Filed 11/10/11



Plaintiff and Respondent,



Los Angeles County


Super. Ct. No. KA 032117

Defendant and Appellant.

A jury convicted defendant Ronald Bruce Mendoza of first degree murder

(Pen. Code, ? 187, subd. (a)),1 and found true the allegation that he personally

used a firearm in commission of the murder (? 12022.5, subd. (a)). The jury also

found true the three special-circumstance allegations that defendant intentionally

killed a police officer (? 190.2, subd. (a)(7)), that he committed murder for the

purpose of avoiding a lawful arrest (? 190.2, subd. (a)(5)), and that he

intentionally killed the victim by means of lying in wait (? 190.2, subd. (a)(15)).

Thereafter the jury returned a verdict of death. At the sentencing hearing, the trial

court struck the lying-in-wait special circumstance and then entered a judgment of

death. Appeal to this court is automatic. (? 1239, subd. (b).)


All further statutory references are to the Penal Code unless otherwise



Because the trial court had no authority to strike a special circumstance

found by the jury, we reinstate the lying-in-wait special circumstance. As so

modified, the judgment of death is affirmed.


A. The Guilt Phase

At approximately 1:30 a.m. on May 11, 1996, defendant shot Pomona

Police Officer Daniel Tim Fraembs in the face and killed him. The evidence

included the testimony of an eyewitness to the shooting, defendant?s pager found

at the crime scene, testimonial and physical evidence linking defendant to the

purchase of the murder weapon and ammunition, and telephone conversations

between defendant and his mother, tape-recorded with court approval.

1. The Prosecution Case

Defendant, also known as ?Boxer,? was a member of the Happy Town

street gang. In November 1995, defendant was released on parole from a

California Youth Authority facility (CYA facility; now Div. of Juvenile Facilities).

As two of the conditions of parole, he was not to possess any deadly weapon and

was not to knowingly associate with gang members. Defendant was informed that

violation of a parole condition could result in his return to a CYA facility, where

he would face 575 days, plus an additional one year in custody for possession of a

weapon. Defendant signed a form stating he understood the parole conditions.

Testimony from Jason Meyers and Dean Coleman established that about

two weeks before Officer Fraembs?s murder, Meyers drove defendant to

Coleman?s residence, where defendant purchased a Haskell .45-caliber handgun

from Coleman for $150 or $155. Meyers agreed to buy bullets for the gun,

because defendant did not have the required California driver?s license or

identification card to do so. They went to a Big 5 Sporting Goods store, where


Meyers used defendant?s money to purchase a green and yellow box of Remington

.45-caliber bullets.

Johanna Flores was 19 years old at the time of the 1997 trial. Her

nickname was ?Goon,? but she did not belong to any gang. Flores had been in a

romantic relationship with defendant and was with him when he shot Officer

Fraembs. She testified as the key witness against defendant regarding the events of

the night leading up to the murder.

Flores testified that on May 10, 1996, after her work shift ended at 11:00

p.m., she went with Chantal Cesena to the Pomona home of a Happy Town gang

member named ?Tank,? where Flores saw defendant and another gang member

named Jasper. Defendant wore black jeans, a white shirt, and a black bomber-

style jacket with orange lining, small pockets, and a front zipper. Defendant,

Flores, Jasper, and Chantal Cesena sat talking together for a while. At some point,

Chantal Cesena received a call from her relative, Joseph ?Sparky? Cesena, asking

her to pick him up.2 Chantal declined, saying she had to do something else.

At a later point, defendant and Flores argued over a page defendant

received from Brandy Valore, the mother of his child. Flores punched defendant

on his left side, hitting a gun tucked into his waistband. Flores saw the gun when

defendant removed it from his waistband to check it. She had seen defendant with

this gun before; he said it was a .45-caliber gun.

After things calmed down between defendant and Flores, they both spoke

with Sparky by telephone. Defendant and Sparky agreed to meet by the railroad

tracks, and Flores decided to go along. When they left Tank?s house, defendant

was carrying his gun and his pager.


Henceforth we will refer to the two Cesenas by the names used at trial:

Chantal and Sparky.


On their way to the railroad tracks, defendant and Flores encountered a man

and two women (Jason Meyers, Cherie Hernandez, and Elva Arambula) who were

walking from the opposite direction. When one of the women (Hernandez) gave

defendant a cigarette and lit it for him, Flores got mad and cursed and slapped

defendant.3 The two groups separated, and defendant and Flores continued toward

the railroad tracks. As they neared the tracks, Sparky appeared from a small

pathway through some bushes. Sparky wore gray khaki pants, a white shirt, and a

gray and black striped sweater. He had a knife.

As the three walked back to Tank?s house, a bright light turned on behind

them. Defendant looked over his left shoulder and said, ?Oh, shit, the jura.?

?Jura? meant ?cops.? A police car stopped behind them, and Officer Fraembs

exited the vehicle. Defendant said, ?Oh, shit. I got the gun.? Flores told

defendant to run, because she did not want him to ?get in trouble? or ?do anything

stupid.? Sparky also told him to run. Defendant stayed put.

Officer Fraembs asked, ?How are you guys doing tonight?? Flores

described Fraembs as ?real nice? and not like other police officers who were mean

or sarcastic. She thought Fraembs might have stopped them ?for curfew check,

nothing major.? Defendant responded to Fraembs?s inquiry with ?an attitude,?

saying something like, ?What the hell are you stopping us for? or ?What are you

stopping us for.? Defendant was being ?rude? and ?a jerk.? At that point,

Fraembs told defendant and Flores to ?have a seat right there,? indicating the curb.


Flores did not know the names of these individuals, but Meyers and

Arambula also testified about the encounter. Arambula further testified that, after
her preliminary hearing testimony, she received what she perceived to be a threat,
although defendant was not the person who made the threat.


He called Sparky, who was wearing a knife sheath and was nearest to him, over to

the patrol car. Sparky put his hands on the hood, and Fraembs stood behind him.

As Officer Fraembs started patting down Sparky, defendant slowly moved

behind Flores and draped his left arm over her shoulder while leaving his right

hand free. Defendant was standing very close behind Flores, with his chest

against her back, and leaning forward as they moved toward the street. He slowly

pushed her forward, forcing her to step off the curb into the street. Flores felt

defendant slide his hand down between himself and the small of her back as he

continued to move her toward Fraembs, who was still patting down Sparky. When

they got within six or seven feet of Fraembs, defendant pushed Flores aside.

At that point, Flores turned back to look at defendant and saw him with his

arms stretched out and both hands holding the gun. He took another step or two

toward Officer Fraembs, and pointed the gun at the officer?s upper body from a

distance of about two and a half feet. Defendant fired once, shooting Fraembs in

the face.

Immediately afterward, defendant turned the gun on Flores and asked, ?Are

you going to say anything?? Flores replied, ?No, I didn?t see nothing, I didn?t hear

nothing, I don?t know nothing.? Flores took defendant?s threat seriously, and

when he repeated his question, she repeated she didn?t hear, see, or know


Defendant told Flores to run, then he took off running. Flores starting

running behind defendant, but soon lost sight of him. Defendant did not look back

at Flores and did not wait for her to catch up to him. Sparky had already run

away, back toward the bushes from which he had earlier emerged.

As Flores ran, she began hearing sirens and ran faster. She reached her

home, but did not sleep. She did not call 911 or the police to report the shooting,


because she was afraid defendant and his gang would do something to her. At

sunrise, Flores told her sister what had happened.

Early in the morning of May 11, 1996, Flores called defendant at his home.

His brother Angel, who belonged to the Happy Town gang and was known as

?Bandit,? answered. Angel said something threatening to Flores, then handed the

phone to defendant. When Flores asked how defendant was, he replied, ?I?m fine.

I?m a killer.? Defendant said he didn?t give a fuck, and ?It?s just another day in

the hood.? Defendant asked Flores about his pager and told her, ?I think I lost it

over there.?

Later that day or the following day, Flores told her parents what happened.

Her father spoke with their family priest, Father Charles Gard, who offered to

speak with Flores. On May 15, 1996, Flores told Gard about the shooting and

defendant?s involvement. She was ?very upset? and ?very distraught,? yet ?very

confident in what she was saying.?4 Gard persuaded Flores to talk to the police.

Two homicide detectives interviewed Flores at Father Gard?s church. At

first Flores did not tell the detectives about Chantal and Jasper being at Tank?s

house before the shooting. Chantal was Flores?s good friend and Flores did not

want anything to happen to her. Flores was also afraid that Jasper might do

?something? if she said he was there. But even though Flores had been threatened

by both defendant and his brother, she ultimately decided to testify because she

believed that what defendant did was wrong, and that he had the chance to run

away but did not do so. At Flores?s request, however, the Pomona Police

Department relocated her and her family.


Flores spoke to Father Gard in confidence because she feared retaliation.

She eventually gave him permission to testify regarding her statements.


Evidence at the crime scene corroborated Flores?s testimony and

statements. Officer Fraembs was found shot in the face, with his gun secured in

its snapped-shut holster and his baton still attached to his belt. A spent shell

casing was on the ground about 12 feet from the body, and an expended bullet lay

in the grass about 40 to 50 feet away. A senior criminalist with the sheriff?s

department testified that the casing was made by Remington Peters and designed

for a .45-caliber semiautomatic weapon, and was consistent with the expended

bullet. The criminalist?s examination of these items indicated that the projectile

could have been fired from a Haskell .45-caliber semiautomatic weapon.

Additionally, defendant?s pager was found at the scene.

In a search of defendant?s residence, police found a green and yellow

Remington .45-caliber ammunition box bearing a Big 5 Sporting Goods price tag

in the bedroom occupied by defendant?s mother and Harry Lukens. The box

contained one .32-caliber bullet and an otherwise empty plastic ammunition tray,

on which defendant?s left thumbprint was found. A black nylon camera lens case

containing 17 Remington .45-caliber bullets was recovered from a trash can in the

enclosed back yard. Lukens identified the lens case as his, but not the bullets. He

had not seen the case for a year and did not know how it got into the trash can.

Defendant made incriminating statements after the murder. He initially

sold the murder weapon to Joseph Silva for $100, telling him, ?Hey, did you know

I killed a cop?? Defendant later decided to get the gun back and told Silva, in a

police-recorded telephone conversation, ?I?m gonna have somebody come and

pick it up from you man . . . . I can?t have that in Pomona.? Around that time, a

Happy Town gang member named ?Casper? warned Silva that he and his entire

family would be killed if Silva were to testify that defendant admitted shooting a

police officer. Defendant?s brother Angel retrieved the gun from Silva.


While defendant was in custody, the court approved the recording of his

telephone conversations with his mother, Lola Delgado. On May 22, 1996,

defendant told his mother to burn a certain jacket. Although the statements in that

conversation were not entirely clear, defendant apparently was referring to the

jacket he wore the night of the murder, a black and orange jacket with tiny

pockets. On May 24, 1996, defendant told his mother he wanted ?Goon? (Flores)

to be told she ?better realize what she?s doing.? After complaining that Goon was

?suppose to be gang? but ?now she?s fucking crumbling down,? defendant told his

mother, ?we gotta do something? because ?if she?s a witness, I?m gonna be gone.?

