendant on April 20, 1998. He estimated that he
learned of the parole search ―sometime after May 6.‖
Elizabeth Ibarra testified that she initially thought it was possible defendant
had been with her on March 30, but changed her mind after she reviewed her
telephone records and spoke to her relatives. She also testified that, unlike the
dark-haired woman whom Ybarba and Gabriel, Jr., claimed to have seen with
defendant on March 30, she had had blond hair for 12 years, until approximately
two weeks before testifying at trial. She testified she had never been to
defendant‘s residence in Ontario.

15
 B. Penalty phase evidence

1. Defense case
At defendant‘s request, the defense presented its penalty phase witnesses
first. Richard Hall, Ph.D., a clinical psychologist, reviewed defendant‘s records
from the California Department of Corrections (CDC; now the Department of
Corrections and Rehabilitation), and performed psychological evaluations on
defendant. According to the Wechsler Adult Intelligence Scale Revised,
defendant has an IQ of 84, which is in the low average range of intellectual
functioning. According to the Minnesota Multiphasic Personality Inventory-2
(MMPI-2), defendant was depressed, and he was ―a very male oriented person.‖
Hall found no indication of any mental defect; in particular, he found no evidence
of psychosis or schizophrenia. Dr. Hall characterized defendant‘s difficulty in
adjusting to society as a personality disorder caused by his environment.
According to Hall, records from the CDC reflected that during defendant‘s
incarceration in a maximum security prison, he was found guilty of rules
violations, ―for either being out of bounds or fighting,‖ and was disciplined by
being isolated from the general prison population in a higher security housing unit.
Hall explained that there are four security levels in California prisons, and
that levels 3 and 4 are maximum security levels, where prisoners‘ movements are
highly regulated and controlled. He stated that a defendant sentenced to life
imprisonment without the possibility of parole will never be placed outside of a
maximum security setting. Television, radio, and an hour in the yard are available
to a prisoner in levels 3 and 4, unless the prisoner fails to follow prison rules. Hall
testified that, according to studies, prisoners confined in levels 3 and 4 tend to
adopt to the rigid structure and become good workers, and may have difficulty
surviving outside of a highly structured prison environment. Hall opined that
defendant could function in a prison setting ―without much difficulty,‖ and

16
testified that nothing in his evaluation of defendant led him to believe that
defendant could not survive in prison the rest of his life.
Frank Gawin, M.D., a psychiatrist whose specialty focused on the effects of
medication and drugs on the brain, obtained information from defendant about his
history of drug use. From 12 to 14 years of age, defendant abused inhalants, and
at age 14, he began using marijuana and ethanol. According to Dr. Gawin, drug
use at such an early age indicated that defendant was in an environment in which
drugs were available and permitted. He also testified that drug use at 12 years of
age limits a child‘s capacity for maturation, by interfering with the ability to
perceive social and moral signals correctly and to remember the consequences of
one‘s actions. Defendant‘s drug use was mild from age 20 to age 24, when he was
working at two jobs and maintaining a relationship. Dr. Gawin characterized
defendant‘s life from age 20 to 24 as ―relatively stable,‖ but acknowledged that
during this period, defendant was sentenced to the California Youth Authority
(now Division of Juvenile Justice) twice, for burglary and assault with a deadly
weapon, escaped from the Youth Authority, was arrested for drugs and possession
of a sawed-off rifle, and fathered children with three different women. At 24 or 25
years of age, defendant began using heroin and cocaine. His cocaine use ended at
age 34, as a result of experiencing a panic attack while on the drug, but he became
dependent on heroin, and used it in moderate amounts in the morning and
periodically during the day, to stave off symptoms of withdrawal and his
increasing depression. In sum, Dr. Gawin testified, defendant suffers from the
mental illnesses of drug dependence, a major depressive disorder, and an anxiety
disorder.
Armando Morales, Ph.D., a professor of psychiatry and biobehavioral
sciences, who specialized in the study of Hispanic gang culture, received
information about defendant‘s family and his prison record, and interviewed

17
defendant. Defendant‘s maternal grandparents were farm workers who emigrated
to the United States from Mexico in 1920. Defendant‘s grandmother suffered
from depression and his grandfather was a heavy drinker, but Dr. Morales was not
able to establish whether the grandfather was an alcoholic. Defendant‘s mother
also reported that she herself was a moderate to heavy drinker from 17 to 22 years
of age. Although Dr. Morales learned there was ―heavy use of alcoholic
beverages‖ among the mother‘s sibling group, he could not confirm whether any
of the siblings were alcoholics.
Dr. Morales testified that defendant‘s mother was raped when she was 12
years of age, and thereafter had three ―marital relationships.‖ The first
relationship began when she was 14 years of age and the man was 19. She gave
birth to a daughter during this relationship. At age 16, she became involved with a
boy, 15 years of age, who was a ―heavy drinker.‖ During this second relationship
which lasted from 1958 to 1966, she gave birth to five sons and a daughter,
including defendant, who was born in 1960. Each of the five boys had juvenile
and adult criminal histories, were dependent on drugs, and served time in prison.
At 26 years of age, she entered a relationship with a man who had a history of
drug problems and incarceration, and they had two sons, both of whom developed
drug problems and served time in prison.
Dr. Morales reported that defendant‘s mother left defendant and his siblings
with her parents during the day while she worked, but her parents had little control
over the children, and defendant and some of his brothers became involved in
―turf-oriented‖ Hispanic gangs. Morales identified numerous factors related to
gang membership, including poverty, parenting problems, family members who
are in gangs, violence in the family or the neighborhood, poor education and
employment history, and a person‘s age. He described gangs as surrogate families
for their members, and stated that defendant was initiated into a gang at 12 to 15

18
years of age. At 20 or 21 years of age, defendant married Elvira Moreno, whose
parents and siblings were better educated than defendant‘s family. During the
period defendant lived with Elvira‘s family, he obtained employment and
dissociated himself from his peers, but eventually he was drawn back to his
brothers, became involved in drugs again, and was rejected by his wife.
Dr. Morales found that defendant fit within three psychiatric diagnostic
categories: substance abuse dependence, mood disorder (depression), and
dependent personality. Symptoms of his depression included anger and
irritability, and a lack of energy, drive, or direction when he was on his own rather
than in an institution. Morales stated that depression may have biological and
environmental components. With respect to defendant‘s dependent personality,
Morales stated that after 10, 11, or 12 years of age, defendant became a follower,
dependent on peers.
Various relatives and friends of defendant testified on his behalf. Lucia
Gonzalez gave birth to defendant‘s son, Gabriel Castaneda, Jr., in December 1981,
but her relationship with defendant ended soon thereafter. Their son visited
defendant on three or four weekends in 1998, until defendant was arrested for a
parole violation in April 1998. Approximately one week after that arrest,
defendant asked their son to claim that a firearm found in defendant‘s residence
belonged to the son. Gabriel, Jr., confirmed that defendant exerted ―a little bit‖ of
pressure on him to claim ownership of a firearm, but defendant respected his
decision not to claim ownership. He asked the jury to consider a punishment other
than death, because he would like to become better acquainted with defendant.
At about the time defendant‘s relationship with Gonzalez ended, he began a
relationship with Elvira Moreno, who became pregnant. They married in 1982,
and lived together with her parents for almost a year, but she ended their
relationship when she found a syringe in his pocket. She testified that defendant

19
treated her with respect, but struck her once, causing bruising around her eye.
Defendant was incarcerated during most of their son‘s childhood, but he wrote
letters and drew pictures for their son, and advised him to stay in school, take care
of his mother, and stay away from gangs. Defendant‘s father-in-law testified that
defendant complied with his rules while residing in the Morenos‘ home in 1982,
but changed and ―went the other way‖ when he associated with his brothers and
other relatives.
Henry and Louie Arroyo, the sons of defendant‘s mother and stepfather,
testified that each of their mother‘s eight sons belonged to a gang, each had served
time in prison, and most had used heroin. According to Henry, his father, who
―practically raised‖ defendant, also used heroin. Both Henry and Louie testified
that they never saw defendant strike a woman.
Defendant‘s sister, Dianna Castaneda, testified that defendant was
protective towards her, and she never saw him abuse a woman. When defendant
was released from prison in 1997, she took him into her residence, and he became
very active in her church. After a couple of months, however, defendant stopped
following rules Dianna established for living in her home and he began a
relationship with Virginia Castaneda, the wife of his brother Juan. Dianna
expressed disapproval, and defendant moved out of her residence and stopped
attending church services. Dianna‘s friend Yvonne Tovar testified that she had
known defendant for approximately 19 years. She described him as ―nice to
everyone, very cordial, very respectful,‖ and she could not recall him ever striking
a woman.

2. Prosecution case
George Castaneda, defendant‘s brother, testified that he and his brothers
were ―born and raised‖ in their neighborhood gang and had used heroin, but after

20
being released from prison a second time, George stayed away from his family and
completed his parole without any violations. He stated that their stepfather
encouraged the brothers to obtain drugs and alcohol for the stepfather, and that the
brothers drank and smoked marijuana with their stepfather. George had never
seen defendant strike a female.
Testimony was presented concerning an armed robbery by defendant in
August 1991. Daniel Hills testified that as he was unlocking the door to his truck,
an arm grabbed him around the neck and ―practically picked me up off the
ground.‖ His assailant told him not to turn around or the assailant would shoot
him. One or two other people searched his pockets and took all of his belongings.
His assailants then threw him on the ground, tied his hands behind his back with
his belt, removed his shoe and sock, shoved the sock in his mouth, kicked him in
the side, and drove away in his truck. The day after the truck was stolen,
California Highway Patrol officers found defendant at the scene of a collision,
slumped in the passenger seat of the truck. Defendant was convicted of the
offenses.
Deputy Joe Braaten of the San Bernardino County Sheriff‘s Department,
testified that in June 1999, he received an anonymous note that an inmate named
―Gato‖ had a syringe in a lotion bottle in his cell. He identified defendant as
―Gato,‖ and searched the cell defendant shared with another inmate. He found
nothing in the lotion bottle, but he found a syringe stored inside a deodorant
container labeled ―Gato,‖ a needle stored inside a soap container, a homemade
handcuff key inside a baby powder jar, and a weapon manufactured from a hard
plastic spoon in plain view. On cross-examination, Braaten agreed that prisoners
sometimes attempt to cause trouble for other prisoners. He confirmed he found it
odd that the weapon was left in plain view, and said he did not know which of the
cell‘s occupants owned the items found in the cell. He also testified that when an

21
inmate is away from a cell during a recreation period, the cell door remains open
for approximately five minutes, and it would be possible for another inmate to go
into the cell for a brief time.
Elizabeth Ibarra testified that she met defendant when he was in jail, and
they began living together when he was released. Less than six months later, they
stole a stereo in order to obtain drugs, and were arrested following a high-speed
chase. After they were released from prison, they lived together again. She
testified that when ―[defendant] uses drugs, he gets angry. . . . And when he gets
mad, he hits.‖ When she refused to have sex with him, ―[h]e‘d get mad and I
would have to do it anyway.‖ She stated that he would tie her to his arm to
prevent her from leaving at night. She recalled an instance when defendant beat
her, and defendant‘s sister contacted Ibarra‘s mother and brother to come to
retrieve Ibarra. Ibarra‘s mother recalled seeing bruises on Ibarra‘s neck and
wrists, and testified that Ibarra told her defendant had tried to choke her.
Psychologist Sandra Baca testified that it is common for victims of abuse to
minimize or deny abuse, and to return to the abuser. She reviewed the data
Dr. Hall generated in applying the MMPI-2 test to defendant, and determined that
Hall had made an error in his calculations, resulting in his conclusion that
defendant was depressed. She testified that, correctly calculated, the MMPI-2
results reflected that defendant ―meets the criteria for an antisocial personality
disorder and with some depressive features and with some alcohol and substance
abuse.‖ Dr. Baca stated that people with antisocial personality disorder do not
develop feelings for other people, and they use others to further their own goals.
Such individuals may be outwardly gracious, in contrast to the persona they
exhibit ―behind closed doors,‖ and many are ―master manipulators.‖ Unlike
depression, ―personality disorders . . . are not amenable to treatment at all.‖
According to Dr. Baca, these individuals know what they are doing, but they do

22
not think about being apprehended, and only after they are apprehended do they
devise an explanation for their actions. Finally, she testified that defendant could
have led his life differently, but ―he has chosen to exercise the wrong choices.‖
II. DISCUSSION

A. Pretrial Issue

Defendant’s absence from two hearings
Defendant contends his absence from two conferences violated his right to
be present during the trial under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, article I, sections 7 and 15 of the California
Constitution, and sections 977, subdivision (b), and 1043, subdivision (a).
The first conference between the court and counsel occurred during jury
selection, as proceedings were about to resume, and the trial judge asked to ―see
counsel in the hallway for a moment.‖ Out of the presence of defendant and the
prospective jurors, the court stated that it ―needed to put on the record and inform
you both‖ that a prospective juror had told the court‘s jury coordinator that the
prospective juror ―had been informed by someone, they couldn‘t tell who, that
they were all going to be videotaped.‖ According to the court, the jury coordinator
had ―checked and found no one with a video camera outside the jury assembly
room. And [the bailiff] said he didn‘t see anyone out in the hallway. I don‘t know
where it came from or who it was by or if you know anything about it at all.‖ The
prosecutor and the defense counsel responded that they would object if someone
brought a camera into court. The court reiterated its purpose of ensuring counsel
was aware of the report, and added that the jury coordinator did not have the
juror‘s name. ―So we are in a situation where we have very little information
other than that general information.‖ Defense counsel stated, ―I am just going to
ignore it at this point.‖ The prosecutor added that he would do the same. Finally,

23
the court stated that if it learned anything more, it would bring the information to
counsel‘s attention.
The second conference occurred again during jury selection after defense
counsel undertook to explain to prospective jurors differences between the guilt
and penalty phases of trial. With respect to the penalty phase, defense counsel
stated that ―[y]ou can consider what type of upbringing he had. You can consider
the area he lived in. You can consider his education.‖ The prosecutor asked to
approach the bench, and the court directed that counsel meet with the court in the
hallway. At the conference, the prosecutor objected that defense counsel‘s
comments were incorrect statements of the law. The court directed defense
counsel not to preinstruct the prospective jurors, but the prosecutor clarified that
he was not objecting to preinstruction, only to reference to ―neighborhood and so
forth.‖ Defense counsel then asserted that ―if I start talking about aggravating
versus mitigating, [the prospective jurors] don‘t know what the heck I‘m talking
about.‖ The court responded that it had already introduced the concepts of
aggravating and mitigating circumstances to the prospective jurors, and defense
counsel agreed to rephrase his comments. When voir dire resumed, defense
counsel noted that the court had alluded to ―the aggravating factors and the
mitigating factors,‖ and asked whether anyone on the panel ―would feel that once
the guilt phase is over and if you convict [defendant], that no matter what, at that
point you won‘t listen to the mitigating factors that might be presented by me in
this case?‖
Although a criminal defendant generally has a right to be personally present
at trial, there are various limitations upon this right. First, ― ‗[u]nder the Sixth
Amendment‘s confrontation clause, a criminal defendant does not have a right to
be personally present at a particular proceeding unless his appearance is necessary
to prevent ―interference with [his] opportunity for effective cross-examination.‖ ‘