Defendant also warned that ?as far as she?s willing to go, the police ain?t going to

protect her.?

2. The Defense Case

Rupert Bascomb, a private security guard, testified he was on duty at a

company at the time and near the scene of the murder. He observed a police car

cruise by ?real slow? and then drive out of sight. Shortly thereafter, Bascomb

heard a gunshot and then a woman?s voice say, ?Let?s get out of here? or ?Let?s

move from here.? He thought he saw two possibly male figures wearing dark

clothing run toward an incinerator behind a building. One had something in his


The defense sought to undermine Johanna Flores?s credibility and to

establish her bias against defendant. It also argued that if the jury believed

defendant was the shooter, it should find he did not act with premeditation.

Finally, the defense contended that Officer Fraembs did not act lawfully when he

stopped and detained defendant, Sparky, and Flores.


B. The Penalty Phase

1. The Prosecution Case

The prosecution presented evidence that on July 30, 1994, Ryan Schultz

and his girlfriend drove to a house in Pomona to smoke marijuana and ?get high?

with some friends. While Schultz was inside the house, more than 10 gunshots

were fired outside. Schultz went outside and saw that his brand new 1994 Ford

Thunderbird had been ?shot up.? Three or four individuals, including defendant,

were standing by Schultz?s car, and defendant was holding an M-1 military rifle.

Schultz ran back into the house, followed by defendant and his companions.

Defendant used his rifle to hit Schultz in the face and on the side of the head.

Schultz fell to the ground and was beaten. Afterward, defendant ?basically? told

Schultz to ?get the fuck out the house before we kill you.? Schultz suffered

injuries to his head, face, and arms; his jewelry and money were taken.

The prosecution also presented victim impact testimony from Officer

Fraembs?s adoptive mother and sister, and from two police officers who had

worked and formed close friendships with him.

2. The Defense Case

Defendant?s aunt testified regarding defendant?s family and his care by his

grandparents while his mother was in prison. His aunt was ?very surprised? to

learn of his involvement in the killing of a police officer, and asked the jury to

consider defendant?s daughter and family.

Brandy Valore, the mother of defendant?s baby daughter, testified she was

first attracted to defendant because he had ?good manners? and was ?real polite,

very intelligent.? Valore said defendant loved his daughter and asked the jury to

spare his life for his daughter?s sake.



A. Sufficiency of Premeditated and Deliberate Murder Evidence

Defendant contends the evidence was insufficient to sustain his conviction

of premeditated and deliberate first degree murder. This claim is without merit for

the reasons below.

In assessing the sufficiency of the evidence supporting a jury?s finding of

premeditated and deliberate murder, a reviewing court considers the entire record

in the light most favorable to the judgment below to determine whether it contains

substantial evidence ? that is, evidence which is reasonable, credible, and of solid

value ? from which a rational trier of fact could find the defendant guilty beyond

a reasonable doubt. (People v. Burney (2009) 47 Cal.4th 203, 253; People v.

Perez (1992) 2 Cal.4th 1117, 1124.) When the circumstances reasonably justify

the jury?s findings, a reviewing court?s opinion that the circumstances might also

be reasonably reconciled with contrary findings does not warrant reversal of the

judgment. (Ibid.)

? ?A verdict of deliberate and premeditated first degree murder requires

more than a showing of intent to kill. [Citation.] ?Deliberation? refers to careful

weighing of considerations in forming a course of action; ?premeditation? means

thought over in advance. [Citations.]? (People v. Koontz (2002) 27 Cal.4th 1041,

1080.) ? ?Premeditation and deliberation can occur in a brief interval. ?The test is

not time, but reflection. ?Thoughts may follow each other with great rapidity and

cold, calculated judgment may be arrived at quickly.? ? ? [Citation.]? (People v.

Sanchez (2001) 26 Cal.4th 834, 849; see People v. Harris (2008) 43 Cal.4th 1269,

1286-1287.)? (People v. Solomon (2010) 49 Cal.4th 792, 812.)

In People v. Anderson (1968) 70 Cal.2d 15, we identified three types of

evidence ? evidence of planning activity, preexisting motive, and manner of


killing ? that assist in reviewing the sufficiency of the evidence supporting

findings of premeditation and deliberation. (People v. Solomon, supra, 49 Cal.4th

at p. 812.) We have made clear, however, that ? ?Anderson did not purport to

establish an exhaustive list that would exclude all other types and combinations of

evidence that could support a finding of premeditation and deliberation.?

[Citations.]? (Ibid.) Using Anderson as a guide, we turn to the instant record.

1. Planning Activity

Defendant contends there was no evidence of a prior plan to kill or even

meet Officer Fraembs, emphasizing it was Fraembs who initiated the early

morning encounter. Defendant also points to Flores?s testimony that he was

nervous after shooting the officer and acted like he did not know what he had just

done; this, he claims, did not suggest he killed as the result of ?preexisting

reflection? rather than ?mere unconsidered or rash impulse.? (People v. Perez,

supra, 2 Cal.4th at p. 1125.) We are not convinced.

In People v. Brady (2010) 50 Cal.4th 547, the defendant shot a police

officer only a few minutes after the officer first shined his patrol vehicle?s

spotlight on the defendant?s car. In rejecting the argument that evidence of

extensive planning was lacking, we found that a rational trier of fact could have

concluded that the defendant, knowing he illegally possessed a firearm, rapidly

and coldly formed the idea to use his firearm before the officer became aware of

its existence. (Id. at pp. 563-564; People v. Solomon, supra, 49 Cal.4th at p. 812

[cold, calculated judgment may result from thoughts occurring in rapid


Here, as in People v. Brady, the record contains substantial evidence that

the killing did not result from an unconsidered or rash impulse. Although

defendant did not initiate the contact with Officer Fraembs, Flores?s testimony


amply supported the inference that defendant devised a plan to kill Fraembs once

the officer indicated he would conduct a weapons search. As Fraembs began his

patdown of Sparky, defendant acted as if he were complying with Fraembs?s

direction to sit down on the curb. By using Flores as a shield and carefully

controlling her movement, defendant was able to approach Fraembs without

attracting attention and to maneuver himself to a position of advantage over the

unsuspecting officer. Once defendant got within six or seven feet of the officer, he

was able to draw his gun while still screened by Flores. Defendant then pushed

her aside and quickly stepped even closer to Fraembs. He took aim with both

arms extended and shot the officer in the face. Defendant?s plan proved

successful, as Fraembs was taken utterly by surprise and had no opportunity to

reach for his own weapons.

2. Preexisting Motive

Defendant claims the prosecution failed to show a motive consistent with

planning and deliberation, because the evidence was insufficient to prove he killed

Officer Fraembs in order to avoid arrest and parole revocation. We disagree.

Although defendant was never heard to say he killed to avoid arrest and

parole revocation, ample circumstantial evidence supported this point. Defendant

was on parole and subject to parole conditions that he not possess a weapon and

not knowingly associate with gang members. Having signed a form

acknowledging the terms of his parole, defendant knew that a violation could

result in his being returned to a correctional institution for 575 days, plus a

possible additional year for the actual possession of a weapon.

The evidence of defendant?s parole conditions provided context to his

murderous action. A month or two before the shooting, defendant told Flores he

was on parole and ?didn?t want to go back? or ?couldn?t go back? to jail. More


critically, on the night of the murder, defendant told Sparky to ?hurry up? and

meet him by the railroad tracks ?because I?m strapped,? meaning defendant was

carrying a gun, and ?I don?t want to get busted.? When Officer Fraembs pulled up

behind defendant, Sparky, and Flores, defendant said, ?Oh, shit, the jura [cops]?

and ?Oh, shit. I got the gun.? Both Sparky and Flores told defendant to run, but

he did not do so. Instead, defendant was ?rude? and acted like a ?jerk? in

challenging Fraembs. Fraembs responded by conducting a weapons search,

presumably for officer safety reasons.

As the prosecution told the jury during closing argument, it was reasonable

to infer from this evidence that once Officer Fraembs started to pat down Sparky,

defendant figured his turn would be next. Given the evidence of Fraembs?s

actions and defendant?s knowledge that his gun possession violated his parole

conditions, a rational jury could conclude that defendant?s motive for killing the

officer was to avoid arrest and a resulting return to custody. (See, e.g., People v.

Vorise (1999) 72 Cal.App.4th 312, 318-319, 322 [rational jury could conclude that

defendant shot victim to avoid lawful arrest, where evidence showed defendant

drew his weapon and fired after hearing victim?s wife say she was going to call


3. Manner of Killing

Defendant concedes that a single shot to the head might support the

inference of a deliberate intent to kill. We agree. (E.g., People v. Caro (1988)

46 Cal.3d 1035, 1050 [?a close-range gunshot to the face is arguably sufficiently

?particular and exacting? to permit an inference that defendant was acting

according to a preconceived design?].) Defendant argues, however, that ?there are

absolutely no facts to support planning activity? on his part. We could not

disagree more.


None of the evidence suggested that defendant fired his weapon in a rash or

panicked reaction to Officer Fraembs?s appearance on the scene; indeed, all the

evidence pointed to the contrary. Although defendant was startled when Fraembs

first pulled up, he refused to flee and instead opted to confront the officer. When

Fraembs indicated he would conduct a weapons search, defendant reacted in a

cool and focused manner: he contrived to act as if he were following Fraembs?s

instruction to take a seat on the curb, but in actuality he formed a plan to approach

and shoot Fraembs while the officer was distracted with Sparky. Because the

manner of killing reflected stealth and precision, a rational jury could conclude

that a preconceived design was behind the killing. (See People v. Halvorsen

(2007) 42 Cal.4th 379, 422 [victims shot in the head or neck from within a few

feet]; People v. Marks (2003) 31 Cal.4th 197, 232 [noting the calm, cool, and

focused manner of the subject shootings].)

In sum, the evidence of planning, motive, and manner of killing was

compelling and amply supported a finding of premeditation and deliberation.

B. Sufficiency of Lying-in-wait Evidence

Following presentation of the prosecution?s case-in-chief, defendant moved

for a judgment of acquittal. (? 1118.1.) As relevant here, defendant argued the

evidence was insufficient to support the charge of first degree murder by means of

lying in wait and the lying-in-wait special-circumstance allegation, primarily

because it did not show a substantial period of watching and waiting for an

opportune time to act. The trial court denied this motion. Subsequently,

defendant objected to the giving of instructions on lying-in-wait first degree

murder (CALJIC No. 8.25) and on the lying-in-wait special circumstance

(CALJIC No. 8.81.15). He also requested that the court, pursuant to section 1385,


strike the allegation or disallow prosecution argument on these theories. The court

overruled the objection and denied the request.

After the jury rendered its guilt and death verdicts, defendant moved for a

new trial and for modification of the verdict or reduction of the penalty. As

relevant here, he reiterated his contentions concerning the lying-in-wait evidence.

The trial court denied defendant?s motions, but agreed the evidence of waiting and

watching was insubstantial as a matter of law. Relying specifically on section

1385, the court struck the lying-in-wait special circumstance.5

On appeal, both defendant and the People have complaints on this matter.