24
[Citation.]‖ (People v. Cole (2004) 33 Cal.4th 1158, 1231 (Cole); see also
Kentucky v. Stincer (1987) 482 U.S. 730, 739 [―the Confrontation Clause‘s
functional purpose [is to] ensur[e] a defendant an opportunity for cross-
examination‖].) Defendant provides no explanation concerning how these
conferences during jury voir dire proceedings had any relation to his opportunity
for effective cross-examination, nor do we perceive any relation. (See People v.
Gray (2005) 37 Cal.4th 168, 198 (Gray) [litigants must support each legal point
with argument].)
Second, ― ‗under the Fourteenth Amendment‘s due process clause, a
criminal defendant does not have a right to be personally present at a particular
proceeding unless he finds himself at a ―stage . . . that is critical to [the] outcome‖
and ―his presence would contribute to the fairness of the procedure.‖ ‘
[Citations.]‖ (Cole, supra, 33 Cal.4th at p. 1231; see also Kentucky v. Stincer,
supra, 482 U.S. at p. 745 [same].) Defendant contends his presence at the first
conference concerning the videotaping rumor would have contributed to the
fairness of the trial. He bases his contention upon a subsequent event during jury
selection: later the same morning, the prospective juror who had spoken to the
jury coordinator about videotaping stated, in the presence of other prospective
jurors, that the courthouse allowed videotaping and that he was concerned about
gang retaliation in the event the jury returned a guilty verdict. Defendant asserts
that, had he been present at the conference, he would have had the opportunity to
object to the decision not to pursue the matter. Then, according to defendant, the
prospective juror could have been questioned outside the presence of other
prospective jurors, and the jury pool would not subsequently have been exposed to
comments concerning gangs. His theory is speculation, and therefore is
inadequate to establish that the conference was ―critical‖ or that his presence
would have ―contributed to the fairness‖ of the procedure. (People v. Harris

25
(2008) 43 Cal.4th 1269, 1307; People v. Waidla (2000) 22 Cal.4th 690, 742
(Waidla).)
With respect to the second conference, concerning the propriety of defense
counsel‘s description of mitigating factors, defendant asserts he ―could have
assisted counsel by providing information about himself that could have been used
to explain the concepts of aggravation and mitigation in a way that would have
avoided the prosecutor‘s objection.‖ Defendant‘s claim lacks merit. The
conference concerned a legal issue — whether defense counsel was misstating the
factors that may constitute mitigating circumstances. Therefore, defendant did not
have a right to be present. (People v. Perry (2006) 38 Cal.4th 302, 312.)
For the same reasons we have rejected defendant‘s contentions under the
Sixth and Fourteenth Amendments to the federal Constitution, we also reject his
assertions of error under state law. ― ‗The state constitutional right to be present at
trial is generally coextensive with the federal due process right. [Citations.]‘
[Citation.]‖ (People v. Butler (2009) 46 Cal.4th 847, 861.) ―Under article I,
section 15 of the California Constitution, ‗a criminal defendant does not have a
right to be personally present ―either in chambers or at bench discussions that
occur outside of the jury‘s presence on questions of law or other matters as to
which [his] presence does not bear a ‗ ― ‗reasonably substantial relation to the
fullness of his opportunity to defend against the charge.‘ ‖ ‘ ‖ [Citations.]‘
[Citations.]‖ (Cole, supra, 33 Cal.4th at p. 1231.) Defendant provides no
additional argument concerning the asserted violation of his rights under the
California Constitution, and we perceive no manner in which his presence at either
of the two conferences bore a reasonably substantial relationship to his
opportunity to defend against the charges. For the same reason, defendant had no
right under sections 977 and 1043 to be personally present at these bench
discussions, nor was a written waiver required. (Cole, at p. 1231.)

26
 B. Guilt Phase Issues

1. Instruction concerning asportation
Defendant contends the trial court provided an erroneous instruction
concerning the element of asportation for the offense of kidnapping, and thereby
violated his rights to due process and a fair trial under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, and article I, sections 7
and 17 of the California Constitution.
The trial court instructed the jury, pursuant to CALJIC No. 9.50,
concerning the crime of kidnapping. (§ 207, subd. (a).) The instruction observed
that kidnapping requires movement of the victim ―for a distance that is substantial
in character.‖ It further explained, in language taken from our opinion in People
v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez) that, ―[i]n determining whether
a distance . . . is substantial in character, you should consider the totality of the
circumstances attending the movement, including, but not limited to, the actual
distance moved or whether the movement increased the risk of harm above that
which existed prior to the movement, or decreased the likelihood of detection, or
increased both the danger inherent in a victim‘s foreseeable attempt to escape and
the attacker‘s enhanced opportunity to commit the additional crimes.‖ (Italics
added.)
The events at issue here occurred before Martinez, supra, 20 Cal.4th 225,
was decided, when ―the asportation standard [was] exclusively dependent on the
distance involved.‖ (Id. at p. 233; see People v. Caudillo (1978) 21 Cal.3d 562,
574, overruled by Martinez, supra, 20 Cal.4th at p. 229.) In Martinez, we held
that the jury should consider instead ― ‗the totality of the circumstances‘ ‖ in
deciding whether the distance a victim was moved was ― ‗substantial in
character.‘ ‖ (Id. at p. 237.) We further concluded that the new standard could not
be applied retroactively, because it effected an unforeseeable enlargement of the

27
factual basis for determining what constitutes a ―substantial distance‖ under the
kidnapping statute, and the defendant did not have fair warning of the
enlargement.
For the same reasons, and as the Attorney General concedes, the standards
set forth in Martinez cannot be applied to defendant‘s actions. We also conclude,
as the Attorney General concedes, that ―it is reasonably probable that a result more
favorable to [defendant] would have been reached in the absence of the error.‖
(People v. Watson (1956) 46 Cal.2d 818, 836.) The prosecutor presented evidence
that it would be more difficult to hear noises made in the procedure room than in
the victim‘s office, stated to the jury that the movement was ―[n]ot a great distance
in terms of actual feet,‖ and urged the jury to focus upon whether the movement
increased the likelihood of the attack and decreased the risk of detection. Thus,
the evidence and argument focused upon the totality of the circumstances rather
than the distance. Therefore, the conviction for kidnapping must be reversed and
the findings based upon kidnapping must be vacated.

2. Instruction concerning implied malice
Defendant contends that the trial court‘s instruction defining ―implied
malice‖ deprived him of his rights to due process, to trial by jury, and to be free
from the imposition of cruel and unusual punishment under the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution, and article I,
sections 7, 15, 16 and 17 of the California Constitution.
The trial court instructed the jury that ―[e]very person who unlawfully kills
a human being with malice aforethought or during the commission or attempted
commission of burglary, kidnapping, rape, sodomy by use of force or robbery, all
of which are felonies inherently dangerous to human life, is guilty of the crime of
murder . . . .‖ (CALJIC No. 8.10.) The court further instructed that ― ‗[m]alice‘

28
may be either express or implied. [¶] Malice is express when there is manifested
an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶]
The killing resulted from an intentional act, [¶] The natural consequences of the
act are dangerous to human life, and [¶] The act was deliberately performed with
knowledge of the danger to, and with conscious disregard for, human life. . . .‖
(CALJIC No. 8.11.) Next, the court instructed the jury that ―[a]ll murder which is
perpetrated by any kind of willful, deliberate and premeditated killing with express
malice aforethought is murder of the first degree,‖ and it explained the terms
―willful,‖ ―deliberate,‖ and ―premeditated.‖ (CALJIC No. 8.20, italics added.)
The court then instructed the jury concerning first degree felony murder,
explaining that a killing may be intentional, unintentional, or accidental, but it will
be murder of the first degree if it is committed in the course of specified felonies.
(CALJIC No. 8.21.)
Defendant asserts that the trial court‘s instructions erroneously authorized
the jury to find him guilty of first degree murder based upon a finding of implied
malice. ― ‗In reviewing [a] purportedly erroneous instruction[], ―we inquire
‗whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way‘ that violates the Constitution.‖ [Citation.] In conducting this
inquiry, we are mindful that ― ‗a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the overall charge.‘ ‖
[Citations.]‘ [Citation.] ‗Additionally, we must assume that jurors are intelligent
persons and capable of understanding and correlating all jury instructions which
are given.‘ [Citation.]‖ (People v. Richardson (2008) 43 Cal.4th 959, 1028
(Richardson).) The instructions in the present case correctly, but unnecessarily,
explained ―implied malice.‖ The instructions did not, however, inform the jury
that it could find first degree murder based upon implied malice. Nor is there a
reasonable likelihood that the jury would have understood the instructions to

29
authorize such a finding. The two instructions that addressed the bases of first
degree murder — CALJIC Nos. 8.20 and 8.21 — correctly explained the two
scenarios in which first degree murder could be found, and CALJIC No. 8.20
required express malice in the context of willful, deliberate, and premeditated
murder. We reject defendant‘s view that the jury would have understood CALJIC
No. 8.20, which referred to murder with express malice aforethought, as
encompassing only a subset of intentional murders, and would have assumed that
a finding of implied malice also would support a conviction of first degree
murder.14 In any event, because the jury found that the killing was committed in
the course of burglary, robbery and sodomy, it necessarily found that the killing
was first degree felony murder, regardless of its understanding of the malice
requirement in connection with willful, deliberate, and premeditated murder.
Finally, we find no merit in defendant‘s assertion that the jury might have ―used

14 Defendant notes the prosecutor‘s statement that defendant must have
thought, ―I‘m obviously putting this person at great risk,‖ and asserts the statement
indicated to the jury that conduct that has a strong likelihood of resulting in death
constitutes first degree murder. Defendant has taken the statement out of context.
The prosecutor explained ―you have to have the intent [to] kill. Malice
aforethought is defined as intent to kill.‖ In the course of arguing that the killing
was intentional, willful, deliberate, and premeditated, the prosecutor reviewed
various steps defendant had taken in assaulting the victim, including moving her,
binding her, sexually assaulting her, and stabbing her numerous times. He stated it
was obvious the acts were intentional and that defendant had much time to
question whether he should continue his assault: ―[S]hould I stop here? Have I
gotten in over my head? Is this something I really want to do? I‘m obviously
hurting this person. I‘m obviously putting this person at great risk. Yet the
defendant went ahead . . . and killed his victim after he had done this. This is a
willful, deliberate, premeditated act with an intent to kill.‖ Thus, the prosecutor
was arguing that the actions reflected an intent to kill, not merely that they were
―deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life.‖ (CALJIC No. 8.11.)

30
implied malice as the standard for finding the commission of a felony in
connection with the murder.‖ CALJIC No. 8.10 explained that, to find defendant
guilty of murder, it must be proved ―[t]he killing was done with malice
aforethought or occurred during the commission or attempted commission of‖
various specified felonies. (Italics added.) CALJIC No. 8.21 explained in
connection with the charge of felony murder that ―[t]he specific intent to commit
burglary, or kidnapping, or rape, or sodomy by use of force, or robbery . . . must
be proved beyond a reasonable doubt.‖ Thus, the jury could not logically have
concluded that if defendant merely acted with conscious disregard for human life
(CALJIC No. 8.11), and did not intend to commit the specified felonies, he could
be found guilty of first degree felony murder.

3. Sufficiency of the evidence of kidnapping, sodomy, robbery,
burglary, and of an independent felonious purpose
Defendant contends the evidence was insufficient to support convictions for
kidnapping, burglary, robbery, or sodomy, or to establish an independent felonious
purpose in connection with the commission of these felonies. Therefore, he
asserts, the convictions for these four felonies, any conviction for felony murder
premised upon these four felonies, and the special circumstance findings that the
murder was committed in the course of the commission of these four felonies,
violate his right to due process of law under the Fifth and Fourteenth Amendments
to the United States Constitution.
― ‗When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence
that is reasonable, credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.‘ (People v.
Lindberg (2008) 45 Cal.4th 1, 27.) ‗[T]he relevant question is whether, after

31
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‘ (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; see People
v. Staten (2000) 24 Cal.4th 434, 460 [‗An identical standard applies under the
California Constitution.‘]; People v. Cain (1995) 10 Cal.4th 1, 39 [the same
standard applies to the sufficiency of the evidence to sustain a special
circumstance finding].)‖ (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290,
fn. omitted (Lewis).) ―Although it is the jury‘s duty to acquit a defendant if it
finds the circumstantial evidence susceptible of two reasonable interpretations, one
of which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant‘s guilt beyond a reasonable doubt.
[Citation.]‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

a. Kidnapping
As explained above in our discussion of the element of asportation, the
conviction for kidnapping must be reversed, based upon error in the relevant jury
instruction. Therefore, we need not address whether substantial evidence supports
the conviction.

b. Sodomy
―Sodomy is sexual conduct consisting of contact between the penis of one
person and the anus of another person. Any sexual penetration, however slight, is
sufficient to complete the crime of sodomy.‖ (§ 286, subd. (a).) Defendant makes
two contentions: there is no evidence of penetration, and no evidence the victim
was alive when any penetration occurred. (See People v. Farnam (2002) 28
Cal.4th 107, 143 [the victim must be alive at the time of penetration].)
The evidence establishes that the victim was gagged, bound, naked from
the waist down, and positioned in a manner that exposed her anal area, there were

32
dried feces around her anal area, and the sock on which defendant‘s seminal fluid
was found was stained with feces. From these facts, a rational trier of fact could
conclude that defendant‘s penis penetrated the victim‘s anus. Defendant asserts,
however, that there are other rational explanations for the circumstantial evidence,
such as rape or masturbation by defendant together with defecation by the victim.
In support of this contention, he cites CALJIC No. 2.01, which instructed the jury
that ―a finding of guilt . . . may not be based on circumstantial evidence unless the
proved circumstances are not only (1) consistent with the theory that the defendant
is guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion.‖ The jury was instructed with CALJIC No. 2.01, and resolved the
issue of penetration against defendant.
Defendant‘s second contention, that there is no evidence the victim was
alive at the time of penetration, also fails. The evidence establishes (1) she was
already gagged and bound when most or all of the wounds were inflicted, (2) she
was alive when the 29 wounds to her neck were inflicted, and (3) she might have
survived as long as 15 minutes after the lethal wounds to her carotid artery and
jugular vein were inflicted. From these facts, a rational trier of fact could
conclude that the victim was alive when defendant sodomized her. In addition,
contrary to defendant‘s view, the timeline confirms he sodomized the victim
before she died. The victim was alive and unperturbed at 9:28 a.m., and defendant
left the clinic before patients began arriving at 10:30. During this period,
defendant entered, overpowered, and gagged the victim, moved her 40 to 50 feet,
put her on the procedure table, bound her, stripped off her socks, shoes, and other
clothing, prodded and stabbed her 29 times, and also engaged in sexual activity.
Defendant‘s contention that there is no evidence the victim was alive when
penetration occurred is without merit. (People v. Bolden (2002) 29 Cal.4th 515,
553 (Bolden).)

33
 c. Robbery
Robbery is ―the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.‖ (§ 211.) Defendant contends there is no
substantial evidence that he took any of the victim‘s property, or that he formed
the intent to take the property prior to the victim‘s death or prior to her becoming
unconscious.
The evidence reflects that the victim typically wore a watch and a ring at
work, and that her watch and her ring were missing from her body after her death.
In addition, defendant gave a watch and a ring to Gloria Salazar, stating that ―this
bitch got me mad.‖ The watch defendant gave Salazar was similar to a watch the
victim wore, except by the time of trial its black leather band was missing and its
finish appeared worn or faded. The ring he gave Salazar was gold with a green
stone, and the victim‘s ring was described as gold with an emerald stone. The
evidence reflects that the victim kept her purse and wallet in the office area, where
she apparently was confronted by defendant as she was reading a book, and that
her purse and wallet were missing from the scene. Finally, a satchel the victim
carried between work and home, which contained petty cash of $30 to $40, was
missing. Reviewing the evidence in the light most favorable to the judgment, we
conclude substantial evidence supports the conclusion that defendant took the
victim‘s watch, ring, purse, wallet, and satchel. (See People v. DePriest (2007) 42
Cal.4th 1, 47 (DePriest) [―Where a person is left dead or dying in ‗relative
proximity‘ to property that was taken, and such property is later found in the
defendant‘s possession, the jury is entitled to infer that the victim was robbed and
that the defendant committed the crime‖]; People v. Maury (2003) 30 Cal.4th 342,
402 [because property that was in the possession of the victim was missing, the
jury could reasonably infer that the defendant stole the property].) The

34
circumstances that no witness was certain it was the same watch, that no witness
saw which ring the victim was wearing on the day of the crimes, that the ring, the
purse, the wallet, and the satchel were not recovered, and that the victim‘s credit
cards were not used, do not render this evidence insufficient.
With respect to when defendant formed the intent to take the property, the
evidence reflects defendant had been employed only sporadically, 15 he was using
heroin regularly, and he did not have money to pay for drugs ―very often.‖ (See
United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1107-1109 [―addiction
establishes a likelihood of desperate need and lack of self-control, not just
financial interest in being richer‖]; United States v. Miranda (9th Cir. 1993) 986
F.2d 1283, 1285 [evidence of the defendant‘s heroin habit was admissible to
demonstrate a motive to commit a bank robbery]; see also People v. Cornwell
(2005) 37 Cal.4th 50, 96 (Cornwell) [evidence of poverty, without more, is not
admissible to prove a motive for theft or robbery].) The purse and wallet were
missing from the office area where defendant would have first encountered the
victim. The victim‘s book was on the floor, an unusual location. The watch and
ring were not present when she was discovered with shoelaces tied tightly around
her wrists. Because her hands were bound behind her back, her wrists and fingers
would have been directly in defendant‘s view as he prodded her with a
screwdriver and sexually assaulted her on the table. From these facts, a rational
trier of fact could conclude that defendant had a motive to steal, and that he
formed the intent to steal from the victim before he traveled to her office, or soon

15 Virginia Castaneda testified that from late February or early March,
defendant had worked for a ―couple of days‖ each at two businesses other than
Toyo Tires. The day of the crimes was defendant‘s first day working at Toyo
Tires.

35
thereafter, when he confronted her in the office, bound her wrists, and sexually
assaulted her. (See DePriest, supra, 42 Cal.4th at pp. 46-47 [court rejected
defendant‘s complaint that prosecution did not eliminate the possibility the
defendant formed the intent to steal after he used force, finding substantial
evidence he intended to steal when he accosted his victim]; People v. Yeoman
(2003) 31 Cal.4th 93, 128-129 (Yeoman) [intent to steal must be formed before or
during the application of force]; People v. Navarette (2003) 30 Cal.4th 458, 499
[―one can certainly rob a living person by killing that person and then taking his or
her property‖].) Therefore, substantial evidence supports the robbery conviction.
Again, defendant‘s alternative inferences do not render insufficient the substantial
evidence of his commission of robbery.

d. Burglary
Any person who enters a building or room with the intent to commit
larceny or any felony is guilty of burglary. (§ 459.) Defendant contends there was
no substantial evidence that, at the time he entered the clinic, he intended to
commit a felony therein.
―[A] defendant‘s intent . . . may be inferred from all of the facts and
circumstances disclosed by the evidence. [Citation.]‖ (People v. Carter (2005) 36
Cal.4th 1114, 1157 (Carter).) As noted above, the evidence establishes that
defendant had a motive to steal. The evidence also reflects that he desired anal
intercourse, but his girlfriend resisted. In addition, the record reflects that
defendant knew the victim would be alone in the office when he arrived, and that
he parked his vehicle where it could not be seen from inside the clinic. Finally,
the evidence reflects that defendant, armed with a screwdriver, stole the victim‘s
property, moved her to the back of the clinic, gagged her, bound her, put her on
the table, removed her clothes, sodomized her and stabbed her 29 times, all in less

36
than an hour. From the swift execution of these acts, a rational trier of fact could
conclude that when defendant entered the clinic, he intended to rob and sodomize
the victim.
The fact that the evidence may also support other scenarios does not render
insufficient the evidence supporting the verdict. (Bolden, supra, 29 Cal.4th at
p. 553.) Defendant‘s suggestions that the vehicle was not the one he was driving,
or that he parked at the restaurant because he planned to dine there after his visit to
the clinic, or that he parked there because he missed the turn to drive to the clinic,
or that the victim angered him after he entered the clinic, do not preclude the
reasonable inference that he entered the clinic with the intent to commit a felony
therein. In addition, the circumstance that the victim may have admitted him into
the clinic does not negate his felonious intent. (People v. Frye (1998) 18 Cal.4th
894, 954 [―a person who enters for a felonious purpose may be found guilty of
burglary even if he enters with the owner‘s or occupant‘s consent‖].)16

e. Independent felonious purpose
― ‗[T]o prove a felony-murder special-circumstance allegation, the
prosecution must show that the defendant had an independent purpose for the
commission of the felony, that is, the commission of the felony was not merely
incidental to an intended murder.‘ [Citations.]‖ (People v. Lindberg, supra, 45
Cal.4th at p. 27.) ―[A] jury deciding the truth of the special circumstance
allegation is not required to assign a hierarchy to the defendant‘s motives in order
to determine which of multiple concurrent intents was ‗primary,‘ but instead the

16 Because we find substantial evidence that defendant entered the clinic to
commit a felony, we need not address the Attorney General‘s alternative theory
that defendant‘s entry into the procedure room with the intent to commit a felony
also constituted burglary.

37
jury need only determine whether commission of the underlying felony was or was
not merely incidental to the murder.‖ (Bolden, supra, 29 Cal.4th at p. 558.) ―[A]
‗concurrent intent to kill and to commit an independent felony will support a
felony-murder special circumstance.‘ [Citation.]‖ (People v. Abilez (2007) 41
Cal.4th 472, 511 (Abilez).)
Defendant contends there was no evidence of an independent felonious
purpose with respect to the special circumstances based upon sodomy, robbery,
and burglary.17 As explained previously, the substantial evidence supporting
defendant‘s convictions for sodomy, robbery and burglary also supports the
conclusion that those felonies were not merely incidental to an intended murder.
―This behavior was not incidental or ancillary to the murder, but amply
demonstrates an independent felonious purpose in support of the . . . special
circumstances.‖ (Abilez, supra, 41 Cal.4th at p. 511.) Contrary to defendant‘s
suggestion, Blakely v. Washington (2004) 542 U.S. 296 (Blakely), Ring v. Arizona
(2002) 536 U.S. 584 (Ring), and Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), do not require that the jury expressly find each element of a special
circumstance.

4. Absence of instructions on lesser included offenses of second degree
murder, involuntary manslaughter, false imprisonment, and grand
theft
Defendant contends that the absence of jury instructions concerning second
degree murder, involuntary manslaughter, false imprisonment, and grand theft
deprived him of his rights to due process, a fair trial, a jury determination of every

17 Because the conviction for kidnapping must be reversed based upon error
in the relevant jury instruction, we need not address whether substantial evidence
supports the conclusion that defendant had an independent felonious purpose in
connection with the kidnapping conviction.

38
material fact, a proper determination of death eligibility, and reliable
determinations of guilt and penalty under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, and article I, sections 1, 7, 15, 16
and 17 of the California Constitution.
―It is the ‗court‘s duty to instruct the jury not only on the crime with which
the defendant is charged, but also on any lesser offense that is both included in the
offense charged and shown by the evidence to have been committed.‘ [Citation.]‖
(People v. Gutierrez (2009) 45 Cal.4th 789, 826; see Beck v. Alabama (1980) 447
U.S. 625, 637.) ―Conversely, even on request, the court ‗has no duty to instruct on
any lesser offense unless there is substantial evidence to support such instruction‘
[Citation.]‖ (Cole, supra, 33 Cal.4th at p. 1215.) Substantial evidence ―is not
merely ‗any evidence . . . no matter how weak‘ [citation], but rather ‗ ―evidence
from which a jury composed of reasonable [persons] could . . . conclude[]‖ ‘ []
that the lesser offense, but not the greater, was committed. [Citations.]‖ (People
v. Cruz (2008) 44 Cal.4th 636, 664.) ― ‗On appeal, we review independently the
question whether the court failed to instruct on a lesser included offense.‘
[Citation.]‖ (People v. Avila (2009) 46 Cal.4th 680, 705.)
As explained below, we need not decide whether the evidence would have
supported a charge of second degree murder, because the jury‘s findings establish
that the jury found defendant guilty of first degree felony murder. In addition,
because there was no substantial evidence to support convictions for involuntary
manslaughter or grand theft, the court was not required to instruct the jury
concerning these crimes. Finally, because the conviction for kidnapping must be
reversed, based upon error in the relevant jury instruction, we need not decide
whether the jury should have been instructed concerning false imprisonment as a
lesser included offense of kidnapping.

39
 a. Second degree murder
The trial court instructed the jury concerning two theories of first degree
murder: (1) willful, deliberate, and premeditated murder, and (2) killing in the
commission of specified felonies. (§ 189.) The court initially indicated that it also
would instruct the jury concerning the lesser included offense of second degree
murder, but ultimately declined to do so, stating that, earlier, it ―had not taken into
consideration the nature of the gagging and the binding.‖ The verdict did not
indicate whether the conviction for first degree murder was based upon a finding
that the murder was willful, deliberate, and premeditated, or that the killing
occurred in the commission of specified felonies. As noted above, however, the
jury found true the allegations that the murder was committed while defendant was
engaged in the commission or attempted commission of the crimes of burglary,
sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (D), (G).) Because ―the
elements of felony murder and the special circumstance[s] coincide, the true
finding[s] as to the . . . special circumstance[s] establish[] here that the jury would
have convicted defendant of first degree murder under a felony-murder theory, at a
minimum, regardless of whether more extensive instructions were given on second
degree murder. [Citations.]‖ (People v. Elliot (2005) 37 Cal.4th 453, 476
(Elliot).) Therefore, the jury necessarily found defendant guilty of first degree
felony murder, and any error in not instructing the jury concerning second degree
murder was harmless beyond a reasonable doubt.
Defendant urges the court to hold that second degree murder is a lesser
included offense of first degree felony murder. He notes that we declined in
People v. Valdez (2004) 32 Cal.4th 73, 114, footnote 17, to address this issue. We
noted, however, the Attorney General‘s contention that second degree murder is
not a lesser included offense of first degree felony murder, because malice is an
element of second degree murder, but is not an element of first degree felony

40
murder. We ultimately concluded in Valdez that the trial court did not err in
failing to instruct the jury on second degree murder, because there was no
substantial evidence ―that the killing was other than [a] robbery murder.‖ (Id. at
p. 116.) Here, defendant does not address (1) how second degree murder, which
requires malice, can be a lesser included offense of first degree felony murder,
which does not require malice, or (2) what substantial evidence supports the
conclusion that the killing was other than a burglary robbery sodomy murder.
Defendant also cites People v. Blair (2005) 36 Cal.4th 686, in which the
defendant was charged with murder by the administration of poison. (See § 189
[―All murder . . . by means of . . . poison . . . is murder of the first degree‖].) We
acknowledged in Blair that ―[i]f a jury is not satisfied that a defendant acted with
either express or implied malice, it may find the defendant guilty of second degree
murder on a felony murder theory.‖ (Blair, at p. 745, italics in original.) We
concluded, however, that (1) there was no substantial evidence that the defendant
intended merely to injure the victim, and (2) any error in failing to instruct the jury
concerning second degree felony murder was harmless, because the jury found
true the special circumstance that the defendant intentionally killed the victim by
the administration of poison. (Id. at pp. 746-747.) Similarly, in the present case,
(1) there is no evidence that defendant intended merely to injure the victim when
he bound and gagged her, inflicted 29 wounds to her neck, and left her bleeding on
the procedure table, and (2) the jury‘s finding that the killing was committed while
defendant was engaged in the commission or attempted commission of the crimes
of burglary, sodomy, and robbery precluded the jury from finding that the murder
was of the second degree. (See § 189 [murder committed in the perpetration or
attempt to perpetrate robbery, burglary, or forcible sodomy is murder of the first
degree].) Therefore, our acknowledgement in Blair that second degree felony

41
murder could be a lesser included offense of first degree murder in the
circumstances of that case is of no assistance to defendant.
Finally, defendant asserts that ―[s]econd degree felony murder instructions
would have presented the question whether [defendant] murdered [the victim]
while committing a dangerous felony other than kidnapping, burglary, sodomy,
and robbery,‖ but he does not identify what other dangerous felony he might have
committed.