Defendant asserts the reading of jury instructions on lying-in-wait first degree

murder and the lying-in-wait special circumstance was error and violated his state

and federal constitutional rights to due process and reliable guilt and penalty

determinations. He further argues that the first degree murder conviction cannot

be sustained on a lying-in-wait theory, and that the lying-in-wait special

circumstance should remain stricken. Conversely, the People seek reinstatement

of the lying-in-wait special circumstance, contending it was supported by

sufficient evidence and the trial court lacked the authority to strike it. We address

defendant?s arguments first.

1. Requirements of Lying in Wait

The principles governing our analysis are settled. ? ?The requirements of

lying in wait for first degree murder under Penal Code section 189 are ?slightly

different? from the lying-in-wait special circumstance under Penal Code section


The trial court used the terms ?striking? and ?dismissing? interchangeably

to describe its ruling on the lying-in-wait special circumstance. For purposes of
our discussion, we discern no difference between the two terms and shall refer to
the court?s action as ?striking? the special circumstance.


190.2, subdivision (a)(15). [Citation.] . . . We focus on the special circumstance

because it contains the more stringent requirements. [Citation.] If, as we find, the

evidence supports the special circumstance, it necessarily supports the theory of

first degree murder. [?] The lying-in-wait special circumstance requires ?an

intentional murder, committed under circumstances which include (1)

concealment of purpose, (2) a substantial period of watching and waiting for an

opportune time to act, and (3) immediately thereafter, a surprise attack on an

unsuspecting victim from a position of advantage . . . .? [Citations.]? ? (People v.

Moon (2005) 37 Cal.4th 1, 22.)

We have explained the elements of the lying-in-wait special circumstance

as follows. ? ? ?The element of concealment is satisfied by a showing ? ?that a

defendant?s true intent and purpose were concealed by his actions or conduct. It is

not required that he be literally concealed from view before he attacks the

victim.? ? ? [Citation.]? ? (People v. Moon, supra, 37 Cal.4th at p. 22.) As for the

watching and waiting element, the purpose of this requirement ?is to distinguish

those cases in which a defendant acts insidiously from those in which he acts out

of rash impulse. [Citation.] This period need not continue for any particular

length ? ?of time provided that its duration is such as to show a state of mind

equivalent to premeditation or deliberation.? ? [Citation.]? (People v. Stevens

(2007) 41 Cal.4th 182, 202, fn. omitted.)6 ?The factors of concealing murderous


In People v. Stevens, supra, 41 Cal.4th 182, we made clear that, although

the first degree murder formulation refers to ?by means of? lying in wait and the
pre-2000 definition of the special circumstance referred to ?while? lying in wait,
such difference did not change ?the principle that for a murder conviction and for
a special circumstance finding the lying in wait need not continue for any
particular period of time provided that its duration is such as to show a state of
mind equivalent to premeditation or deliberation.? (Id. at p. 202, fn. 11.)


intent, and striking from a position of advantage and surprise, ?are the hallmark of

a murder by lying in wait.? [Citation.]? (Stevens, at p. 202.)

Defendant first claims the evidence was insufficient to prove a ?substantial?

period of watching and waiting for a favorable or opportune time to act, because

the entire encounter was ?fleeting? and it was ?only a matter of seconds? until the

shooting occurred.

As defendant acknowledges, we have never fixed a minimum time period

for this requirement. Indeed, ? ?[t]he precise period of time is . . . not critical,? ? so

long as the period of watchful waiting is ? ?substantial.? ? (People v. Moon, supra,

37 Cal.4th at p. 23 [?a few minutes can suffice?]; see People v. Edwards (1991)

54 Cal.3d 787, 825-826 [wait was ?a matter of minutes?].)

Here, it may be that only a few minutes elapsed between the time Officer

Fraembs pulled up in his car and the time of the shooting. Nonetheless, a rational

jury could find that defendant, who was carrying a gun in knowing violation of his

parole conditions, decided at or near the outset of the encounter that he would kill

the officer rather than face a certain return to custody. As the trial testimony

reflected, when Fraembs drove up, defendant ignored the suggestions of both

Flores and Sparky to simply flee the scene. At the point Fraembs exited his car to

question them, defendant rudely challenged the officer, but did not panic or

immediately reach for his gun and shoot. Instead, as Fraembs began a patsearch of

Sparky after directing defendant and Flores to sit on the curb, defendant positioned

himself behind Flores so that his right arm was hidden from the officer?s view. He

then controlled her movements in order to approach the officer without attracting

attention. Once they were close enough that defendant could not miss hitting

Fraembs, he pushed Flores aside, drew his weapon, and stepped even closer to the

officer before firing. On this record, a rational jury could conclude that defendant

did not react impulsively to Fraembs?s appearance at the scene, but that he


watched Fraembs for a substantial period as he not only waited for, but

affirmatively engineered, the opportune moment to launch a surprise attack.7

Defendant next contends there was insufficient evidence establishing the

other lying-in-wait requirements of concealment of purpose and a surprise attack

on an unsuspecting victim from a position of advantage. We disagree. Although

Officer Fraembs was certainly aware of defendant?s physical presence, the

evidence reflected that defendant managed to conceal his murderous purpose so

well that he took the officer completely by surprise when he fired the single deadly

shot at close range. From this evidence, a rational jury could infer that defendant

did not kill out of rash impulse, but rather in a purposeful manner that required

stealth and maneuvering to gain a position of advantage over the unsuspecting

officer. (See People v. Russell (2010) 50 Cal.4th 1228, 1245 [defendant ?shot at

the officers from a position of advantage before the officers had time to even draw

their weapons?]; People v. Moon, supra, 37 Cal.4th at pp. 22-23; see also People

v. Stevens, supra, 41 Cal.4th at p. 203 [substantial evidence of premeditation and

deliberation dispels inference that killing resulted from a rash impulse].)8


Flores told the police in a pretrial interview that defendant had ?panicked?

when Officer Fraembs stopped the three. At trial, she clarified that defendant
appeared panicked when he first saw the light from the police car, but then moved
slowly and deliberately as described above. After shooting Fraembs, however,
defendant appeared scared he would be caught.


Defendant claims that Officer Fraembs was not unsuspecting and not

attacked from a position of advantage because Fraembs knew he was in a hostile
environment and took protective action by conducting a patsearch. We disagree.
Although Fraembs decided to take precautionary action, the police who responded
to the shooting found him with his gun secured in its holster and his baton still
attached to his belt. From this evidence, a rational jury could conclude that
defendant took Fraembs completely by surprise.


Finally, defendant asserts his actions were not of the same character as

those found to constitute lying in wait in other cases, e.g., he did not wait for a

victim to arrive at a chosen location, or follow or lure a victim to a particular spot,

or murder a victim in his sleep. No matter. Because each case necessarily

depends on its own facts, and because defendant?s conduct clearly satisfied each

of the lying-in-wait requirements, the attempt to contrast this case with others falls

short. (See People v. Thomas (1992) 2 Cal.4th 489, 516 [comparing facts of

different cases did not demonstrate the insufficiency of premeditation evidence in

the case at hand].)

Having determined that substantial evidence supported the lying-in-wait

special-circumstance finding, we conclude the evidence necessarily supported the

conviction of lying-in-wait first degree murder. (People v. Moon, supra,

37 Cal.4th at p. 24.) Accordingly, the trial court did not err or violate defendant?s

constitutional rights when it allowed the prosecution to present its lying-in-wait

theory and instructed the jury accordingly. Nor did the jury act unreasonably in

returning a first degree murder conviction and a true finding on the lying-in-wait

special-circumstance allegation. No reversal is warranted.

2. Authority to Strike the Special Circumstance

We now address the trial court?s section 1385 ruling. The People contend

that, once the jury found the lying-in-wait special circumstance to be true, the trial

court could not strike or dismiss it pursuant to section 1385. We agree.

Section 1385 generally authorizes a judge to order an action dismissed in

furtherance of justice. (? 1385, subd. (a).) However, section 1385.1 provides:

?Notwithstanding Section 1385 or any other provision of law, a judge shall not

strike or dismiss any special circumstance which . . . is found by a jury or court as

provided in Sections 190.1 to 190.5, inclusive.? In light of section 1385.1, the


court had no authority to strike the lying-in-wait special circumstance. (People v.

Lewis (2004) 33 Cal.4th 214, 228; People v. Johnwell (2004) 121 Cal.App.4th

1267, 1283.)

In its brief, the People requested that we reinstate the lying-in-wait special

circumstance pursuant to section 1260.9 In his reply brief, defendant objected to

review of the section 1385 ruling on the ground that the People could not and did

not separately appeal it. In light of the parties? contentions, we invited

supplemental briefing on whether review of the trial court?s ruling is appropriate

under section 1252, which provides in part: ?On an appeal by a defendant, the

appellate court shall, in addition to the issues raised by the defendant, consider and

pass upon all rulings of the trial court adverse to the State which it may be

requested to pass upon by the Attorney General.?

Defendant advances three reasons why section 1252 does not provide a

basis for the People to obtain appellate review of the trial court?s ruling. First, he

contends that the People?s only remedy for obtaining review in this type of

circumstance is to petition for writ of mandate in the Court of Appeal (Code Civ.

Proc., ? 1085),10 and that here, the People?s failure to do so bars our review of the

issue. Second, defendant asserts that, even if review is appropriate at this time,

section 1385.1 did not prevent the trial court?s action. Third, he argues that


Section 1260 provides: ?The court may reverse, affirm, or modify a

judgment or order appealed from, or reduce the degree of the offense or attempted
offense or the punishment imposed, and may set aside, affirm, or modify any or all
of the proceedings subsequent to, or dependent upon, such judgment or order, and
may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.?


Defendant claims the state could not file a separate appeal of this issue

pursuant to section 1238.


permitting the People to obtain review under section 1252 would violate his due

process rights. For the reasons below, none of this is persuasive.

Section 1252 is broadly worded and allows an appellate court, on appeal by

a defendant, to ?consider and pass upon all rulings of the trial court adverse to the

State which it may be requested to pass upon by the Attorney General.? (Italics

added.) Contrary to defendant?s position, the statutory language does not suggest

that section 1252 may be used only when writ relief has been sought and denied.

Nor has any decision so held.

While there is some merit to the contention that section 1252 should be

subject to reasonable limitations, our application of the statute in this case is

essentially consistent with its application in People v. Braeseke (1979) 25 Cal.3d

691. There, the trial court suppressed the defendant?s first confession to police but

admitted the rest of the challenged evidence against him. (Id. at pp. 697-698.) On

appeal, the defendant contended that the admitted evidence should have been

excluded because it was the product of the first confession, which was suppressed

as unlawfully obtained. After noting the People could not have appealed the order

suppressing the first confession, Braeseke determined it would be ?patently

unreasonable? to bar the People from seeking its review under section 1252,

because if the trial court erred in ruling the first confession was inadmissible, it

would follow that the challenged evidence was admissible even though based

upon erroneous reasoning. (Braeseke, at p. 700.) Accordingly, Braeseke

concluded that ?the People may, on an appeal by the defendant and pursuant to the

provisions of section 1252, obtain review of allegedly erroneous rulings by the

trial court in order to secure an affirmance of the judgment of conviction.? (Id. at

p. 701, italics added, fn. omitted.)

Consistent with People v. Braeseke, supra, 25 Cal.3d 691, we hold that

section 1252 permits the People to seek review and correction of a trial court?s


erroneous striking of a special circumstance in a capital appeal. We do so because

defendant?s narrower interpretation of the statute could lead to the invalidation of

a death judgment if this court or a federal court were to conclude, for whatever

reason, that other non-struck special-circumstance findings in a case cannot stand,

or that the invalidity of one or more special circumstances in such a case would

require reversal of a death judgment. When the evidence and the law support a

struck special-circumstance finding, allowing the People to seek review of a trial

court?s clear violation of section 1385.1 will help ensure that a defendant?s death

judgment will not be set aside for any error unless ?a miscarriage of justice? has

occurred. (Cal. Const., art. VI, ? 13.) Accordingly, we conclude that the People?s

failure to separately appeal or petition for writ review of the erroneous striking of

the lying-in-wait special circumstance stands as no bar to our consideration of the

matter, or to the exercise of our statutory power under section 1260.

Defendant contends that, even if review is appropriate at this time, section

1385.1 is intended to prevent a court from striking a jury?s special circumstance

finding only when the striking would alter the defendant?s sentence. Here, he

emphasizes, the death sentence remained unaffected by the court?s action. We are

not convinced.

The language of section 1385.1 is unambiguous in the breadth of its

application: ?Notwithstanding Section 1385 or any other provision of law, a judge

shall not strike or dismiss any special circumstance which is admitted by a plea of

guilty or nolo contendere or is found by a jury or court as provided in Sections

190.1 to 190.5, inclusive.? Defendant?s proposed limitation, which finds no


support in the statutory language or in the ballot materials pertaining to its

enactment, must be rejected.11

Defendant next contends that application of section 1252 would violate his

due process rights. This contention, however, is based on the erroneous

assumption that the statute does not authorize review where, as here, the People

first sought review of trial court?s action in the respondent?s brief. Indeed, any

issue raised pursuant to section 1252 is, by its nature, properly raised in the

respondent?s brief. Moreover, defendant?s opening brief cited section 1385.1 with

respect to the trial court?s striking of the lying-in-wait special circumstance;

therefore, he cannot claim surprise or late notice regarding this purely legal issue.

Defendant also seems to have anticipated controversy concerning the trial court?s

action, for he fully briefed the issue whether sufficient evidence supported the

lying-in-wait special circumstance.

Finally, defendant argues that if section 1385.1 deprived the trial court of

authority to strike the lying-in-wait special circumstance under section 1385, the

matter should be remanded to allow that court to address its concerns pursuant to

section 190.4 or section 1181,12 or under compulsion of the state and federal


Defendant bases his interpretation on Tapia v. Superior Court (1991)

53 Cal.3d 282. Tapia stated in a footnote that section 1385.1 ?appears to be a
direct response to our opinion in People v. Williams (1981) 30 Cal.3d 470,? in
which we held that a trial court had power to dismiss a special circumstance
finding in order to modify the particular defendant?s sentence of life imprisonment
without the possibility of parole. (Tapia, at pp. 298-299, fn. 17.) Even if Tapia
was correct in noting that Williams prompted the enactment of section 1385.1,
there appears no basis for restricting the statute?s application to the context at issue
in Williams.


As relevant to defendant?s contentions, section 190.4, subdivision (e),

provides that in every case where a death verdict is rendered, the trial court must
review the evidence and determine ?whether the jury?s findings and verdicts that

(footnote continued on next page)


Constitutions. We see no basis for a remand. Among other things, our

determination that sufficient evidence supports the lying-in-wait special

circumstance means that the trial court would have no statutory or constitutional

basis for modifying the verdict or ordering a new trial based on the perceived

insufficiency of such evidence.

Having concluded that the trial court had no authority to strike a special

circumstance, we reinstate the lying-in-wait special circumstance pursuant to our

statutory power under section 1260.

C. Absence of Instruction Requiring Unanimous Agreement on

Theory of Murder

The trial court did not instruct the jury that it had to unanimously agree on

which if any statutory form of murder he committed (premeditated and deliberate

or lying in wait). Relying on Schad v. Arizona (1991) 501 U.S. 624 and

Richardson v. United States (1999) 526 U.S. 813, defendant contends the failure to

do so was error and violated his state and federal constitutional rights to due

process, to have the state establish proof of first degree murder beyond a

reasonable doubt, and to a reliable guilt determination.

We have repeatedly rejected this identical contention (e.g., People v.

Russell, supra, 50 Cal.4th at pp. 1256-1257; People v. Cole (2004) 33 Cal.4th

1158, 1221; People v. Edwards, supra, 54 Cal.3d at p. 824), and defendant offers

no persuasive basis on which to revisit our conclusions.

(footnote continued from previous page)

the aggravating circumstances outweigh the mitigating circumstances are contrary
to law or the evidence presented.? Section 1181, paragraph 6, provides that the
trial court may grant a defendant?s application for a new trial ?[w]hen the verdict
or finding is contrary to law or evidence . . . .?


D. Sufficiency of the Evidence Supporting the Special Circumstance

Allegations of Murder of a Police Officer and Murder to Avoid a
Lawful Arrest

At the close of the prosecution?s case-in-chief, defendant challenged the

sufficiency of the evidence supporting the special circumstance allegations of

murder of a police officer (? 190.2, subd. (a)(7)) (section 190.2(a)(7)) and murder

to avoid a lawful arrest (? 190.2, subd. (a)(5)) (section 190.2(a)(5)). Relying on

section 1118.1, defendant moved to strike these two special circumstances on the

ground that, as a matter of law, Officer Fraembs was not acting lawfully in

performing his duties when he was killed.13 The trial court denied defendant?s

motion, and also overruled his objection to the applicable jury instructions. (See

CALJIC Nos. 8.81.5, 8.81.7, 8.81.8.) On appeal, defendant maintains the

evidence was insufficient to prove that Fraembs?s exercise of his duties was


In ruling on a section 1118.1 motion, the trial court applies the same

standard used by the appellate court ? ? ?in reviewing the sufficiency of the

evidence to support a conviction, that is, ?whether from the evidence, including all

reasonable inferences to be drawn therefrom, there is any substantial evidence of

the existence of each element of the offense charged.? ? [Citation.] ?The purpose

of a motion under section 1118.1 is to weed out as soon as possible those few

instances in which the prosecution fails to make even a prima facie case.?


Strictly speaking, section 1118.1 provides that a defendant may move for ?a

judgment of acquittal of one or more of the offenses charged in the accusatory
pleading if the evidence then before the court is insufficient to sustain a conviction
of such offense or offenses on appeal.? The People contest the merits of
defendant?s motion, but do not contend the motion cannot be used to strike special
circumstance allegations. Accordingly, we shall the analyze his claim under that
code section. (Accord, People v. Letner and Tobin (2010) 50 Cal.4th 99, 160-161
& fn. 18.)


[Citations.] The question ?is simply whether the prosecution has presented

sufficient evidence to present the matter to the jury for its determination.?

[Citation.] The sufficiency of the evidence is tested at the point the motion is

made. [Citations.] The question is one of law, subject to independent review.?

(People v. Stevens (2007) 41 Cal.4th 182, 200.)? (People v. Lynch (2010)

50 Cal.4th 693, 759.)

1. Police Officer Murder: Lawful Exercise of Duties

As relevant here, section 190.2(a)(7) provides that a defendant is eligible

for the death penalty when ?[t]he victim was a peace officer . . . who, while

engaged in the course of the performance of his or her duties, was intentionally

killed, and the defendant knew, or reasonably should have known, that the victim

was a peace officer engaged in the performance of his or her duties . . . .? For

purposes of this statute, ?engaged in the course of the performance of his or her

duties? means the officer must have been acting lawfully at the time the offense

was committed. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 [officer?s conduct

must be objectively lawful, but defendant need not subjectively understand its

legality]; People v. Mayfield (1997) 14 Cal.4th 668, 791; People v. Gonzalez

(1990) 51 Cal.3d 1179, 1218-1221.) This special circumstance serves ?to afford

special protection to officers who risk their lives to protect the community.?

(Jenkins, at p. 1021.)

Here, the prosecution presented testimonial and physical evidence that

established the following. Officer Fraembs was in full uniform and driving in his

marked patrol car at 1:30 a.m., when he saw two males and one female walking on

a lonely industrial street. Defendant was dressed in black pants with a black

bomber-style jacket, and Sparky wore a baggy T-shirt and baggy pants with a


knife sheath attached to his belt.14 Although Fraembs was not alive to explain

why he chose to make contact with the three pedestrians, certain inferences were

reasonably drawn from the evidence. As the prosecution reasoned in its closing

argument to the jury, ?It is 1:30 in the morning and [Fraembs] elected to find out

what is going on with these three people. . . . Are these three motorists that have

been stranded and are looking for help? Is this female who is in the presence of

the two males, is she involuntarily in their company? Are these three people who

are lost? Are these three people suspects who are looking for a vehicle to

burglarize or perhaps a business to burglarize because, remember, this is an

industrial street. [?] Officer Fraembs doesn?t know.?

Consistent with the theory that Officer Fraembs may have thought the three

needed help, Johanna Flores testified that Fraembs was ?real nice? when he asked,

?How are you guys doing tonight?? Flores seemed untroubled by the officer?s

approach, thinking the stop might have been ?for curfew check, nothing major.?

What happened next was significant. Although Fraembs asked his question in a

friendly and nonaccusatory manner, the male who was a ?lot taller? than Fraembs

responded with ?an attitude,? saying something like, ?What the hell are you

stopping us for? or ?What are you stopping us for.? That male was defendant,

who in Flores?s words was acting ?rude? and being ?a jerk.? The other male had a

knife sheath hanging from his belt.15 Again, Fraembs was not alive to explain his


Police discovered a knife in the vicinity in which Sparky was found after

the murder. The knife fit into Sparky?s sheath.


At the hearing on defendant?s motion to strike, the trial court stated its

belief that Officer Fraembs observed the knife and knife sheath on Sparky?s
person, and that Fraembs ?apparently was looking to see what weapons, if any,
Sparky had, in addition to a knife that might hurt him . . . .? Substantial evidence
supported that belief as well as the court?s decision to submit the matter to the

(footnote continued on next page)


actions, but Flores testified that, at that juncture, he told defendant and Flores to

?have a seat right there? on the curb. Fraembs called Sparky, the male nearest to

him, with the baggy clothes and knife, over to the patrol car. Sparky put his hands

on the hood, and Fraembs stood behind him and started conducting a patsearch.

The question is whether, on this record, the evidence was sufficient to

prove that Officer Fraembs was acting lawfully when he was killed. For the

reasons below, we conclude the answer is yes.