b. Voluntary manslaughter
After the trial court noted that it had been provided with proposed
instructions concerning attempted rape and attempted sodomy as lesser included
offenses to rape and sodomy, it inquired of defense counsel, ―with regard to lesser
included offenses, are there any others that you are aware of?‖ Defense counsel
responded, ―No, I don‘t believe so.‖ The prosecutor then stated, ―just for the
record, on that particular point on the lesser includeds, [defense counsel] and I
have had discussions concerning this particular point in the case on several
occasions. And [defense counsel] has indicated that this is a tactical thing on his
part, and I will speculate as to what it is and I can understand what it may or may
not be. But not to go into anything else, we have had discussions on this.‖ The
trial court responded, ―All right,‖ and then proceeded to review other jury
instructions. Defense counsel did not dispute the prosecutor‘s statements.
Based upon this exchange, respondent contends the doctrine of invited error
bars defendant from challenging the absence of an instruction concerning
voluntary manslaughter. Although ―the doctrine of invited error . . . applies if the
court accedes to a defense attorney‘s tactical decision to request that lesser
included offense instructions not be given‖ (People v. Prince (2007) 40 Cal.4th
1179, 1265), the record does not reflect that defense counsel made a tactical

42
decision with respect to an instruction concerning voluntary manslaughter. (See
People v. Harris (2008) 43 Cal.4th 1269, 1299 [―the record shows no tactical
reason, and therefore we do not apply the invited error doctrine‖]; People v.
Wilson (2008) 43 Cal.4th 1, 16 [the defendant‘s agreement that the court need not
instruct on specific lesser included offenses was not invited error, because defense
counsel did not express a deliberate tactical purpose for agreeing]; People v.
Valdez, supra, 32 Cal.4th at pp. 115-116 [because the record was ambiguous as to
which lesser included offenses counsel had considered and rejected, the doctrine
of invited error did not apply].)
Voluntary manslaughter ―is the unlawful killing of a human being without
malice,‖ committed ―upon a sudden quarrel or heat of passion.‖ (§ 192, subd. (a).)
As we recently reiterated, to establish the crime of voluntary manslaughter, there
must be evidence that (1) the defendant killed in the heat of passion, and (2) such
passion would be aroused in an ordinarily reasonable person under the
circumstances. (People v. Rogers (2009) 46 Cal.4th 1136, 1168-1169.) The
evidence defendant cites in support of these elements is his statement to Gloria
Salazar that ―this bitch got me mad,‖ his statement that he had injured his thumb
working at Toyo Tires, and the presence of the victim‘s book on the floor of her
office. From this evidence, he proposes that the jury could have inferred that he
traveled to the clinic to obtain treatment for his thumb, and ―[o]nce [defendant]
arrived at the medical clinic, events transpired out of control because [defendant]
became angry over some conduct or comment by the victim.‖ We reject this
claim. The evidence does not reflect any provocation, and the theory is mere
speculation. (See People v. Wilson (1992) 3 Cal.4th 926, 941 [―Speculation is an
insufficient basis upon which to require the giving of an instruction on a lesser
offense‖].) Further, his theory is at odds with the evidence that he parked his

43
vehicle where it could not be seen from the clinic. There was no basis for a
voluntary manslaughter instruction.

c. Grand theft
As discussed above, defense counsel informed the trial court that he did not
believe there were any other lesser included offenses, and the prosecutor stated
that defense counsel had made a tactical decision concerning lesser included
offenses. The record does not reflect, however, that defense counsel made a
tactical decision not to request an instruction concerning grand theft. Therefore,
the doctrine of invited error does not apply to this claim.
― ‗Theft is a lesser included offense of robbery, which includes the
additional element of force or fear.‘ [Citation.] If intent to steal arose only after
the victim was assaulted, the robbery element of stealing by force or fear is absent.
[Citations.]‖ (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056; see
Yeoman, supra, 31 Cal.4th at pp. 128-129 [to constitute robbery, intent to steal
must be formed before or during the application of force].) ―Nevertheless, ‗the
existence of ―any evidence, no matter how weak‖ will not justify instructions on a
lesser included offense . . . .‘ [Citation.]‖ (DePriest, supra, 42 Cal.4th at p. 50.)
―Instructions on after-acquired intent and theft as a lesser included offense of
robbery are unwarranted absent ‗substantial evidence‘ that the defendant first
formed the intent to take the victim‘s property after applying force. [Citation.]‖
(People v. Zamudio (2008) 43 Cal.4th 327, 360.)
Defendant contends there is evidence to support the view that he took the
victim‘s property as ―an afterthought.‖ He cites Gloria Salazar‘s testimony that
when he gave her the ring and watch, he stated ―the bitch made me mad,‖ and said
he planned to discard the items. He concludes ―[i]t was unlikely that [defendant‘s]
motive to commit the murder was to obtain the watch and ring if he was willing to

44
throw those objects away.‖ He also notes that he did not profit from the watch and
ring, and that the victim‘s credit cards were not accessed. Finally, he characterizes
the time within which the victim became unconscious as ―only a short period.‖
First, the fact that defendant had other motives for killing the victim does
not constitute evidence that he formed the intent to steal only after he ceased
applying force against her. For example, in Gray, supra, 37 Cal.4th 168, the 87-
year-old victim was found in her trailer with her hands and feet bound and strips
of towel tied around her head and mouth. Her nightgown had been pulled up and
her underwear was around one leg. The presence of spermatozoa was detected in
her vagina and rectum, and on her external genitalia. She had suffered blunt force
trauma consistent with having been kicked, punched, or thrown. The home had
been ransacked, and nickels and dimes the victim collected in jars, along with
approximately $20 she kept in her purse, were missing. (Id. at pp. 180-181, 219.)
Following his conviction for murder, rape, sodomy, and robbery, the defendant
urged on appeal that the jury should have been instructed concerning theft as a
lesser included offense. Notwithstanding the strong inference that the defendant‘s
application of force against the victim related in large part to the sexual assault and
killing, we concluded there was no evidence that the crime was something less
than robbery. ―Contrary to defendant‘s assertions, the evidence he committed a
robbery was quite strong. Deadly force obviously was applied to the victim, easily
satisfying the force or fear requirement for robbery. (§ 211.) And ample evidence
showed the intruder had taken the victim‘s property. . . . Neither side presented
any evidence casting doubt on [testimony that property was taken and the home
ransacked]. Defendant, for example, presented a defense of simple denial, and
neither he nor the prosecution presented evidence from which the jury could have
inferred that he took the victim‘s property but formed his larcenous intent only
after he killed her. [Citation.] . . . In other words, there was no substantial

45
evidence worthy of the jury‘s consideration that the crime was something less than
robbery.‖ (Gray, supra, at p. 219.) Similarly, the inferences in this case that
defendant‘s attack was focused principally upon his desire to sodomize the victim,
and that the killing was to avoid apprehension, do not support an inference that he
formed the intent to steal only after he ceased applying force against the victim.
Second, as in Gray, supra, 37 Cal.4th 168, neither the prosecution nor the
defense presented evidence that would support an inference defendant formed the
intent to steal only after he applied force. The circumstances identified by
defendant — he stated the victim made him mad and he intended to discard the
watch and ring, he gave the watch and ring to his cousin, and he did not access the
victim‘s credit cards — reflect that he ultimately decided not to keep or use these
particular items (although he presumably spent the missing money), but these
circumstances have no tendency to establish at what point in time he formed the
intent to steal from the victim. Nor does the fact that the victim may have quickly
lost consciousness establish when the defendant decided to steal. Because there is
no substantial evidence that defendant formed the intent to steal only after he
ceased applying force to the victim, the trial court was not required to give an
instruction concerning grand theft.

5. Prosecutor’s comments concerning the evidence
Defendant contends the prosecutor commented upon defendant‘s failure to
testify at trial, and thereby violated his right to remain silent under the Fifth and
Fourteenth Amendments to the United States Constitution. He also contends that
his counsel‘s failure to object to the comment constituted ineffective assistance of
counsel under the Sixth Amendment to the United States Constitution, and article
I, section 15 of the California Constitution.

46
 During the prosecutor‘s opening argument at the guilt phase, he reviewed
the evidence against defendant and exculpatory testimony presented by the
defense. With respect to the exculpatory testimony, the prosecutor concluded that
―the witnesses out of a desire . . . to help their relative and friend, their uncle, their
brother, their boyfriend, ex-boyfriend, to help him out in this situation, tried to
remember things that simply were not true but that was based upon a factual
incident.‖ Following his review of the evidence, he stated, ―That is the evidence
in this case. The evidence in this case is not contradicted by any other evidence in
this case. It is very clear. It is proof beyond a reasonable doubt that the defendant
committed those crimes that he is charged with.‖ (Italics added.) Defendant did
not object to these statements.
The Fifth and Fourteenth Amendments to the United States Constitution
―forbid[] either comment by the prosecution on the accused‘s silence or
instructions by the court that such silence is evidence of guilt.‖ (Griffin v.
California (1965) 380 U.S. 609, 615, fn. omitted.) ―Although a prosecutor is
forbidden to comment ‗ ―either directly or indirectly, on the defendant‘s failure to
testify in his defense,‘ ‖ the prosecutor may comment ‗ ―on the state of the
evidence, or on the failure of the defense to introduce material evidence or to call
logical witnesses.‖ ‘ [Citation.]‖ (Cornwell, supra, 37 Cal.4th at p. 90.)
Defendant has forfeited his claim by failing to object. (Lewis, supra, 46
Cal.4th at p. 1303.) He urges the court to reject the rule that a failure to object
forfeits a challenge to a prosecutor‘s comment upon a defendant‘s failure to
testify, but he provides no persuasive reason to alter the rule, and we decline to do
so. Alternatively, he asserts counsel‘s failure to object constituted ineffective
assistance of counsel. This claim fails, however, because the prosecutor‘s
statement that the evidence was uncontradicted simply reflected his view that the
exculpatory evidence was not true; it was not a comment upon defendant‘s failure

47
to testify. Thus, defense counsel had no basis for objecting to the statement, and
was not deficient for declining to do so. (See Strickland v. Washington (1984) 466
U.S. 668, 689 (Strickland).)

6. Cumulative prejudice
Defendant contends errors committed during the guilt phase had a
cumulative prejudicial effect. We have found error in the trial court‘s instruction
concerning the asportation element of kidnapping, and have concluded that the
conviction for kidnapping must be reversed and the true findings related to the
kidnapping must be vacated. We have also concluded that any error in failing to
instruct the jury concerning second degree murder was harmless beyond a
reasonable doubt, because the jury found that the murder was committed while
defendant was engaged in the commission or attempted commission of the crimes
of burglary, sodomy, and robbery, and therefore necessarily found defendant
guilty of first degree felony murder. Together, the error and the presumed error
had no cumulative prejudicial effect, and did not deny defendant a fair trial.

C. Penalty Phase Issues

1. Counsel’s failure to object to the admission of evidence of
defendant’s escapes from custody
Defendant contends that his counsel‘s failure to object to the admission of
evidence of nonviolent escapes or attempts to escape from custody constituted a
violation of his right to effective assistance of counsel under the Sixth and
Fourteenth Amendments to the United States Constitution, and article 1, section
15, of the California Constitution.
During cross-examination of Drs. Hall and Gawin, the prosecutor reviewed
defendant‘s criminal record, including two escapes from California Youth
Authority facilities and one escape from the Los Angeles County jail. In addition,
included in three packets of documents that were admitted to establish three prior

48
convictions (first degree burglary, second degree burglary, and second degree
robbery) were probation officers‘ reports that listed defendant‘s criminal record,
including escapes from custody. Finally, Deputy Braaten testified that he found a
―homemade‖ handcuff key in defendant‘s cell at the facility in which he was
incarcerated during the trial.
The evidence of defendant‘s nonviolent escapes was inadmissible as an
aggravating factor under section 190.3, factor (b): ―The presence or absence of
criminal activity by the defendant which involved the use or attempted use of
force or violence . . . .‖ Its inadmissibility as an aggravating factor, however, ―did
not render it inadmissible on cross-examination to rebut good character evidence
offered by defendant. [Citation.]‖ (People v. Burgener (2003) 29 Cal.4th 833,
874; see also People v. Boyd (1985) 38 Cal.3d 762, 776.) In the present case,
defendant presented evidence concerning his conduct in prison, his assertedly
―stable life‖ during a period when he was not using heroin (a period when he
escaped from a California Youth Authority facility), and his behavior when he was
not associating with his brothers. Thus, an objection to the admission of evidence
of defendant‘s escapes from custody would have lacked merit. Therefore,
counsel‘s performance was not ―outside the wide range of professionally
competent assistance.‖ (Strickland, supra, 466 U.S. at p. 690.)
Defendant complains, however, that the prosecutor mentioned his escapes
in the course of cross-examining Dr. Hall concerning the factors that determine a
prisoner‘s placement and security level, and that these references were unrelated to
defendant‘s character. In addition, the references to his escapes in the exhibits that
were admitted to establish defendant‘s prior convictions were not admitted to
rebut evidence concerning defendant‘s character. The decision whether to object
to the admission of evidence is ―inherently tactical,‖ and a failure to object will
rarely reflect deficient performance by counsel. (People v. Hillhouse (2002) 27

49
Cal.4th 469, 502.) Because the evidence was admissible to rebut defendant‘s good
character evidence, counsel reasonably may have decided to avoid drawing further
attention to defendant‘s escapes with objections to brief references to the escapes
in other contexts. Although counsel could have objected outside the presence of
the jury to the references in the probation officers‘ reports, any oversight in failing
to do so could not have affected the outcome, in light of the admissibility of the
same evidence in other contexts.18 (Strickland, supra, 466 U.S. at p. 694 [―The
defendant must show that there is a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have been different‖].)

2. Defendant’s right to present mitigating evidence
Defendant contends that limitations placed by the trial court upon expert
testimony provided by Dr. Armando Morales impaired defendant‘s right to present
mitigating evidence, depriving him of his rights to due process and to be free from
the imposition of cruel and unusual punishment under the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution, and article I, sections 7
and 17 of the California Constitution.
As discussed more fully below, the trial court ordered that Dr. Morales was
not to testify concerning any genetic cause of defendant‘s problems. The court
also precluded Dr. Morales‘s use of a chart that listed (1) the criteria under the
American Psychiatric Association‘s Diagnostic and Statistical Manual of Mental

18 There was no suggestion during the prosecutor‘s argument to the jury that
the evidence of defendant‘s escapes represented aggravating evidence. On the
contrary, he informed the jury that the only prior convictions that jurors could
consider as aggravating evidence were two burglaries and a robbery, and he added
that ―you have heard a lot of other evidence of other crimes. Those are not factors.
The only reason those other crimes were presented is to refute some of the
evidence that was . . . brought before you in [connection with defendant‘s
argument for mitigation under section 190.3 factor(k)].‖

50
Disorders, 4th edition (DSM-IV), related to ―major depression,‖ and
(2) Dr. Morales‘s corresponding criteria of ―gang member depression.‖ For the
reasons set forth below, we conclude the trial court did not abuse its discretion.
Several principles guide our analysis. First, ―The qualification of expert
witnesses, including foundational requirements, rests in the sound discretion of the
trial court. [Citations.] That discretion is necessarily broad: ‗The competency of
an expert ―is in every case a relative one, i.e. relative to the topic about which the
person is asked to make his statement.‖ [Citation.]‘ [Citation.] Absent a manifest
abuse, the court‘s determination will not be disturbed on appeal. [Citations.]‖
(People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Second, ―the expert‘s opinion
may not be based ‗on assumptions of fact without evidentiary support [citation], or
on speculative or conjectural factors . . . . [¶] Exclusion of expert opinions that
rest on guess, surmise or conjecture [citation] is an inherent corollary to the
foundational predicate for admission of the expert testimony: will the testimony
assist the trier of fact to evaluate the issues it must decide?‘ [Citation.]‖
(Richardson, supra, 43 Cal.4th at p. 1008.) Finally, ―[t]he court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.‖ (Evid. Code, § 352.)
As noted above, Dr. Morales was a professor of psychiatry and
biobehavioral sciences, a field he described as ―cover[ing] the biological, social,
psychological research and issues related to human behavior.‖ He had a
bachelor‘s degree in sociology with a minor in criminology, a master‘s degree in
social work, and a doctorate in clinical social work. He was not, however,
educated as a physician or geneticist. Prior to becoming a professor, he worked as
a ―gang group worker‖ at a recreational agency, as a peace officer with the Los
Angeles County Probation Department, and as a senior deputy probation officer

51
with that department. In addition to his work as a professor, he was a consultant
with the California Youth Authority.
In the course of his testimony, Dr. Morales described some of defendant‘s
maternal ancestors who abused alcohol. The prosecutor interposed a relevancy
objection. Outside of the jury‘s presence, Dr. Morales stated that mental health
professionals examine family history, ―because increasingly they are finding
research information to show certain genetic connections between alcoholism and
drug dependence in offspring.‖ On cross-examination, he conceded he had no
training ―specifically‖ in genetics, but testified that ―they have [found] addiction
genes in individuals,‖ and that another doctor had ―discovered specific gene
connections from fathers to sons.‖ He also stated that he had not done any gene
testing on defendant or any of defendant‘s relatives. Upon inquiry by the court,
Dr. Morales stated that when a mental health professional finds evidence of family
alcohol problems, ―it gives us more information to be able to draw a conclusion,
whether or not there appears to be a linkage in a heredity-type of factor to a
particular patient.‖ He added that ―when we look at [defendant‘s] mother‘s
history and all her sons, we begin to see a very strong preponderance of addiction
in the family, which again makes more solid a particular point of alcoholism or
drug addiction in this particular family that might have a very powerful genetic
basis to it.‖ When pressed by the trial court to explain the basis of his conclusion
that there were genetic reasons for the family history, Dr. Morales responded,
―Mainly how we are trained to take the history. But we are not experts in the
genetic area. I‘m not an expert in genetic areas and have not had all that particular
kind of training.‖ The court ruled that Dr. Morales could testify concerning
defendant‘s family history, ―but not with regard to any issues involving genetics.‖
The trial court did not abuse its discretion in concluding that Dr. Morales
was not competent to testify concerning a genetic basis for defendant‘s drug and

52
alcohol problems. Dr. Morales testified that he had no training in genetics and
was ―not an expert in genetic areas.‖ His testimony reflects that he was trained as
a social worker to collect information concerning family substance abuse, but it
does not establish that he was qualified to testify concerning the genetic basis of a
family‘s history. (See People v. Williams (1992) 3 Cal.App.4th 1326, 1334 [―It is
not unusual that a person may be qualified as an expert on one subject and yet be
unqualified to render an opinion on matters beyond the scope of that subject‖].)
Defendant attempts to cast the trial court‘s ruling as a violation of Evidence
Code section 801, subdivision (b), which provides that an expert‘s opinion must be
―[b]ased on matter . . . that is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his testimony relates.‖ He
asserts that ―Dr. Morales‘[s] testimony that social scientists commonly look for
genetic links between a patient and his family by examining the family
background established that genetics was a matter reasonably relied upon by
experts in Dr. Morales‘[s] field.‖ (Italics added.) Although there may exist
genetic studies or information upon which a social scientist might reasonably rely
in reaching conclusions concerning the causes of an individual‘s problems or
conditions, Dr. Morales did not identify any such basis for the conclusions he
sought to draw. He had not done any genetic testing on defendant or any of
defendant‘s relatives. Dr. Morales stated that ―increasingly they are finding
research information to show certain genetic connections between alcoholism and
drug dependence in offspring,‖ and that ―they have [found] addiction genes in
individuals,‖ but further inquiry revealed only that another doctor had ―discovered
specific gene connections from fathers to sons.‖ Not only were the ―gene
connections‖ not identified or described, but the proffered testimony concerned
defendant‘s mother’s family. Contrary to defendant‘s assertion, Dr. Morales did
not testify that ―social scientists routinely base their opinions on the assumption

53
that there is a genetic link between the patient and his family.‖ Even if he had so
testified, the mere fact that there is a genetic link between a patient and his or her
biological family does not qualify a social scientist to testify concerning a genetic
cause of substance abuse. In sum, the ―genetics‖ upon which defendant claims
Dr. Morales reasonably relied was an area of expertise rather than information
considered by the witness, and Dr. Morales conceded that he was not an expert in
this area.
Defendant attempts to avoid these conclusions by contending that the trial
court‘s ruling violated Evidence Code section 802, which provides that an expert
witness ―may state on direct examination the reasons for his opinion and the
matter . . . upon which it is based.‖ Because the trial court determined Dr.
Morales was not qualified to testify concerning ―genetics,‖ and there was no other
foundation for his proffered opinions on the subject of genetics, the court was not
required to allow him to testify concerning his reasons for his opinions on
genetics. Finally, defendant‘s assertion that ―[t]he trial court . . . lacked any
factual foundation for concluding that social workers could not rely on genetics in
forming their assessments of individuals‖ ignores the burden of the profferer of
expert testimony. The profferer must establish that the witness is an expert in the
area upon which expert testimony will be given, and that the witness‘s opinion is
based on matters of a type upon which such experts reasonably rely. (Evid. Code,
§ 801.)19

19 Defendant notes that the trial court also ruled that Dr. Morales could not
testify that defendants‘ relatives were ―alcoholics,‖ but he provides no legal
analysis concerning the propriety of this ruling. Therefore, we need not address
the ruling. (See People v. Catlin (2001) 26 Cal.4th 81, 133 [because defendant
―fails to offer any authority or argument in support of this claim, . . . it is not
considered here‖]; People v. Barnett (1998) 17 Cal.4th 1044, 1182 [because
defendant ―fails . . . to support that claim with adequate argument[, w]e . . . reject
(footnote continued on next page)

54
 Next, defendant challenges the evidentiary ruling precluding Dr. Morales‘s
use of an exhibit regarding ―gang member depression.‖ In the course of testifying
about defendant‘s psychological disorders, Dr. Morales proposed to use a chart
entitled ―DSM-IV Criteria for Depression Versus Gang Member Depression,‖
which contrasted established diagnostic criteria for depression with what he
referred to as the ―cultural expression‖ of depression in gang members. The left
column of the chart listed the DSM-IV‘s nine symptoms of ―major depression,‖
and the right column listed nine corresponding criteria of ―gang member
depression.‖
The prosecutor objected that there was no foundation ―as to the source of
this material.‖ Dr. Morales stated that he had gathered the information over more
than 40 years, ―based upon my clinical experience in working with gang members
who had been suffering various kinds of depressions but which had been
undetected by various mental health professionals because they were relying
solely on DSM-IV criteria.‖ During voir dire by the prosecutor, Dr. Morales
confirmed that he had developed a new set of criteria related to depression, and he
stated that he had published an article and given presentations to psychiatric peers

(footnote continued from previous page)

it as not properly raised‖].) In any event, the record supports the trial court‘s
ruling. The only basis for Dr. Morales‘s characterization of defendant‘s relatives
as alcoholics was ―this history that is being reported [by family members] of a
drinking problem or alcoholism and so forth.‖ The court reasonably concluded
that family perceptions of alcohol abuse were relevant, but were not an adequate
foundation to support a conclusion that the relatives were alcoholics. Defense
counsel responded, ―That is no problem. As long as he is allowed to testify about
substance abuse.‖ The trial court did not prohibit testimony concerning substance
abuse.

55
concerning the differences in the criteria for gang member depression versus non-
gang member depression.
After excusing the jury, the court commented that the prosecutor
―appear[ed] to be going towards a Kelly/Frye interrogation‖20 of the witness. The
prosecutor stated that he did not believe a Kelly/Frye hearing was required,
because no foundation had been laid to establish that Dr. Morales‘s theory
satisfied the criteria of a ―scientific‖ study. The court expressed the view that the
exhibit was not ―suggesting a new theory of depression,‖ and Dr. Morales
confirmed that his chart did not reflect a new scientific theory.21 The court then
asked the expert witness whether ―this is a step towards adding some type of
specific category down the road somewhere after investigation into your
observations occur[s] to the DSM-IV. He responded, ―No. The DSM-IV is
something totally independent.‖ He reiterated that he was trying to report his
observations, and that scientific inquiry by others might ―confirm or totally

20 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923)
293 F. 1013.
21 Dr. Morales explained that his data concerning gang depression was the
first step in scientific research. ―Once this is published in professional journals
and so forth, then the field begins to react, the field then will take some of these
things and conduct in depth kinds of studies based upon the criteria you were just
mentioning.‖ The prosecutor responded that the witness was ―attempting to add
another category to the DSM-IV, gang member depression, and it‘s based upon the
doctor‘s initial field research, and as a result, we feel there isn‘t foundation for the
introduction at this point.‖ The witness disputed the assertion that he was
attempting to add a category to DSM-IV, and stated that he was attempting ―to get
the information in the field to those that work with gang members. At that point I
get some feedback or people might initiate scientific studies . . . . This is the first
stage. We have to begin seeing data patterns which I have done. They might say,
we have tried the research and it doesn‘t work, or they might say, we are
confirming what your initial impressions were with the particular group.‖

56
disapprove these particular behaviors in trying to arrive at some diagnostic
conclusion of depression.‖
The court sustained the objection ―with regard to the chart itself. I will
allow you to make inquiry of the doctor as to his evaluation, his observations, as to
his expertise and experience and what he‘s observed about gang members that he‘s
studied and depression and relate that to your client, which I expect is the next step
that you are going to take.‖ The prosecutor objected that ―there has been no
relation‖ of the proffered testimony to defendant, and the court further addressed
the basis and limits of its ruling. It stated it would not allow the witness to use the
chart, because the chart suggested that scientific studies had been performed or
would be performed concerning the witness‘s theory. It then explained, ―I will
allow you to ask him about his observations of depression in gang members. I will
allow you to offer . . . that he agrees with the analysis of specifically depression.
He‘s indicated he has relied on and reviewed the documentations from Dr. Hall
and Dr. Gawin. And so I will allow you to make those connections to [defendant].
But I am going to keep [the chart] out.‖ Defense counsel responded, ―No
problem.‖
Defendant now contends that the information set forth in the chart was
admissible because (1) it was rationally based upon Dr. Morales‘s perceptions,
(2) those perceptions were matters upon which an expert may rely, and (3) an
expert may testify concerning the bases of his or her opinions. (Evid. Code,
§§ 800, subd. (a), 801, subd. (b), 802.) As our summary of the record reflects,
Dr. Morales was not precluded from testifying concerning the information set
forth in his chart.
Defendant also contends that Dr. Morales‘s observations did not require
scientific validation. Although the prosecutor‘s objections focused upon his
expectation that Dr. Morales would testify concerning a new ―scientific‖ study, the

57
trial court‘s concern was that the chart misleadingly suggested some scientific
basis to Morales‘s criteria of gang depression. Thus, the court did not require
scientific validation of Morales‘s observations; rather, the court excluded evidence
that suggested there was scientific validation of the observations.22
Finally, defendant presents no legal authority for the proposition that the
exclusion of testimony based upon the incompetence of the witness or the absence
of a foundation for the testimony, or the exclusion of a misleading exhibit, violates
a defendant‘s right to present mitigating evidence. As we have observed, ―[t]he
‗routine application of state evidentiary law does not implicate [a] defendant‘s
constitutional rights.‘ [Citation.]‖ (People v. Hovarter (2008) 44 Cal.4th 983,
1010.)

3. Defendant’s absence from a hearing concerning penalty phase jury
instructions
Defendant contends his absence from a hearing at which the penalty phase
jury instructions were discussed deprived him of his right to be present at critical
stages of the trial under the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution, article I, sections 7 and 15 of the California
Constitution, and sections 977, subdivision (b), and 1043, subdivision (a).

22 Presumably because defendant believes the trial court excluded the exhibit
on the ground that Dr. Morales‘s theory required scientific validation, he does not
address the propriety of the trial court‘s decision to exclude the chart on the
ground that it was misleading. We note, however, that in light of the trial court‘s
ruling that Dr. Morales would be allowed to testify ―about his observations of
depression in gang members . . . [and] to make those connections to [defendant],‖
it is clear that the trial court did not abuse its discretion in concluding that the
probative value of the chart was substantially outweighed by the probability that
its admission would mislead the jury. (See Evid. Code, § 352.)