As defendant concedes, Officer Fraembs initiated a lawful consensual

encounter when he approached defendant and his companions to ask how they

were doing. (See Florida v. Royer (1983) 460 U.S. 491, 497 [?law enforcement

officers do not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place? or ?by putting questions to him

if the person is willing to listen?]; People v. Hughes (2002) 27 Cal.4th 287, 328

[consensual encounter found where officer approached the defendant at a crime

scene, ?inquired whether he could assist him, and posed basic and preliminary

questions? in a nonaccusatory and routine manner to establish whether the

defendant might possess information concerning the crime].) Defendant, however,

contends the consensual encounter ripened into an illegal detention when Fraembs

directed Flores and him to take a seat on the curb and ordered Sparky to the patrol

car for a patsearch.

(footnote continued from previous page)

jury, including photographic evidence showing that, when the police found Sparky
just after the murder, a knife sheath hung from his belt. On appeal, of course, we
presume in support of the judgment the existence of every fact the trier of fact
could reasonably have deduced from the evidence. (People v. Moon, supra,
37 Cal.4th at p. 22.)


Unlike a consensual encounter, a detention is a seizure within the meaning

of the Fourth Amendment of the United States Constitution; a seizure occurs when

an officer restrains a person?s liberty by force or show of authority. (People v.

Glaser (1995) 11 Cal.4th 354, 363, and cases cited.) A consensual encounter may

turn into a lawful detention when an individual?s actions give the appearance of

potential danger to the officer. (People v. Rosales (1989) 211 Cal.App.3d 325,

330.) ?The officer need not be absolutely certain that the individual is armed; the

issue is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.? (Terry v.

Ohio (1968) 392 U.S. 1, 27; see Glaser, at p. 366; In re H.M. (2008) 167

Cal.App.4th 136, 143.) There is no question that ?a perfectly reasonable

apprehension of danger may arise long before the officer is possessed of adequate

information to justify taking a person into custody for the purpose of prosecuting

him for a crime.? (Terry v. Ohio, at pp. 26-27.) But because protection of the

officer and others nearby is the sole justification, the search must be ?confined in

scope to an intrusion reasonably designed to discover guns, knives, clubs, or other

hidden instruments for the assault of the police officer.? (Id. at p. 29; see In re

H.M., at p. 143.)

We conclude the prosecution?s evidence was sufficient to support a finding

that Officer Fraembs was acting lawfully when he detained defendant and his

companions to conduct a patsearch for weapons. As the record reflects, what

began as a consensual encounter turned into a potentially threatening situation for

Fraembs when defendant reacted to his friendly approach in a hostile manner. It

was the middle of the night, and Fraembs was a lone officer outnumbered by three

people, including one confrontational, much taller male and a second male

wearing a knife in a sheath. Both males were wearing clothing loose enough to

conceal other weapons, and there was no one in the immediate vicinity who might


offer assistance. Such evidence amply supports the conclusion that, at that point,

sufficient grounds supported Fraembs?s decision to temporarily detain the three

individuals to check for other weapons. (See People v. Rosales, supra,

211 Cal.App.3d at p. 330.)

Defendant disagrees and contends the photographic evidence showed that

Sparky?s knife sheath might not have been visible under his loose-fitting T-shirt.

That, however, was a question for the trier of fact. (See ante, fn. 15.) But even

assuming Fraembs did not know if any of the three were armed, it remains the case

that he did not draw his gun, use his baton or handcuffs, or arrest anyone. Instead,

Fraembs apparently decided a limited detention to conduct a patsearch was a

sufficient precautionary measure for his safety, and he started with the male who

was closest to him. This was perfectly appropriate. The totality of the

circumstances gave rise to a reasonable apprehension of danger on the officer?s

part, and the detention and patsearch were reasonably designed to discover

weapons. (Terry v. Ohio, supra, 392 U.S. at p. 29; In re H.M., supra,

167 Cal.App.4th at p. 143.)

Because the evidence supports the conclusion that Officer Fraembs acted in

accordance with the Fourth Amendment, the trial court properly denied

defendant?s motion to strike the section 190.2(a)(7) special-circumstance

allegation and related instructional objections.

2. Murder to Avoid Lawful Arrest

As relevant here, section 190.2(a)(5) provides that a defendant is eligible

for the death penalty when ?[t]he murder was committed for the purpose of

avoiding or preventing a lawful arrest . . . .? (Italics added.) Emphasizing the

italicized language, defendant contends this special circumstance should have been

struck because any arrest occurring during Officer Fraembs?s unlawful detention


also would have been unlawful, and therefore outside the scope of the statute. As

explained, however, the prosecution?s evidence supported the lawfulness of the

detention. That being the case, the evidence was sufficient to establish that

defendant would have been subject to a lawful arrest if Fraembs had discovered

his loaded, concealed weapon during the course of that detention.

Defendant?s motion to strike the special circumstance allegation of murder

to avoid lawful arrest was correctly denied, and his related instructional objections

were properly overruled.

E. Evidence of Threats

Defendant contends the trial court committed reversible error by improperly

admitting evidence of threats made to three witnesses and evidence of Johanna

Flores?s relocation, as well as by excluding testimony that Flores had threatened

defendant several weeks before the shooting. He claims the erroneous evidentiary

rulings undermined the integrity of his trial and violated his state and federal

constitutional rights to a fair trial, confrontation of witnesses, due process,

effective assistance of counsel, and a reliable and nonarbitrary sentencing process.

1. ?Third Party? Threat Against Flores

Flores testified at the preliminary hearing that she called defendant the

morning after the shooting. Defendant?s brother Angel answered and told her, ?I

thought you were dead.? When Flores asked why, Angel replied, ?That?s what we

do to jaina[s] who see things, who see things they should not see.?16 At trial, the

prosecutor contended Flores should be permitted to testify about this conversation

because Angel?s threat was relevant to her state of mind and credibility. Although


?Jaina? apparently is a Spanish slang term for ?girl? or ?girlfriend.?


defense counsel acknowledged that Flores had been ?scared from Day One,? he

argued that Angel?s statements did not constitute a direct threat to Flores, that the

evidence was inadmissible hearsay, and that it should be excluded under Evidence

Code section 352.

After taking a recess to consider the matter, the trial court ruled it would

allow the prosecution to elicit testimony from Flores that she felt threatened by

defendant and Angel, and was afraid to testify. The court ruled, however, that the

particular statement by Angel ? referring to ?jaina[s] . . . who see things they

should not see? ? would not be allowed, subject to reconsideration of the ruling

in the event Flores recanted or her memory became selective.17 Thereafter, Flores

testified that Angel said something threatening to her the morning after the

shooting, causing her to feel ?really scared? at the time. Flores also testified the

police relocated her entire family at her request.

Evidence Code section 780 provides in relevant part: ?Except as otherwise

provided by statute, the court or jury may consider in determining the credibility

of a witness any matter that has any tendency in reason to prove or disprove the

truthfulness of his testimony at the hearing, including but not limited to any of the

following: [?] . . . [?] (f) The existence or nonexistence of a bias, interest, or other

motive. [?] . . . [?] (j) His attitude toward the action in which he testifies or toward

the giving of testimony.? As we have recognized, ?[e]vidence that a witness is

afraid to testify or fears retaliation for testifying is relevant to the credibility of that


The court ruled, however, that Flores could testify regarding any

threatening statements defendant himself had made to her. Consistent with this
ruling, Flores testified that after Officer Fraembs?s shooting, defendant pointed his
gun at her and twice asked if she was going to say anything. Flores took
defendant?s action seriously, and each time responded that she did not see, hear, or
know anything.


witness and is therefore admissible. [Citations.] An explanation of the basis for

the witness?s fear is likewise relevant to her credibility and is well within the

discretion of the trial court. [Citations.]? (People v. Burgener (2003) 29 Cal.4th

833, 869; see People v. Valencia (2008) 43 Cal.4th 268, 302.) Moreover,

evidence of a ?third party? threat may bear on the credibility of the witness,

whether or not the threat is directly linked to the defendant. (See People v. Guerra

(2006) 37 Cal.4th 1067, 1142; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368


Olguin, supra, 31 Cal.App.4th 1355, is instructive. There, an eyewitness to

a gang-related shooting testified he left the crime scene and did not voluntarily

provide information to the police because ? ?I didn?t want anything to happen to

my house or to my family.? ? (Id. at p. 1368.) Over the defendants? objection, the

witness testified that someone telephoned him a few days after the shooting, that

the caller said they knew where the witness lived and he had better watch his back,

and that the caller also mentioned the name of the defendants? gang. The witness

further testified that someone subsequently ?spray-painted the word ?Rata?

(Spanish for ?rat?) on his driveway.? (Ibid.) In holding the challenged evidence

was properly admitted, Olguin explained: ?Just as the fact a witness expects to

receive something in exchange for testimony may be considered in evaluating his

or her credibility [citation], the fact a witness is testifying despite fear of

recrimination is important to fully evaluating his or her credibility. For this

purpose, it matters not the source of the threat. It could come from a friend of the

defendant, or it could come from a stranger who merely approves of the

defendant?s conduct or disapproves of the victim. . . . [?] Regardless of its source,

the jury would be entitled to evaluate the witness?s testimony knowing it was

given under such circumstances. And they would be entitled to know not just that

the witness was afraid, but also, within the limits of Evidence Code section 352,


those facts which would enable them to evaluate the witness?s fear. A witness

who expresses fear of testifying because he is afraid of being shunned by a rich

uncle who disapproves of lawyers would have to be evaluated quite differently

than one whose fear of testifying is based upon bullets having been fired into her

home the night before the trial.? (Id. at pp. 1368-1369.)

Likewise, in People v. Avalos (1984) 37 Cal.3d 216 (Avalos), an eyewitness

to a crime hesitated before responding affirmatively when asked by the prosecutor

whether the person she previously identified in a lineup (i.e., the defendant) was in

the courtroom. (Id. at p. 232.) At an in camera hearing, the trial court ruled the

prosecution might ask whether the witness was reluctant to testify out of fear,

because ?the fact she felt fear, whether or not caused by specific acts of any

persons connected with the trial, was relevant to her credibility and . . . the

probative value outweighed any potential prejudice to defendant.? (Ibid.) Upon

resuming the stand, the witness testified she was afraid to testify. Defense counsel

then clarified during cross-examination that the witness?s fear was due only to the

importance of the event. (Ibid.) On appeal, we concluded the evidence was

properly admitted: ?The determination that an explanation of [the witness?s]

hesitation would be relevant to the jury?s assessment of her credibility was well

within the discretion of the trial court.? (Ibid.) Moreover, the evidence had no

prejudicial impact given counsel?s clarification that the witness?s fear did not

reflect on the defendant. (Ibid.)

These authorities make clear that a trial court has discretion, within the

limits of Evidence Code section 352, to permit the prosecution to introduce

evidence supporting a witness?s credibility on direct examination, particularly

when the prosecution reasonably anticipates a defense attack on the credibility of

that witness. That is what happened here. Flores was the prosecution?s key

witness, and the credibility of her testimony was essential to establish defendant?s


guilt of the charged crimes and the truth of the special circumstance allegations.