58
 Defense counsel reported to the court that defendant wished to be excused
from a hearing concerning the jury instructions at the penalty phase. The trial
court reviewed sections 977 and 1043 concerning the absence of a defendant at the
defendant‘s request, and solicited the views of counsel as to whether defendant
was required to be present at the discussion of jury instructions. Both the
prosecution and the defense expressed the view that a court may allow a defendant
to be absent upon his or her request. The court then addressed defendant: ―[Y]our
attorney has indicated that you are requesting to be excused while we go over jury
instructions. Is that your request, sir?‖ Defendant responded, ―That‘s correct,
your honor.‖ The court asked, ―Do you understand we are going to finalize the
jury instructions that will be given tomorrow to the jury with regard to this
phase?‖ Defendant responded, ―Yes, I understand that.‖ The court asked, ―And
you still wish not to be present?‖ Defendant confirmed, ―That‘s correct.‖ The
trial court allowed defendant to be excused.
Defendant acknowledges that, ― ‗as a matter of both federal and state
constitutional law, . . . a capital defendant may validly waive presence at critical
stages of the trial.‘ [Citation.]‖ (People v. Jackson (1996) 13 Cal.4th 1164, 1210.)
He contends, however, that (1) his waiver failed to meet the standards associated
with waiver of a constitutional right, (2) the trial court erred in failing to obtain a
written waiver of his statutory right to be present (§§ 977, 1043),23 (3) the trial

23 Section 977 requires any defendant charged with a felony to ―be present at
the arraignment, at the time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of fact, and at the time
of the imposition of sentence. The accused shall be personally present at all other
proceedings unless he or she shall, with leave of court, execute in open court, a
written waiver of his or her right to be personally present, as provided by
paragraph (2).‖ (§ 977, subd. (b)(1).) Section 1043 requires a defendant charged
with a felony to be present at trial, except in any case in which (1) his or her
(footnote continued on next page)

59
court‘s failure to comply with this statutory requirement constitutes a violation of
the federal constitutional right to due process of law (see Hicks v. Oklahoma
(1980) 447 U.S. 343), and (4) the asserted errors were prejudicial. Defendant‘s
arguments fail because he had neither a constitutional nor a statutory right to be
present at the discussion of the penalty phase jury instructions.
As discussed above, in part II.A.1., there are various limitations upon a
defendant‘s right to be present at trial. First, ― ‗[u]nder the Sixth Amendment‘s
confrontation clause, a criminal defendant does not have a right to be personally
present at a particular proceeding unless his appearance is necessary to prevent
―interference with [his] opportunity for effective cross-examination.‖ ‘
[Citation.]‖ (Cole, supra, 33 Cal.4th at p. 1231.) Defendant provides no
explanation concerning how the discussion of penalty phase jury instructions had
any relation to his opportunity for effective cross-examination, nor do we perceive
any relation. (See Gray, supra, 37 Cal.4th at p. 198 [litigants must support each
legal point with argument].)
Second, ― ‗under the Fourteenth Amendment‘s due process clause, a
criminal defendant does not have a right to be personally present at a particular
proceeding unless he finds himself at a ―stage . . . that is critical to [the] outcome‖
and ―his presence would contribute to the fairness of the procedure.‖ ‘
[Citations.]‖ (Cole, supra, 33 Cal.4th at p. 1231.) Defendant contends that during
discussion of whether his escapes from custody involved the use or attempted use

(footnote continued from previous page)

conduct is so disorderly that trial cannot be carried on in his presence, or (2) no
charged offense is punishable by death and the defendant is absent voluntarily.
(§ 1043, subd. (b)(1), (2).) Section 1043 further provides, however, that its
provisions ―shall not limit the right of a defendant to waive his right to be present
in accordance with section 977.‖ (§ 1043, subd. (d).)

60
of force or violence within the meaning of section 190.3, factor (b), he could have
provided counsel ―useful facts about the escapes,‖ but he does not identify any
such facts. He also contends that when the prosecutor argued that defendant‘s
escapes were admissible as aggravating evidence because ―any escape has the
potential for violence,‖ defendant ―could have assisted his counsel by pointing out
to him that his escapes did not involve violence.‖ According to defendant,
―defense counsel may then have realized that evidence of [defendant‘s] escapes
. . . was not proper aggravation and should have been the subject of a motion to
strike.‖ Not only is this theory speculation, but the premise of the discussion was
that the escapes did not involve violence, only the potential for violence.
Therefore, it would have made no difference if defendant had been present and
reiterated that his escapes did not involve violence. Defendant has failed to
establish his presence would have contributed to the fairness of the proceedings.
Third, ―[u]nder article I, section 15 of the California Constitution, ‗a
criminal defendant does not have a right to be personally present ―either in
chambers or at bench discussions that occur outside of the jury‘s presence on
questions of law or other matters as to which [his] presence does not bear a
‗ ― ‗reasonably substantial relation to the fullness of his opportunity to defend
against the charge.‘ ‖ ‘ ‖ [Citations.]‘ [Citations.]‖ (Cole, supra, 33 Cal.4th at
p. 1231.) For the same reasons that his presence would not have contributed to the
fairness of the proceedings under the Fourteenth Amendment, his presence did not
bear a reasonably substantial relation to the fullness of his opportunity to defend.
Finally, ―under sections 977 and 1043, a criminal defendant does not have a
right to be personally present, even in the absence of a written waiver, where he
does not have such a right under article I, section 15 of the California Constitution.
[Citations.]‖ (Cole, supra, 33 Cal.4th at p. 1231 [defendant‘s absence from in-
court conferences related to guilt and penalty phase jury instructions did not bear a

61
reasonably substantial relationship to his opportunity to defend against the
charge]; People v. Riel (2000) 22 Cal.4th 1153, 1195-1196 [the defendant‘s
presence at discussions of jury instructions would not ―have affected the fullness
of his opportunity to defend against the charges‖]; Waidla, supra, 22 Cal.4th at
pp. 741-742 [conference in chambers related to instructions did not bear a
reasonably substantial relation to the fullness of the defendant‘s opportunity to
defend]; People v. Dennis (1998) 17 Cal.4th 468, 538 [―We find it unlikely that
defendant, a layperson, would have contributed in any way to the discussions
regarding appropriate instructions on issues of law‖].) For the same reason
defendant had no right under the California Constitution to be personally present
at these discussions, he had no right under sections 977 and 1043 to be personally
present, nor was a written waiver required. (Cole, supra, at p. 1231.)

4. Imposition of the death penalty upon individuals with defendant’s
mental and emotional deficits
Defendant contends that imposition of the death penalty upon a person with
the mental and emotional deficits from which he suffers constitutes cruel and
unusual punishment under the Eighth and Fourteenth Amendments to the United
States Constitution, and article I, section 17 of the California Constitution.
Based principally upon the testimony of prosecution expert Dr. Baca,
defendant asserts that he suffers from mental and emotional deficits that developed
during his childhood, and that these deficits ―impaired his ability to perceive right
from wrong, contributed to impulsive behavior, and substantially diminished his
culpability for the crime.‖ He contends that under the reasoning of Atkins v.
Virginia (2002) 536 U.S. 304 (8th Amend. prohibits the execution of mentally
retarded criminals) and Roper v. Simmons (2005) 543 U.S. 551 (8th Amend.
prohibits the execution of minors), the execution of an individual with such

62
deficits violates prohibitions upon cruel and unusual punishment. As explained
below, Atkins and Roper do not support defendant‘s contention.
To decide whether evolving standards of decency dictate that death is an
excessive punishment, the high court looks first to objective evidence. (Atkins v.
Virginia, supra, 536 U.S. at p. 313.) In Atkins, the court noted that, following the
execution of a mentally retarded murderer in 1986, numerous states had acted to
prohibit the execution of mentally retarded criminals. During the same period, no
states had acted to reinstate the execution of such individuals. The court
concluded that ―it is fair to say that a national consensus has developed against it.‖
(Id. at pp. 313-316, fn. omitted.) Similarly, in Roper v. Simmons, supra, 543 U.S.
551, the court observed that the majority of states had rejected the propriety of
executing individuals who were under 18 years of age at the time they committed
their criminal acts. (Id. at p. 568.)
In addition to considering objective evidence, the high court applies its own
judgment, ―by asking whether there is reason to disagree with the judgment
reached by the citizenry and its legislators.‖ (Atkins v. Virginia, supra, 536 U.S. at
p. 313.) The Atkins court noted that mentally retarded individuals have diminished
capacities to process information, to communicate, to learn from experience, to
reason, to control impulses, and to understand the reactions of others. (Id. at
p. 318, fn. omitted.) It also acknowledged evidence that ―they often act on
impulse rather than pursuant to a premeditated plan, and that in group settings they
are followers.‖ (Ibid., fn. omitted.) The court in Atkins concluded that these
deficiencies ―diminish [the] personal culpability‖ of such defendants. (Ibid.) In
light of these deficiencies, the court identified two reasons for excluding mentally
retarded individuals from imposition of the death penalty: (1) the justifications for
the death penalty — retribution and deterrence — are not served by executing the
mentally retarded, and (2) the risk of wrongful execution is enhanced by various

63
factors, including the possibility of false confessions and their lesser ability to
present evidence in mitigation and to assist counsel. (Id. at pp. 318-321.)
Similarly, in Roper v. Simmons, supra, 543 U.S. 551, the court identified
differences between juveniles and adults that ―demonstrate that juvenile offenders
cannot with reliability be classified among the worst offenders.‖ (Id. at p. 569.)
First, their lack of maturity and their underdeveloped sense of responsibility lead
to reckless behavior, and this susceptibility to irresponsible behavior renders their
conduct less morally reprehensible. Second, they are more susceptible to negative
influences and pressures, and have less control over their environment. Therefore,
they have a greater claim to forgiveness. Third, their personality traits are more
transitory, which ―means it is less supportable to conclude that even a heinous
crime committed by a juvenile is evidence of irretrievably depraved character.‖
(Id. at pp. 569-570.) Due to juveniles‘ diminished culpability, the case for
retribution is weaker than for adult murderers. In addition, it is not clear whether
the death penalty has a significant deterrent effect upon juveniles. Finally, the
court rejected the view that these circumstances should be considered by the jury
as mitigating factors rather than as a reason for the law to preclude imposition of
the death penalty upon juveniles, concluding that ―[t]he differences between
juvenile and adult offenders are too marked and well understood to risk allowing a
youthful person to receive the death penalty despite insufficient culpability.‖ (Id.
at pp. 572-573.)
Defendant fails to establish that his condition — an antisocial personality
disorder — is analogous to mental retardation or juvenile status for purposes of
imposition of the death penalty. First, there is no objective evidence that society
views as inappropriate the execution of death-eligible individuals who have an
antisocial personality disorder. Second, although the expert testimony reflected
that individuals with an antisocial personality disorder are not amenable to

64
treatment, the evidence also reflected that such individuals are aware of what they
are doing, and that they have the ability to choose not to commit crimes.
Accordingly, their disorder does not diminish their personal culpability. In
addition, the justifications for the death penalty — retribution and deterrence —
may be served by application of the law to such individuals. Moreover, their
ability to charm and manipulate others, to deny responsibility, and to provide
excuses for their conduct, enhances rather than diminishes their capacity to avoid
wrongful conviction and execution. For these reasons, we believe the high court
would agree with the implied legislative decision not to exclude individuals with
an antisocial personality disorder from eligibility for the death penalty.

5. Prosecutor’s comments concerning defendant’s lack of remorse
Defendant contends the prosecutor commented upon defendant‘s failure to
testify at the penalty phase, and thereby violated his right to remain silent
guaranteed under the Fifth and Fourteenth Amendments to the United States
Constitution. He also contends that his counsel‘s failure to object to the comments
constituted ineffective assistance of counsel under the Sixth Amendment to the
United States Constitution, and article I, section 15 of the California Constitution.
During the prosecutor‘s argument at the penalty phase, he stated that
defendant ―showed no sympathy, no empathy for her whatsoever. We can only
imagine what she was doing during this attack, and in spite of that input that she
was giving, the cries, the sounds, he continued his attack upon her. It was
unprovoked. There was nothing she could have done to have prevented this crime
happening to her. There are murder situations in which the victim does things,
goes into areas, antagonizes a dangerous person, and as a result, things happen to
that person. That didn‘t happen here. That didn‘t happen here. She was a
completely innocent person in this particular case. And finally, this particular

65
crime, so casual, in that the defendant, it appears, simply went to that place on a
fantasy that he had, a thought that he had, knocked on the door, went in, did this
all in a short period of time and then casually leaves the scene. Casually leaves
the scene. That‘s one of the horrors in this case. The two people, three people
inside that restaurant where he parked the car didn‘t hear any squealing of tires as
he left. He casually left the scene here. We didn’t hear any evidence of, you
know, being struck by the horror of the crime that he had committed here, as so
often you do see in other types of murder cases. In fact, this is a rather unique
case in that the defendant, the crime in this particular case, has no remorse
attached to it whatsoever.‖ (Italics added.) Defendant did not object to these
statements.
Defendant contends that the italicized statements referred to evidence
concerning his state of mind, which, he asserts, could be provided only by
defendant. (See Carter, supra, 36 Cal.4th at p. 1266 [the prosecution may not
refer to the absence of evidence that only the defendant‘s testimony could
provide].) Defendant has forfeited his claim by failing to object. (Lewis, supra,
46 Cal.4th at p. 1303.) As noted above, defendant urges the court to reject the rule
that a failure to object forfeits a challenge to a prosecutor‘s comment upon a
defendant‘s failure to testify, but he provides no persuasive reason to alter the rule,
and we decline to do so. Alternatively, he asserts counsel‘s failure to object
constituted deficient performance by counsel. This claim fails, however, because
the prosecutor‘s statements were not improper. Although the prosecution may not
refer to the defendant‘s failure to testify, it may comment upon the defendant‘s
lack of remorse. (People v. Boyette (2002) 29 Cal.4th 381, 453-454.) The
prosecutor‘s comments referred to the evidence of defendant‘s conduct in
connection with his commission of the crime, and to the absence of evidence of
remorse, which might have been presented by friends or relatives who believed he

66
was remorseful; the prosecutor‘s comments did not directly or indirectly refer to
defendant‘s failure to testify. Thus, defense counsel had no basis for objecting to
the comments, and did not perform deficiently in declining to do so. (See
Strickland, supra, 466 U.S. at p. 687.)

6. Instruction and argument regarding mitigating factors
Defendant contends (1) the trial court‘s failure to modify CALJIC No. 8.85
to delete descriptions of inapplicable mitigating factors, (2) the prosecutor‘s
comments concerning certain mitigating factors, and (3) defense counsel‘s failure
to object to the jury instruction and the prosecutor‘s comments, deprived him of
his rights to due process, to a reliable determination of penalty, to be free from the
imposition of cruel and unusual punishment, and to effective assistance of counsel
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, and article I, sections 7, 15, and 17 of the California Constitution.
We begin with the contention that the trial court should have modified the
standard jury instruction. Before evidence was presented at the penalty phase, and
again following the presentation of evidence and argument, the trial court
instructed the jury, pursuant to CALJIC No. 8.85, concerning the factors it should
consider, ―if applicable.‖24 Defendant did not request any clarifying change to the

24 The jury was instructed:
―In determining which penalty is to be imposed on the defendant, you shall
consider all of the evidence which has been received during any part of the trial of
this case, except as you may be hereafter instructed. You shall consider, take into
account and be guided by the following factors, if applicable:
―(a) The circumstances of the crimes of which the defendant was convicted
in the present proceeding and the existence of any special circumstances found to
be true.
―(b) The presence or absence of criminal activity by the defendant, other
than the crimes for which the defendant has been tried in the present proceedings,
(footnote continued on next page)

67
pattern instruction. ― ‗Generally, a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language.‘ [Citation.]‖ (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
CALJIC No. 8.85 simply quotes the factors set forth in section 190.3, and ―we
repeatedly have held that instructions in the language of CALJIC No. 8.85 do not
violate the Eighth and Fourteenth Amendments by failing to delete inapplicable
sentencing factors . . . . [Citations.]‖ (People v. Ramirez (2006) 39 Cal.4th 398,
469; see also People v. Hartsch (2010) 49 Cal.4th 472, 516 [the court is not

(footnote continued from previous page)

which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.
―(c) The presence or absence of any prior felony conviction, other than the
crimes for which the defendant has been tried in the present proceedings.
―(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
―(e) Whether or not the victim was a participant in the defendant‘s
homicidal conduct or consented to the homicidal act.
―(f) Whether or not the offense was committed under circumstances which
the defendant reasonably believed to be a moral justification or extenuation for his
conduct.
―(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person.
―(h) Whether or not at the time of the offenses the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication.
―(i) The age of the defendant at the time of the crime.
―(j) Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor.
―(k) Any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime and any sympathetic or other aspect of
the defendant‘s character or record as a basis for a sentence less than death,
whether or not related to the offense for which he is on trial.‖ (CALJIC No. 8.85.)

68
required to delete inapplicable statutory factors]; People v. Taylor (2009) 47
Cal.4th 850, 899 [same].) Because the instruction is a correct statement of the law
and defendant did not request different language, he has forfeited his claim that the
instruction should have been modified. And because the instruction does not
otherwise violate his constitutional rights, his claim also fails on the merits.
Next, defendant challenges the prosecutor‘s remarks. In his argument at the
penalty phase, the prosecutor stated that section 190.3, factors (e) through (j) did
not apply to this case. Defendant asserts, however, that various statements by the
prosecutor indicated that the absence of evidence of a mitigating factor could be
considered an aggravating circumstance. (See People v. Davenport (1985) 41
Cal.3d 247, 288-290 [it is improper for a prosecutor to argue that the absence of
certain mitigating factors rendered them aggravating factors].) Defendant did not
object to any of the prosecutor‘s statements concerning the mitigating factors.
Accordingly, he has forfeited his claim. (People v. Redd (2010) 48 Cal.4th 691,
749; People v. Clark (1993) 5 Cal.4th 950, 1030 (Clark).)
The claim also fails on the merits. It is permissible for a prosecutor to
observe that there is no evidence of a mitigating factor. (People v. Gurule (2002)
28 Cal.4th 557, 658.) As explained below, ―[a]lthough the prosecutor noted the
absence of certain mitigating factors, he did not expressly or implicitly argue that
the absence of these factors could be considered in aggravation. These statements
were well within the range of proper prosecutorial argument. [Citations.]‖ (Clark,
supra, 5 Cal.4th at p. 1030.)
With respect to section 190.3, factor (h), which addresses the effect of
mental defects and intoxication, the prosecutor stated the factor ―does not apply in
this particular case. . . . [¶] We have no evidence in this case. As a matter of fact,
we have contrary evidence in this case. The doctors testified that he may, in fact,
be an addict, however, it played no part in this particular group of cases. And, in

69
terms of mental disease, mental defect, mental illness, of any nature, the defendant
simply does not have that. As a matter of fact, as Dr. Hall said, the defendant is,
frighteningly enough, a perfectly normal person.‖ The prosecutor‘s statement that
―defendant is, frighteningly enough, a perfectly normal person,‖ did not indicate
that the absence of a mental defect or intoxication could be considered an
aggravating circumstance, particularly in light of the prosecutor‘s repeated
statements that factor (h) was not applicable to the case. Rather, the statement
indicated that ―defendant was less deserving of leniency, rather than more
deserving of death. Argument of this type does not contravene the rule set forth in
Davenport.‖ (Clark, supra, 5 Cal.4th at p. 1031.) We decline defendant‘s
invitation to overrule Clark‘s distinction between statements that focus upon the
absence of mitigating evidence and statements urging that the absence of
mitigating evidence constitutes an aggravating circumstance. Contrary to
defendant, we perceive a difference between an argument that a defendant is less
deserving of leniency and an argument that a defendant is more deserving of
death.
With respect to section 190.3, factor (i), which addresses a defendant‘s age,
the prosecutor stated that it was ―a factor in mitigation. It can‘t be reversed around
and said to be a factor in aggravation.‖ He stated that factor (i) applied when a
defendant committed the crime at a young age, before he or she was socialized or
understood the consequences of his or her actions. He added, ―Obviously age is
not a factor here in that we have a person who is just the opposite. A person who
is older, a person who‘s had the opportunity to see the impact of many, many
crimes, to see the impact upon himself, to see the impact upon his victims, and to
see the impact upon his extended family. Yet, despite all of that, the defendant
chose, chose — as Dr. Baca said, this man really chooses to take the very easy
way through life. The very fun way, to use an odd word when we are discussing

70
this type of crime, through life. But despite that, it‘s not a factor in aggravation.
You can‘t twist it around . . . and use it against him.‖ The prosecutor‘s comments
explained why defendant‘s age was not a mitigating factor; contrary to defendant‘s
contention, the comments did not urge that the absence of evidence that
defendant‘s age was a mitigating factor rendered factor (i) an aggravating factor.25
Finally, defense counsel‘s failure to object to CALJIC No. 8.85 or to the
prosecutor‘s statements did not constitute deficient performance by counsel. As
we have explained, the instruction was an accurate statement of the law, and the
prosecutor‘s comments were permissible. Therefore, counsel was not deficient for
failing to object, and there is no reasonable probability that an objection would
have altered the outcome. (See Strickland, supra, 466 U.S. 668, 689, 694.)

7. Instruction concerning the consideration of aggravating and
mitigating factors
Defendant contends that the jury instructions failed to convey that (1) a
single mitigating factor is a sufficient basis for the jury to conclude that a
defendant should not be sentenced to death, and (2) a sentence of death is not
required despite the absence of any mitigating factors. He asserts the instructions
thereby deprived him of his rights to due process and to be free from the
imposition of cruel and unusual punishment under the Fifth, Eighth, and

25 It is not improper for a prosecutor to urge that a defendant‘s age is an
aggravating factor. ―[W]e have observed that chronological age itself is neither
aggravating nor mitigating, but the word ‗age‘ as used in factor (i) is ‗a metonym
for any age-related matter suggested by the evidence or by common experience or
morality that might reasonably inform the choice of penalty‘ [Citation.]‖ (People
v. Carrington (2009) 47 Cal.4th 145, 201-202.) For example, in Carrington, the
defendant‘s age of 30 years was properly viewed as an aggravating factor, because
her ―age rendered her capable of appreciating the wrongfulness of her conduct.‖
(Ibid.)

71
Fourteenth Amendments to the United States Constitution, and article I, sections 7
and 17 of the California Constitution.
The trial court instructed the jury, pursuant to CALJIC No. 8.88, regarding
the weighing of aggravating and mitigating circumstances. We repeatedly have
rejected the contention that CALJIC No. 8.88 is ―unconstitutional because it fails
to instruct the jury that a single mitigating factor could outweigh multiple
aggravating factors and by itself could justify a verdict of life imprisonment
without the possibility of parole [citation] . . . .‖ (People v. D’Arcy (2010) 48
Cal.4th 257, 304 (D’Arcy).) We also have rejected the contention that the
instruction fails to convey that the jury ―may return a sentence of life
imprisonment without the possibility of parole even in the complete absence of
any mitigating evidence. [Citations.]‖ (People v. Chatman (2006) 38 Cal.4th 344,
410; see People v. Moon (2005) 37 Cal.4th 1, 43.) CALJIC No. 8.88 ―accurately
describes how jurors are to weigh the aggravating and mitigating factors.
[Citation.]‖ (Elliot, supra, 37 Cal.4th at p. 488; see People v. Carter (2003) 30
Cal.4th 1166, 1226.) Defendant identifies no persuasive reason to alter these
established principles.

8. Instruction on the meaning of life without the possibility of parole
Defendant contends the absence of a jury instruction concerning the
meaning of life without the possibility of parole deprived him of his rights to due
process and to be free from the imposition of cruel and unusual punishment under
the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution,
and article I, sections 7 and 17 of the California Constitution.
Defendant acknowledges that we have rejected the argument that ―life in
prison without the possibility of parole‖ must be defined for the jury, but asserts
that we should reconsider our conclusion in light of Simmons v. South Carolina

72
(1994) 512 U.S. 154 (a capital defendant was entitled to inform the sentencing
jury that the alternative of life in prison would be without the possibility of parole)
and Shafer v. South Carolina (2001) 532 U.S 36 (the rule in Simmons applied
when neither the instruction or the argument sufficiently informed jurors that the
capital defendant would not be eligible for parole). ―[W]e have consistently held
that the phrase ‗life without possibility of parole‘ as it appears in CALJIC No. 8.84
adequately informs the jury that a defendant sentenced to life imprisonment
without possibility of parole is ineligible for parole. [Citations.]‖ (People v.
Wallace (2008) 44 Cal.4th 1032, 1091. ―Nothing in Simmons[, supra,] 512 U.S.
154 causes us to reconsider that conclusion.‖ (People v. Verdugo (2010) 50
Cal.4th 263, 303.) In addition, ―[d]efendant‘s reliance upon Shafer[, supra,] 532
U.S. 36, is unavailing. (People v. Harris [(2008)] 43 Cal.4th [1269,] 1317 [In
Shafer, the court explained that ‗the South Carolina instructions were defective
because they failed to inform the jury of the defendant‘s parole eligibility status,‘
whereas the California instructions ‗explicitly informed the jury that there would
be no possibility of parole‘].)‖ (People v. Dykes (2009) 46 Cal.4th 731, 817,
fn. omitted (Dykes).) ―[T]he concept of life in prison with no possibility of parole
is clear. [Citation.] We are not persuaded by empirical claims made outside the
appellate record and untested at trial suggesting the contrary is true.‖ (DePriest,
supra, 42 Cal.4th at p. 58.)

9. The trial court’s decision not to answer the jury’s question
concerning the consequences of a deadlock
Defendant contends that the trial court‘s failure to answer the jury‘s
question concerning what would occur if the jury could not reach a unanimous
verdict at the penalty phase deprived him of his rights to due process and to be free
from the imposition of cruel and unusual punishment under the Fifth, Eighth, and

73
Fourteenth Amendments to the United States Constitution, and article I, sections 7,
15, and 17 of the California Constitution.
Jury deliberations began in the afternoon of November 30, and resumed in
the morning on December 1. During the afternoon session on December 1, the
court informed counsel that the jury had sent the following note: ―We want to
know what happens if we cannot reach a unanimous decision? Judge makes
decision? re-trial/entirely? re-trial/penalty?‖ The trial court asked counsel their
views concerning the appropriate response to the jury‘s inquiry. Defense counsel
stated he had not experienced this issue before, that his concern was that the
questions were irrelevant to the jury‘s decision, and that he did not know what
position to take. The court read a passage from People v. Hines (1997) 15 Cal.4th
997, 1075, which stated that ―an instruction explaining the consequences of a hung
jury ‗would have the potential for unduly confusing and misguiding the jury in
their proper role and function in the penalty determination process.‘ [Citations.]‖
The court concluded, ―That suggests to me that these questions should not be
answered. Defense counsel responded, ―That‘s my feeling. And I hadn‘t read any
cases on the issue.‖ The court returned the written questions with the following
response: ―The Court cannot answer these questions.‖ The jury deliberated until
3:00 p.m. on December 1, resumed deliberations the morning of December 2, and
informed the court at 11:45 a.m. that it had reached a verdict.
Defendant contends the trial court erred by failing to inform the jury of the
consequences of a deadlock. Defendant has waived this claim by agreeing with
the trial court concerning the appropriate response to the jury‘s question. (People
v. Hughes (2002) 27 Cal.4th 287, 402 (Hughes) [―this claim is waived by defense
counsel‘s agreement with the trial court that informing the jury of the
consequences of a deadlock would have been improper‖].) Defendant asserts,
however, that his counsel‘s earlier statement that he did not know what position to

74
take, and his subsequent statement that he had not read any cases addressing the
issue, reflect that counsel did not make a knowing, intelligent, and voluntary
decision to waive defendant‘s right. The authority he cites in support of this
proposition is inapposite, because it involves a defendant‘s waiver of the right to
counsel. (See Godinez v. Moran (1993) 509 U.S. 389, 400; Johnson v. Zerbst
(1938) 304 U.S. 458, 465.) In the circumstances presented here, defendant must
establish ineffective assistance of counsel to avoid the consequences of his
counsel‘s actions.
In any event, the claim also fails on the merits. We repeatedly have held
that a trial court is not required to educate a jury concerning the consequences of a
deadlock. (See Hughes, supra, 27 Cal.4th at p. 402; see also Jones v. United
States (1999) 527 U.S. 373, 383 [the court declined to exercise its supervisory
powers to require in every capital case an instruction concerning the consequences
of a deadlock at the penalty phase].) As we explained in Hughes, ―Especially in a
case like this — in which it was not clear that there actually was any deadlock —
an instruction informing the jury of the consequence of a deadlock ‗would have
diminished the jurors‘ sense of duty to deliberate, and to be open to the ideas of
fellow jurors. The effect of a hung jury is irrelevant to the jury’s deliberation of
any issue before it.‘ [Citation.]‖ (Hughes, supra, at p. 402, italics in original.)
Defendant notes, however, that the questions asked by juries in prior cases
did not articulate retrial of the guilt phase as a possible consequence of a deadlock,
and he contends that jurors‘ belief that such a retrial would occur would have
resulted in improper pressure to reach a consensus regarding the penalty. This
speculative contention does not alter our conclusion. The jury‘s note did not
establish that any juror believed a retrial of the guilt phase would follow a
deadlock at the penalty phase. Rather, the note reflected that one or more jurors
apparently had speculated concerning possible scenarios, including the possibility

75
of a retrial. Presumably, in most cases in which jurors request information about
the consequences of a deadlock, jurors have given some thought to what events
might follow a deadlock. That jurors in the present case articulated various
scenarios does not establish that any juror believed a particular result would follow
a deadlock. Nor did the jurors‘ speculation attenuate the principle that ―informing
the jury of the consequence of a deadlock ‗would have diminished the jurors‘
sense of duty to deliberate, and to be open to the ideas of fellow jurors.‖ (Hughes,
supra, 27 Cal.4th at p. 402.)
Defendants‘ reliance upon Simmons v. South Carolina, supra, 512 U.S.
154, and Morris v. Woodford (9th Cir. 2001) 273 F.3d 826 is misplaced. In
Simmons, the prosecution urged the jury to consider defendant‘s future
dangerousness, and the court refused to inform the jury that defendant was not
eligible for parole. In Morris, the written jury instructions erroneously stated that
if the jury could not decide between death and life without the possibility of
parole, it should return a verdict of life with the possibility of parole. Thereafter,
the court declined to answer the jury‘s question concerning what sentence would
be imposed if the jury could not agree. Thus, the jurors‘ alleged confusion in
Simmons and Morris involved facts or principles that were relevant to the jurors‘
determination of the appropriate penalty. In contrast, the issue of whether retrial
of any aspect of the litigation will occur if the jury cannot reach a verdict is
irrelevant to the jury‘s determination of the appropriate penalty.