As the People point out, the defense signaled a strategy of challenging Flores?s

credibility as early as the preliminary hearing, when it questioned Flores regarding

her gang affiliations, her drug and alcohol use, her sex life and her jealousy toward

defendant?s relationship with Valore, and her fights with defendant. Thus at trial,

the prosecution was keenly aware of the possibility that the jurors would believe,

as the defense later sought to establish through cross-examination of Flores and

Meyers and during closing argument, that Flores was a jealous, foul-mouthed,

drug-abusing, ?hard-core home girl gang banger? who was wrongfully accusing

defendant of murder because of his relationship with Valore. Under these

circumstances, the trial court properly allowed the prosecution to support Flores?s

credibility by eliciting her direct examination testimony that she became fearful

after speaking with Angel the morning after the shooting.

Defendant maintains that none of Flores?s testimony on the point was

admissible because she never recanted her testimony nor were there substantial

inconsistencies in it.18 To support this position, he relies on People v. Brooks

(1979) 88 Cal.App.3d 180, which purported to hold that a witness?s testimony

concerning a threat she received was irrelevant because the witness gave no

inconsistent testimony before the threat testimony was elicited. According to

Brooks, the absence of any prior inconsistent testimony on the part of that witness

meant ?there was no issue of credibility,? thus rendering ?the ?threat? evidence . . .

immaterial to any issue and irrelevant to the case.? (Id. at p. 187.)

We are not persuaded by Brooks for several reasons. First, Brooks cited no

authority for the proposition that inconsistent testimony is a prerequisite to the


Defendant concedes Flores?s trial testimony contradicted her earlier

statements, but argues the inconsistencies were insubstantial.


admission of evidence of a third party?s threat or a witness?s fear, and such a

proposition finds no support in the terms of Evidence Code section 780. Second,

as other authorities explain, evidence that a witness testifies despite fear is

important to fully evaluating his or her credibility. (E.g., Olguin, supra,

31 Cal.App.4th at p. 1369.) The logic of this rationale does not hinge on whether

the witness gave prior inconsistent testimony. Third, Brooks is contrary to

decisions of this court that have recognized the relevance of such evidence when

inconsistent testimony was not at issue. (E.g., People v. Valencia, supra,

43 Cal.4th at pp. 301-302; People v. Dickey (2005) 35 Cal.4th 884, 912-913;

People v. Sapp (2003) 31 Cal.4th 240, 280-281; People v. Warren (1988)

45 Cal.3d 471, 481; Avalos, supra, 37 Cal.3d at p. 232; People v. Green (1980)

27 Cal.3d 1, 19-20; accord, Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)19

Finally, defendant claims that the trial court ?completely ignored the

question of whether the prejudicial effect of the evidence outweighed its probative

value? and that it failed to rule on his Evidence Code section 352 objection. This

claim is contradicted by the record, which discloses the court took a recess for the

express purpose of considering several issues pertaining to Flores?s testimony,

including this particular one. Upon reconvening, the court discussed the parties?

authorities and fashioned a ruling that recognized the relevance of Angel?s threats

and at the same time addressed defendant?s concerns regarding prejudice.20


People v. Brooks, supra, 88 Cal.App.3d 180, is hereby disapproved to the

extent it is inconsistent with the views expressed herein.


The court stated it would permit Flores?s testimony that Angel said

something threatening to her, but would exclude evidence of Angel?s actual words
unless Flores recanted or exhibited selective memory in her trial testimony.
Defendant, however, did not request a limiting instruction with regard to the

(footnote continued on next page)


Contrary to defendant?s suggestion, the evidence of Angel?s threat was not

cumulative to the evidence that defendant threatened Flores at the scene of the

crime; nor was it unduly prejudicial. Accordingly, admission of the evidence was

not erroneous under Evidence Code section 352.

2. Third Party Threats Against Arambula and Silva

Defendant next contends the trial court erred by admitting evidence that

(1) Elva Arambula became frightened by a threat she received following her

preliminary hearing testimony, and (2) Joseph Silva became frightened after a

Happy Town gang member named Casper told him to keep his mouth shut and

said his entire family would be killed if he testified that defendant had admitted

shooting a cop.

Arambula and Silva both gave testimony that was inconsistent with their

earlier statements in certain respects.21 On appeal, defendant and the People

dispute whether the inconsistencies were substantial or minor. Regardless of this

disagreement, the testimony was properly admitted. As discussed, evidence that a

(footnote continued from previous page)

evidence of Angel?s threat, so the trial court was not obligated give one. (People
v. Sapp
, supra, 31 Cal.4th at p. 301.)

Moreover, the court was not required to explicitly state it was engaging in

the Evidence Code section 352 weighing process when it fashioned its order.
(People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1 [record must affirmatively
show the trial court weighed prejudice against probative value, but court need not
expressly state it did so].)


The inconsistency involving Arambula concerned her account of the

direction in which defendant and Flores were walking when the two groups parted
before the shooting occurred. The inconsistency involving Silva pertained to his
testimony that he could have told the police that defendant said he had used the
gun Silva purchased ?to kill a cop,? but that this was ?not the way it happened.?


witness is afraid to testify or fears retaliation for testifying is relevant to that

witness?s credibility (People v. Burgener, supra, 29 Cal.4th at p. 869; Evid. Code,

? 780), and may be admissible whether or not the threat is directly linked to the

defendant (see People v. Guerra, supra, 37 Cal.4th at p. 1142; Olguin, supra,

31 Cal.App.4th at p. 1368.) As also explained, recantation or inconsistent

testimony is not a prerequisite for the admission of evidence of a third party?s

threat or a witness?s fear, although here such evidence might have explained the

witnesses? inconsistent accounts of events (see ante, fn. 21) and Silva?s demeanor

while testifying.22 This contention is rejected.

Defendant next contends that Evidence Code section 352 required

exclusion of these third party threats. We disagree. Not only was the evidence

relevant to each witness?s credibility, but any potential for prejudice was

eliminated by the trial court?s express instructions that the jury was to consider

such evidence for the sole purpose of determining the credibility of these

witnesses. Moreover, the court allowed the parties to clarify that the threat against

Arambula had not been made by defendant.23


Although Silva denied being afraid during the prosecution?s direct

examination, he apparently was a reluctant witness and testified with his back
toward defendant.


Defendant additionally contends that, whether or not the claimed errors

were prejudicial at the guilt phase, they adversely affected the penalty
determination, particularly with regard to the evidence in aggravation concerning
the beating of Ryan Schultz, whose car was shot up. In this regard, defendant
notes that Schultz testified he did not initially tell the police what happened
because he feared defendant?s gang. Having concluded that admission of the
threat evidence was not error at all, we reject this penalty phase claim as meritless.


3. Alleged Atmosphere of Fear

Defendant complains the erroneous admission of the alleged threats and

testimony regarding witnesses? fear created an atmosphere of fear among the

jurors such that he was deprived of his constitutional rights to due process and a

fair trial. To prove his point, defendant identifies one instance in which some of

the jurors approached the bailiff about a spectator in court who, even though he

had not said or done anything, made them feel ?uncomfortable.? Defendant also

notes that another time, a juror told the court he was worried that a newspaper

photographer had taken his picture.

Defendant forfeited review of this constitutional claim by failing to raise it

at trial. (People v. Carter (2003) 30 Cal.4th 1166, 1201; see People v. Williams

(1997) 16 Cal.4th 153, 208-209.) Even assuming it was properly preserved, we

would find it lacking in merit. As discussed above, the evidence of third party

threats and the witnesses? fear was relevant on the issue of witness credibility.

The questioning and closing argument concerning such evidence was brief and

noninflammatory, and limiting instructions were given as requested.

Although some jurors initially expressed concern about the courtroom

spectator and newspaper photographer, the record reflects that the trial court

immediately addressed each concern to the apparent satisfaction of the jurors.24


With regard to the courtroom spectator, the court discussed the matter with

the parties and thereafter told the jury: ?One thing I wanted to talk to you about
very briefly: some of you had expressed concern as to a spectator that was in the
courtroom and this concern was expressed to the bailiff. Our information is that
that person is a citizen in the community, that he is a spectator. All of you know
that courtrooms are open to the public and they are free to come in to view at any
time they may wish to. It?s our belief that there is no reason for anyone to be
concerned about that person. If that should change, we will inform you. I don?t
believe there is anything to be concern[ed] about.? To the extent the presence of

(footnote continued on next page)


Whether considered individually or together, these incidents did not reflect an

atmosphere of fear that deprived defendant of due process or a fair trial.

In sum, defendant fails to establish that any error occurred, much less one

of constitutional dimension.

4. Flores?s Threat Against Defendant

After the prosecution concluded its direct examination of Jason Meyers, the

defense asked the trial court to allow Meyers to testify he heard Flores tell

defendant, about a month and a half before the shooting, that she could have

defendant ?taken out? by ?Cherryville.? The prosecution vigorously objected,

arguing in part that the evidence was more prejudicial than probative and that

Flores, who had concluded her testimony but was subject to re-call, should have

been given the opportunity to deny or explain the alleged threat. The court agreed

that Flores?s relationship and general demeanor with defendant in the two weeks

leading up to the shooting would be relevant to show any bias or motive she might

have to testify falsely against defendant, but concluded that the alleged threat was

too remote to be relevant and excluded the testimony. Specifically, the court

rejected defense counsel?s argument that Flores?s threat to have defendant taken

out by members of a rival gang would be relevant to show she might be willing to

(footnote continued from previous page)

the particular spectator in the courtroom initially worried some jurors, the record
shows no continued concern after the court?s statements.

The incident involving the newspaper photographer involved only one

juror, who informed the court he was behind the victim?s mother and a police
officer when he was photographed. The court ordered production of all the
photographs taken, and ascertained the juror had in fact appeared in a single
unpublished photograph. The court ordered that the photograph and negative be
destroyed, and that the newspaper not publish any photograph in which a juror


wrongly accuse defendant out of intense hatred and bias. On appeal, defendant

contends the court?s exclusion of the alleged threat was contrary to state law and

also deprived him of his federal constitutional rights to present his defense and to

due process and a fair trial. We disagree.

Under Evidence Code section 352, a trial court has ?broad power to control

the presentation of proposed impeachment evidence ? ? ?to prevent criminal trials

from degenerating into nitpicking wars of attrition over collateral credibility

issues.? [Citation.]? ? [Citation.]? (People v. Mills (2010) 48 Cal.4th 158, 195.)

? ?[W]e have repeatedly held that ?not every restriction on a defendant?s desired

method of cross-examination is a constitutional violation. Within the confines of

the confrontation clause, the trial court retains wide latitude in restricting cross-

examination that is repetitive, prejudicial, confusing of the issues, or of marginal

relevance.? [Citation.]? [Citations.]? (People v. Harris (2008) 43 Cal.4th 1269,

1292.) ?On appeal, we evaluate the court?s ruling by applying an abuse of

discretion standard.? (Mills, at p. 195.)

It bears mentioning that, by the time the issue of Flores?s alleged threat

arose, the jury had already heard substantial testimony concerning the stormy

relationship between Flores and defendant, and specifically about Flores?s anger

and jealousy over defendant?s interactions with other women. Flores herself

testified that she was angry at defendant for ?screwing? and for maintaining a

sexual relationship with Valore, and that she told defendant ?[i]t?s either Brandy

or me.? Flores also acknowledged that, on the night of Officer Fraembs?s

shooting, she argued with defendant when he received a page from Valore while at

Tank?s house and got so mad she hit him. As the two walked to meet Sparky,

Flores was again angered when defendant asked a girl for a cigarette. Meyers

confirmed during his direct examination that Flores reacted to the cigarette request


by ?getting all crazy with [defendant], hitting him and calling him names and

cursing at him.?

On this record, we cannot say the trial court abused its broad discretion in

excluding evidence of Flores?s alleged threat. First, the jury had already heard

substantial evidence of Flores?s potential bias or motive to lie, so the court could

reasonably view Meyers?s additional impeachment testimony as being of marginal

value. (See People v. Harris, supra, 43 Cal.4th at p. 1292.) Second, the court

could reasonably decide that the alleged threat would cause confusion or undue

prejudice, given the significant difference between a jealous woman who threatens

to have a rival gang ?take out? her cheating boyfriend, and one who, several weeks

following a capital murder, manipulates the criminal justice system with false

accusations against the boyfriend to ensure his conviction of murder.25 Third, the

possibility that the prosecution would seek to re-call Flores to deny or explain the

alleged threat, and the time such questioning would have consumed, also was a

valid consideration.

We find no abuse of discretion under Evidence Code section 352. We also

reject defendant?s related constitutional claims. (People v. Mills, supra, 48 Cal.4th

at p. 196 [routine application of state evidentiary law does not implicate a

defendant?s constitutional rights].)

F. Evidence Regarding Defendant?s Parole

Defendant challenges the trial court?s rulings pertaining to his parole status

and related matters.


In the court?s words, ?I see a difference in kind between having Cherryville

take you out and having the entire judicial system or the entire justice system put
you out of commission, so to speak.?


1. Admission of Parole-related Evidence

The trial court permitted the introduction of evidence that defendant was on

parole from the CYA at the time of the shooting, that he was subject to a parole

condition that he not possess a weapon, that he signed a form acknowledging the

terms of his parole, and that he was on notice that a parole violation could result in

his being returned to custody for 575 days, plus a possible additional year for the

actual possession of a weapon. The court also allowed Flores to testify that, a

month or two before the shooting, defendant had told her he was on parole and

?didn?t want to go back? or ?couldn?t go back? to jail. The prosecution relied on

this evidence, as well as on statements defendant made the night of the shooting

about his carrying a gun, to bolster its theory that defendant committed the willful,

deliberate, and premeditated murder of Officer Fraembs in order to avoid arrest

and a return to custody on a serious parole violation.

Defendant contends the evidence of his parole status and conditions and

Flores?s testimony on the point should have been excluded as more prejudicial

than probative. Although defendant?s Evidence Code section 352 objection to

such evidence was overruled at a pretrial hearing in June 1997, the People assert

the issue has not been preserved for review because that objection was deficient

and the defense neglected to make appropriate objections during the trial

testimony of Flores and of defendant?s parole officer. No matter. The claim is

handily rejected on the merits.

For purposes of Evidence Code section 352, evidence is considered unduly

prejudicial if it tends to evoke an emotional bias against the defendant as an

individual and has a negligible bearing on the issues. (People v. Padilla (1995)

11 Cal.4th 891, 925.) Put another way, evidence should be excluded ? ? ?when it

is of such nature as to inflame the emotions of the jury, motivating them to use the

information, not to logically evaluate the point upon which it is relevant, but to


reward or punish one side because of the jurors? emotional reaction. In such a

circumstance, the evidence is unduly prejudicial because of the substantial

likelihood the jury will use it for an illegitimate purpose.? [Citation.]? (People v.

Doolin (2009) 45 Cal.4th 390, 439.)? (People v. Howard (2010) 51 Cal.4th 15,


Here, the evidence of defendant?s parole status and his awareness of the

consequences he faced if arrested for carrying a gun was highly probative of his

mental state and motive at the time of the shooting. (See ante, pt. II.A.2.)

Defendant?s statement to Flores that he ?didn?t want to go back? or ?couldn?t go

back? to jail was probative for the same reason, and the circumstance that it might

have been uttered a month or two before the shooting did not render the evidence

irrelevant, or too remote or unreliable. (People v. Taylor (2001) 26 Cal.4th 1155,

1173 [that witness?s conversation with defendant occurred three years before

defendant?s commission of robbery and murder affected the weight of the

evidence, not its admissibility]; People v. Douglas (1990) 50 Cal.3d 468, 511

[?remoteness of evidence goes to its weight and not to its reliability?].)

At the same time, none of this evidence was inflammatory or substantially

likely to elicit an impermissible emotional response from the jury. Evidence that

defendant was on parole from a juvenile detention center and did not want to go

back was not so emotionally charged as to inhibit its logical evaluation by the jury.

Nor would the evidence, by virtue of its nature, have prompted the jury to punish

defendant. No abuse of discretion appears.

2. Exclusion of Prior Parole Violation

When the court was considering whether to admit the parole-related

evidence, defense counsel referred to evidence that a month before Officer

Fraembs?s shooting, defendant was tested for drugs by his parole officer and was


found ?positive for methamphetamine.? Counsel also indicated that defendant had

previously admitted drug use to his parole officer, who then advised defendant to

?clean up? before the drug test. Asserting this was ?strong corroborative

circumstantial evidence? that defendant ?might have been under the influence of

methamphetamine at the time he shot [Fraembs],? counsel argued the evidence

should ?come in for that purpose.? The court disagreed, concluding the evidence

was speculative on the issue because the positive drug test would not have

established that defendant was under the influence a month later when he shot

Fraembs, and no witness who observed defendant on the evening in question

described him as acting under the influence.

Defendant does not argue the court?s ruling was erroneous on the basis

described above. Instead, he characterizes his admissions of drug use and his

positive drug test as evidence that a prior violation of a parole condition did not

result in a parole revocation or return to custody. Excluding this evidence was

error, he claims, because it would have rebutted the prosecution?s claim that he

shot Officer Fraembs to avoid arrest for carrying a gun in violation of parole. We

reject this claim for the following reasons.

First, a fair reading of the record discloses that defendant neglected to

advance this theory of admissibility at trial. Procedurally, then, the issue has not

been preserved for review. (Evid. Code, ? 354; People v. Ervine (2009)

47 Cal.4th 745, 779.)

Second, even assuming the evidence should have been admitted, its absence

was harmless. Evidence that defendant?s parole was not revoked on the basis of

his admissions of drug use and the single positive drug test would have done little

to prove defendant?s lack of concern that his parole could and would have been

revoked for the much more serious violations of carrying a loaded, concealed

weapon in the company of Sparky, a gang member (knowingly associating with


gang members was a separate parole violation). Indeed, defendant specifically

fretted over his gun carrying more than once the evening of the shooting. Not only

did defendant say he did not want to get ?busted? for being ?strapped? when

meeting Sparky at the railroad tracks, but defendant?s immediate reaction when

Officer Fraembs pulled up behind them was to say, ?Oh, shit, the [cops]? and ?Oh,

shit. I got the gun.? On this record, it is not reasonably probable that admission of

the proffered evidence would have garnered a more favorable result for defendant.

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

3. Failure to Give Limiting Instruction

Defendant next contends the trial court erred by failing to give CALJIC

No. 2.50, which instructs the jury as to the limited use of other-crimes evidence.

Although defense counsel indicated at a pretrial hearing that he would request this

instruction if the jury were to hear about the crimes defendant committed as a

juvenile, it appears counsel did not do so in light of certain changed circumstances

at trial.26

Generally, a court is not required to instruct sua sponte on the limited

admissibility of evidence of a defendant?s prior crimes. (See People v. Padilla,

supra, 11 Cal.4th at p. 950; People v. Morris (1991) 53 Cal.3d 152, 214; People v.

Collie (1981) 30 Cal.3d 43, 63.) Notwithstanding this general rule, we have


At the pretrial hearing, defense counsel said that if the prosecution were to

introduce evidence of defendant?s parole status to prove mental state and motive,
counsel would seek to show that defendant had committed a juvenile commercial
burglary so the jury would not speculate why he was on parole, and to then submit
CALJIC No. 2.50 to limit the jury?s consideration of the matter. After learning
from defendant?s parole officer that defendant had in fact been on parole for
residential burglary and for assaulting a school officer, counsel informed the court
he would not introduce such evidence at trial. When Flores and defendant?s parole
officer testified concerning defendant?s parole status, counsel did not ask them
about the prior offenses and made no request for a limiting instruction.


recognized the possibility there might be ?an occasional extraordinary case in

which unprotested evidence of past offenses is a dominant part of the evidence

against the accused, and is both highly prejudicial and minimally relevant to any

legitimate purpose. In such a setting, the evidence might be so obviously

important to the case that sua sponte instruction would be needed to protect the

defendant from his counsel?s inadvertence.? (Collie, at p. 64.)

This case does not present the type of ?extraordinary? situation

contemplated in People v. Collie, supra, 30 Cal.3d 43. As explained, the evidence

of defendant?s parole status and parole conditions was highly relevant to the

central issue of defendant?s mental state and intent with regard to both the first

degree murder count and the charged special circumstances. At the same time, it

was not inflammatory and ?there was little, if any, danger that the jury would

consider such evidence for any . . . improper purposes . . . including general

criminal disposition.? (People v. Bunyard (1988) 45 Cal.3d 1189, 1226.)27

Consequently, no sua sponte instruction was required.

Because there is no merit to any of the foregoing evidentiary and

instructional claims of state law error, it follows that the claimed errors did not

violate his state and federal constitutional rights to due process and a fair trial.

G. CALJIC No. 2.51

With defendant?s agreement, the trial court instructed the jury pursuant to

CALJIC No. 2.51, as follows: ?Motive is not an element of the crime charged and


Defendant complains the need for CALJIC No. 2.50 was particularly acute

because the jury was told he was a gang member and likely surmised his parole
status was associated with gang activity. As indicated, however, it was the
defense?s decision to refrain from asking the witnesses about the crimes that led to
defendant?s parole status.


need not be shown. However, you may consider motive or lack of motive as a

circumstance in this case. Presence of motive may tend to establish the defendant

is guilty. Absence of motive may tend to show the defendant is not guilty.?

Notwithstanding his acquiescence at trial, defendant complains on appeal

that CALJIC No. 2.51 fails to adequately instruct that motive alone is insufficient

to establish guilt,28 that the instruction impermissibly lessens the prosecution?s

burden of proof with regard to the element of intent, that it shifts the burden of

proof to defendants to prove their innocence, and that its use violated his state and

federal constitutional rights to due process, a fair jury trial, and reliable guilt and

penalty determinations. We reject these claims, as we have before (e.g., People v.

Tate (2010) 49 Cal.4th 635, 699; People v. Friend (2009) 47 Cal.4th 1, 53; People

v. Wilson, supra, 43 Cal.4th at p. 22; People v. Cleveland, supra, 32 Cal.4th at

p. 750), and see no reason to revisit their merits.