10. Effect of our reversal of the kidnapping conviction and vacation of
the kidnapping special circumstance finding upon the penalty
Defendant contends that in the event any of the special circumstances found
by the jury is vacated, upholding the judgment of death will deprive him of his
right to due process, trial by jury, and to be free from the imposition of cruel and
unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

76
the United States Constitution, and article I, sections 7, 16, and 17 of the
California Constitution.
We have concluded that the kidnapping conviction must be reversed and
the kidnapping special circumstance finding must be vacated, due to instructional
error. Three other valid special circumstance findings remain: burglary, robbery,
and sodomy. In addition, the facts the jury found in connection with the
kidnapping conviction — defendant compelled the victim, through force or fear, to
move to the procedure room, and the movement was ―substantial‖ within the
meaning of CALJIC No. 9.50 — could properly be considered by the jury as
circumstances of the burglary, robbery, and sodomy, and of the murder under
section 190.3, factor (a). Because the jury was authorized to give aggravating
weight to these circumstances, regardless of whether the circumstances constituted
kidnapping at the time defendant committed the crimes, our reversal of the
kidnapping conviction and our vacation of the kidnapping special circumstance
finding do not require reversal of the penalty. (See Brown v. Sanders (2006) 546
U.S. 212, 220 [invalidation of a special circumstance finding will not render the
penalty unconstitutional if ―one of the other sentencing factors enables the
sentencer to give aggravating weight to the same facts and circumstances‖];
People v. Lewis (2008) 43 Cal.4th 415, 520.) As in People v. Mungia (2008) 44
Cal.4th 1101, in which we reversed a torture-murder special circumstance finding,
―[t]here is no likelihood that the jury‘s consideration of the mere existence of the
[kidnapping] special circumstance tipped the balance toward death.‖ (Id. at
p. 1139.) Similarly, there is no likelihood that the mere existence of the
kidnapping conviction tipped the balance toward death. Finally, as we explained
in People v. Lewis, supra, at pages 520-522, our finding that the error in the
kidnapping jury instruction was harmless with respect to the penalty does not
violate the right to a jury determination of any fact that increases the penalty.

77
 11. Cumulative prejudice
Defendant asserts that the errors committed at the guilt phase and the
penalty phase, considered together, deprived him of a fair penalty phase hearing.
We have found no error at the penalty phase, and, as noted above, there was no
cumulative prejudicial effect at the guilt phase. Therefore, defendant suffered no
cumulative prejudice from the actual and presumed errors, and was not deprived
of a fair penalty phase hearing.

12. General challenges to California’s death penalty scheme
As defendant acknowledges, we have rejected his general challenges to
California‘s death penalty scheme.
―[T]he California death penalty statute is not impermissibly broad, whether
considered on its face or as interpreted by this court. [Citations.]‖ (Dykes, supra,
46 Cal.4th at p. 813; see also People v. Brady (2010) 50 Cal.4th 547, 590.)
―We further ‗reject the claim that section 190.3, factor (a), on its face or as
interpreted and applied, permits arbitrary and capricious imposition of a sentence
of death.‘ [Citations.]‖ (People v. Lynch (2010) 50 Cal.4th 693, 766 (Lynch).)
―The use of adjectives such as ‗extreme‘ in section 190.3, factors (d) and (g), or
‗substantial‘ in section 190.3, factor (g), do not serve as an improper barrier to the
consideration of mitigating evidence. [Citation.]‖ (People v. Jennings (2010) 50
Cal.4th 616, 690 (Jennings).)
―[T]he death penalty statute does not lack safeguards to avoid arbitrary and
capricious sentencing or deprive defendant of the right to a jury trial, because it
does not require written findings, unanimity as to the truth of aggravating
circumstances, or findings beyond a reasonable doubt that an aggravating
circumstance (other than § 190.3, factor (b) or (c) evidence) has been proved, that
the aggravating factors outweighed the mitigating factors, or that death is the
appropriate sentence. [Citations.] The jury may properly consider a defendant‘s

78
unadjudicated criminal activity. [Citation.] Nor, contrary to defendant‘s
alternative claims, is a preponderance of the evidence standard of proof compelled
for the findings that an aggravating factor exists, that the aggravating factors
outweigh the mitigating factors, and that death is the appropriate sentence, nor is
the trial court required to instruct the jury that there is no burden of proof.
[Citations.]‖ (Lynch, supra, 50 Cal.4th at p. 766.) Because no burden of proof or
persuasion is required during the penalty phase, and the jury was instructed that,
―[t]o return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole,‖ ―no ‗tie-
breaking rule‘ was necessary.‖ (People v. Bennett (2009) 45 Cal.4th 577, 632.)
The decisions in Blakely, supra, 542 U.S. 296, Ring, supra, 536 U.S. 584, and
Apprendi, supra, 530 U.S. 466, do not require otherwise. (D’Arcy, supra, 48
Cal.4th at p. 308 [the court need not instruct that the jury must unanimously find
true an aggravating factor; Blakely, Ring, and Apprendi do not alter this
conclusion]; People v. Mills (2010) 48 Cal.4th 158, 214 [California‘s death
penalty law is not invalid for failing to require unanimous findings of aggravating
factors, nor for permitting consideration of unadjudicated criminal activity;
Blakely, Ring, and Apprendi do not preclude consideration of unadjudicated
criminal activity].)
― ‗The failure to require intercase proportionality does not guarantee
―arbitrary, discriminatory, or disproportionate impositions of the death penalty,‖ or
violate the Fifth, Sixth, Eighth, and Fourteenth Amendments.‘ [Citation.]
Moreover, ‗capital and noncapital defendants are not similarly situated and
therefore may be treated differently without violating constitutional guarantees of
equal protection of the laws or due process of law.‘ [Citation.]‖ (Lynch, supra, 50

79
Cal.4th at p. 767; Jennings, supra, 50 Cal.4th 616, 690 [capital defendants and
noncapital defendants are not similarly situated].)
―We again reject the argument that California‘s death penalty scheme is
contrary to international norms of humanity and decency, and therefore violates
the Eighth and Fourteenth Amendments of the United States Constitution.
[Citation.] ‗International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.‘
[Citation.] Because we conclude that defendant‘s sentence was rendered in
accordance with those requirements, we need not consider whether alleged
violations of such requirements also would violate international law. [Citations.]
We also reject the argument that the use of capital punishment ‗as regular
punishment‘ violates international norms of humanity and decency and hence
violates the Eighth Amendment of the United States Constitution. ‗California
does not employ capital punishment in such a manner. The death penalty is
available only for the crime of first degree murder, and only when a special
circumstance allegation is found true; furthermore, administration of the penalty is
governed by constitutional and statutory provisions different from those applying
to ―regular punishment‖ for felonies. [Citations.]‘ [Citation.]‖ (Jennings, supra,
50 Cal.4th at pp. 690-691.)

80
 III. CONCLUSION
We reverse the judgment of conviction for kidnapping, vacate the findings
related to kidnapping, and otherwise affirm the judgment.

CANTIL-SAKAUYE, C.J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CHANEY, J.*

____________________
* Associate Justice of the Court of Appeal, Second Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

81
 CONCURRING AND DISSENTING OPINION BY KENNARD, J.

A jury convicted defendant Gabriel Castaneda of first degree murder for
killing a female employee who was working alone at a small medical clinic that had
not yet opened for the day. The jury also made special circumstance findings that
the killing occurred during the commission of sodomy, kidnapping, burglary, and
robbery, and it returned a verdict of death.
Based on instructional error, the majority reverses the kidnapping conviction
and vacates the kidnapping special-circumstance finding. Nevertheless, the
majority points out, the judgment can be affirmed in its entirety because three
special circumstance findings remain and because the facts underlying the
kidnapping special circumstance were otherwise admissible at the penalty phase.
(Maj. opn., ante, at p. 77.) I agree.
Unlike the majority, however, I conclude that the trial court erred in failing
to instruct the jury on theft as a lesser offense necessarily included in the offense of
robbery. I further conclude that the error did not prejudice defendant.
Accordingly, I concur fully in the judgment.
I
When the victim‘s body was found in the clinic, which defendant had
visited previously while the victim was working there, missing were her watch,
ring, purse, and wallet. The taking of those items led to the robbery charge and the
special circumstance allegation that the murder was committed during a robbery.

1
 The evidence raised a question whether defendant formed his intent to steal
before he completed his acts of force and intimidation — which included binding
the victim, sodomizing her, and killing her by stabbing her with a screwdriver —
or after he completed those acts. In the latter situation, defendant could be guilty
only of theft, a lesser offense necessarily included within the crime of robbery.
(People v. DePriest (2007) 42 Cal.4th 1, 50 (DePriest).) Defendant did not
request an instruction on the lesser offense of theft, and the trial court gave no
such instruction. The court should have done so.
The majority correctly explains the legal principles that apply here:
― ‗ ―Theft is a lesser included offense of robbery, which includes the additional
element of force or fear.‖ [Citation.] If intent to steal arose only after the victim
was assaulted, the robbery element of stealing by force or fear is absent.
[Citations.]‘ (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056; see [People
v.] Yeoman [(2003)] 31 Cal.4th [93,] 128-129 [to constitute robbery, intent to steal
must be formed before or during the application of force].) ‗Nevertheless, ―the
existence of ‗any evidence, no matter how weak‘ will not justify instructions on a
lesser included offense . . . .‖ [Citation.]‘ (DePriest, supra, 42 Cal.4th at p. 50.)
‗Instructions on after-acquired intent and theft as a lesser included offense of
robbery are unwarranted absent ―substantial evidence‖ that the defendant first
formed the intent to take the victim‘s property after applying force. [Citation.]‘
(People v. Zamudio (2008) 43 Cal.4th 327, 360.)‖ (Maj. opn., ante, at p. 44.)
I disagree, however, with the majority‘s conclusion that here ―there is no
substantial evidence that defendant formed the intent to steal only after he ceased
applying force to the victim,‖ and therefore that ―the trial court was not required to
give an instruction concerning grand theft.‖ (Maj. opn., ante, at p. 46.)
Substantial evidence of after-formed intent to steal need not be testimony of
the defendant (as it was in People v. Turner (1990) 50 Cal.3d 668, 690), or similar
2
direct evidence. As shown by our decision in People v. Ledesma (2006) 39 Cal.4th
641, 715, the substantial evidence needed to warrant a jury instruction on theft can
be evidence of some motive for attacking the victim that is unrelated to robbery,
thus supporting an inference that the intent to steal arose after the attack was
completed.
Here, the evidence shows that sodomy — a preferred sexual practice of
defendant‘s — was a motive for defendant‘s use of force on the victim. (Maj. opn.,
ante, at pp. 11, 32–33.) This evidence supports the inference that stealing the
victim‘s ring, watch, wallet, and other property was an afterthought that arose
when the assault on the victim was complete. Adding strength to this inference is
evidence suggesting defendant‘s lack of interest in the property taken. He never
used the victim‘s credit cards, and as for her ring and watch, he showed them to his
cousin, said he was going to throw them away, and then, at the cousin‘s request,
gave them to her instead. (Id. at pp. 35, 44–45.)
In concluding that defendant formed an intent to steal before (or during) his
use of force on the victim, the majority points to physical evidence, such as the
victim‘s book lying on the floor in the office where the victim kept her purse,
suggesting that she and defendant struggled there, and the visibility of the victim‘s
ring and watch while defendant was sodomizing her. (Maj. opn., ante, at p. 35.)
That defendant and the victim struggled in the office where the victim kept her
purse proves nothing regarding defendant‘s motive, and it is speculative to infer
that because the victim‘s ring and watch were visible to defendant as he
sodomized her, it was during the assault that he formed the intent to steal. The
majority also infers defendant‘s preexisting intent to steal from his presumed need
for money due to his drug addiction. (Ibid.) Again, the majority‘s reasoning is
mere speculation. As I noted earlier, defendant did not use the victim‘s credit cards,
and he gave away the victim‘s ring and watch.
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 The weak evidence of a preexisting intent to steal distinguishes this case
from People v. Gray (2005) 37 Cal.4th 168, on which the majority relies. (See
maj. opn., ante, at p. 45.) Gray involved a sexual assault, robbery, and murder in
the victim‘s mobile home. (Gray, supra, at pp. 180–181.) Two days earlier, the
defendant in Gray had burglarized five other mobile homes solely for the purpose
of stealing. (Id. at pp. 178–179.) That prior history strongly implied that when the
defendant broke into the victim‘s home he likewise had an intent to steal. In
contrast, here the evidence of a preexisting intent to steal is quite weak.
In summary, evidence that defendant here had a motive for the assault other
than stealing, combined with evidence that defendant lacked interest in the property
taken, constitutes ―substantial evidence‖ that his intent to steal arose after the
assault, thus requiring the trial court, on its own initiative, to instruct the jury
regarding theft as a lesser offense necessarily included within the crime of robbery.
(People v. Zamudio, supra, 43 Cal.4th at p. 360.) In not doing so, the trial court
erred. I now turn to the question of prejudice.
II
A trial court‘s failure to instruct the jury on a lesser offense that is
necessarily included in the greater offense charged is harmless if ― ‗the factual
question posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions.‘ ‖ (People v. Turner, supra, 50
Cal.3d at p. 690.) Here, the trial court gave the jury a standard instruction on the
special circumstance of murder during the commission of robbery, with language
requiring the jury to find that the murder was committed ―in order to carry out or
advance‖ the robbery. The jury found that special circumstance allegation to be
true, thereby necessarily concluding that defendant acted with an independent intent
to rob the victim. Hence, the jury resolved adversely to defendant the factual
question posed by the omitted instruction on theft as a lesser included offense of
4
robbery, and the trial court‘s error in omitting the latter instruction was harmless.
(See People v. Sakarias (2000) 22 Cal.4th 596, 621.)
Accordingly, I concur in the majority‘s affirmance of the judgment.

KENNARD, J.

5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Castaneda
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S085348
Date Filed: June 30, 2011
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Mary E. Fuller

__________________________________________________________________________________

Counsel:

John L. Staley, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Holly Wilkens and Marvin E. Mizell,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Staley
11770 Bernardo Plaza Court, Suite 305
San Diego, CA 92108
(858) 613-1047

Marvin E. Mizell
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3040