H. CALJIC Nos. 2.02, 2.21.2, 2.22, 2.27, 8.20

Defendant contends the trial court gave several instructions that

undermined the requirement of proof beyond a reasonable doubt in violation of his

constitutional rights to due process, trial by jury, and a reliable guilt verdict:

CALJIC Nos. 2.02, 2.21.2, 2.22, 2.27, and 8.20.

As defendant acknowledges, we have previously rejected such contentions

as to all the instructions cited. (E.g., People v. Tate, supra, 49 Cal.4th at pp. 697-

698; People v. Hartsch (2010) 49 Cal.4th 472, 506; People v. Friend, supra,


To the extent this claim merely concerns the clarity of the instruction, it is

not cognizable on appeal given defendant?s failure to request clarification at trial.
(People v. Wilson (2008) 43 Cal.4th 1, 22; People v. Cleveland (2004) 32 Cal.4th
704, 750.)


47 Cal.4th at p. 53; People v. Whisenhunt (2008) 44 Cal.4th 174, 220-221.) We

decline to reconsider our position.

I. Validity of the Lying-in-wait Special Circumstance

Defendant argues the lying-in-wait special circumstance, as interpreted by

this court, violates the Eighth Amendment to the United States Constitution

because it fails to adequately narrow the class of persons eligible for the death

penalty and fails to provide a meaningful basis for distinguishing cases in which

the death penalty is sought from cases in which it is not. We have repeatedly

rejected these same contentions. (People v. Carasi (2008) 44 Cal.4th 1263, 1310;

People v. Cruz (2008) 44 Cal.4th 636, 678; People v. Lewis (2008) 43 Cal.4th 415,

515-516; People v. Jurado (2006) 38 Cal.4th 72, 127.) We do the same here.

J. Challenges to California?s Death Penalty Statute and Related


Defendant makes a number of challenges to the constitutionality of our

state death penalty sentencing scheme and the jury instructions thereunder. We

have previously rejected all such challenges, as follows.

Contrary to defendant?s assertions, section 190.3, factor (a), is not applied

in such a ?wanton and freakish? manner that it results in the arbitrary and

capricious imposition of the death penalty in violation of the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution. (People v. Russell,

supra, 50 Cal.4th at p. 1274; People v. Bennett (2009) 45 Cal.4th 577, 630-631;

People v. Jenkins, supra, 22 Cal.4th at pp. 1050-1053.)

?Neither the federal nor the state Constitution requires that the penalty

phase jury make unanimous findings concerning the particular aggravating

circumstances, find all aggravating factors beyond a reasonable doubt, or find

beyond a reasonable doubt that the aggravating factors outweigh the mitigating

factors.? (People v. Jennings (2010) 50 Cal.4th 616, 689.) Moreover, jury


unanimity is not required with regard to unadjudicated criminal activity. (People

v. Dykes (2009) 46 Cal.4th 731, 799.) There is no constitutional requirement that

the jury find beyond a reasonable doubt that death is the appropriate punishment.

(People v. Carrington (2009) 47 Cal.4th 145, 199-200; People v. Romero (2008)

44 Cal.4th 386, 428.) The Supreme Court?s decisions in Apprendi v. New Jersey

(2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Ring v.

Arizona (2002) 536 U.S. 584 have not altered these conclusions. (Jennings, at

p. 689; Carrington, at p. 200; Dykes, at pp. 799-800.)

? ?The death penalty scheme is not unconstitutional because it fails to

allocate the burden of proof ? or establish a standard of proof ? for finding the

existence of an aggravating factor . . . . [Citations.]? ? (People v. Jennings, supra,

50 Cal.4th at p. 689.) Nor was the trial court required to instruct the jury that there

is no burden of proof at the penalty phase. (Ibid.) The federal Constitution does

not require that the state bear some burden of persuasion at the penalty phase, and

the jury instructions were not deficient in failing to so provide. (People v. Russell,

supra, 50 Cal.4th at p. 1272; People v. Friend, supra, 47 Cal.4th at p. 89.)

Defendant was not entitled to an instruction regarding a ? ? ?presumption of

life.? ? ? (Russell, at p. 1272; see People v. Ervine, supra, 47 Cal.4th at p. 811.)

CALJIC Nos. 8.85 and 8.88 do not fail to provide the jury with the

guidance legally required for administration of the death penalty to meet

constitutional minimum standards. (People v. Bramit (2009) 46 Cal.4th 1221,

1248-1249, and cases cited.) More specifically, CALJIC No. 8.88?s use of the

phrase ?so substantial,? and of the term ?warranted? instead of ?appropriate,? does

not render the instruction impermissibly vague or ambiguous. (People v. Russell,


supra, 50 Cal.4th at p. 1273; People v. Tate, supra, 49 Cal.4th at p. 712.)29

Where, as here, the jury is instructed in the language of CALJIC No. 8.88, the

court need not further instruct that life without parole is mandatory if mitigation

outweighs aggravation, or that life without parole is permissible even if

aggravation outweighs mitigation. (Tate, at p. 712, and cases cited.)

Our standard penalty phase instructions do not call for jury unanimity on

mitigating factors; nor do they mislead a jury into believing such unanimity is

required. (People v. Hawthorne (2009) 46 Cal.4th 67, 104.) Moreover, ?[t]he trial

court need not instruct that the beyond-a-reasonable-doubt standard and the

requirement of jury unanimity do not apply to mitigating factors.? (People v.

Rogers (2006) 39 Cal.4th 826, 897.)

Written findings by the jury during the penalty phase are not

constitutionally required, and their absence does not deprive defendant of

meaningful appellate review. (People v. Russell, supra, 50 Cal.4th at p. 1274;

People v. Salcido (2008) 44 Cal.4th 93, 166.)

The trial court was not required, at defendant?s request, to delete the

inapplicable factors in aggravation and mitigation. (People v. Zambrano (2007)

41 Cal.4th 1082, 1185; People v. Maury (2003) 30 Cal.4th 342, 439-440 [when a

jury has been given standard statutory instructions, we assume it has followed

such instructions and has concluded that mitigating factors were inapplicable if not

supported by the evidence].) Nor was the trial court ?constitutionally required to

instruct the jury as to which of the listed sentencing factors are aggravating, which

are mitigating, and which could be either mitigating or aggravating, depending


To the extent defendant casts this claim as one of instructional error, his

failure to request a clarifying instruction at trial forfeits review of the issue.
(People v. Russell, supra, 50 Cal.4th at p. 1273.)


upon the jury?s appraisal of the evidence. [Citations.]? (People v. Jennings,

supra, 50 Cal.4th at p. 690.) ?Additionally, ?the statutory instruction to the jury to

consider ?whether or not? certain mitigating factors were present did not

unconstitutionally suggest that the absence of such factors amounted to

aggravation. [Citation.]? ? (Ibid.) Finally, the inclusion of inapplicable factors

did not deprive defendant of his right to an individualized sentencing

determination based on permissible factors relating to him and his crime. (People

v. Carter (2005) 36 Cal.4th 1215, 1280.)30


In connection with these claims, defendant contends the prosecution

separately discussed section 190.3, factor (d) (extreme mental or emotional
disturbance), factor (e) (victim participant), factor (f) (moral justification), factor
(g) (extreme duress or substantial domination), factor (h) (impairment or
intoxication), and factor (j) (defendant accomplice), and then argued to the jury
that the absence of evidence in mitigation under these factors made each factor
one in aggravation. We have held it error for a prosecutor to make this type of
argument (People v. Lucas (1995) 12 Cal.4th 415, 491 (Lucas); People v.
(1985) 41 Cal.3d 247, 289), but it is unclear whether defendant
advances a misconduct claim on this basis.

To the extent a misconduct claim is presented, defendant forfeited its

review by failing to make appropriate objections or requests for admonishment at
trial. (See Lucas, supra, 12 Cal.4th at pp. 491-492.) In any event, ?[w]e have
repeatedly held that the prosecutorial comment to which defendant now objects is
nonprejudicial? where, as here, the prosecution?s closing argument emphasized the
aggravated nature of the charged crime, relevant under section 190.3, factor (a), as
the main basis for a death verdict and also relied on other evidence of the
defendant?s prior violent conduct, relevant under section 190.3, factor (b). (Lucas,
at p. 492, and cases cited.)

Rather than asserting a misconduct claim per se, defendant appears to

contend he was prejudiced by the combination of the prosecution?s erroneous
argument and the court?s failure to delete inapplicable factors from the standard
instruction and failure to instruct that certain factors could be considered solely as
mitigating. We have rejected similar contentions in the past. As we explained in
Lucas, supra, 12 Cal.4th at page 493, the standard penalty phase instructions
?helped assure that the jury was not misled [citations], and permit us to assume the
jury understood how to evaluate the absence of a particular mitigating factor

(footnote continued on next page)


?[A]djectives 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, supra,

50 Cal.4th at p. 690.)

California?s death penalty sentencing scheme is not constitutionally

defective in omitting to provide for intercase proportionality review. (People v.

Russell, supra, 50 Cal.4th at p. 1274; People v. Jennings, supra, 50 Cal.4th at

p. 691.) Moreover, ?[b]ecause capital defendants are not similarly situated to

noncapital defendants, California?s death penalty law does not deny capital

defendants equal protection by providing certain procedural protections to

noncapital defendants but not to capital defendants. [Citation.]? (Jennings, at

p. 690.)

Finally, we once again reject the contention that California?s use of the

death penalty is ?inconsistent with international norms? and therefore violates the

Eighth and Fourteenth Amendments to the United States Constitution. (People v.

Russell, supra, 50 Cal.4th at p. 1275; People v. Jennings, supra, 50 Cal.4th at

pp. 690-691.)

(footnote continued from previous page)

[citation]. Such properly instructed jurors were ?unlikely to give substantial
aggravating weight to the absence of obviously mitigating factors, such as victim
participation or consent, belief in moral justification, or extreme duress or
domination, which are rarely present in capital homicides.? [Citation.]? This
reasoning is equally applicable here, where the jury received the same instructions,
even though the jury also heard improper argument concerning the absence of
extreme mental disturbance and impairment as factors in aggravation.


K. Cumulative Error

Defendant contends the cumulative prejudicial effect of the errors in both

the guilt phase and the penalty phase requires reversal of his conviction and

sentence of death. We have rejected nearly all of defendant?s claims of error, and

when we have found or assumed error, we have determined defendant was not

prejudiced. Whether such claims are considered individually or together, we find

no prejudicial error at either phase of the proceedings.


We conclude that the trial court had no authority to strike the lying-in-wait

special circumstance (? 1385.1), and we hereby order its reinstatement (? 1260).

As modified, the judgment is affirmed.





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

Name of Opinion People v. Mendoza

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: November 10, 2011

County: Los Angeles
Judge: Alfonso M. Bazan



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

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Sharlene A.
Honnaka, John R. Gorey, Karen Bissonnette and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff
and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Denise Kendall
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Blythe J. Leszkay
Deptuy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-6426