S074624

Filed 1/14/10


IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S074624

v.

TOMMY JESSE MARTINEZ,

Santa Barbara County

Defendant and Appellant.

Super. Ct.

____________________________________) Nos. SM 103236; SM 101161



On June 3, 1998, a jury found defendant Tommy Jesse Martinez guilty of

the rape, robbery, and murder of Sophia Castro Torres. (Pen. Code, ?? 261,

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subd. (a)(2), 211, 187.) The jury found true the special circumstance allegations

of rape and robbery and further determined that defendant personally used a

knife, a deadly and dangerous weapon, in committing the crimes against Sophia.

(?? 190.2, subd. (a)(17)(A), (C), 12022, subd. (b).)

The jury also found defendant guilty of assaulting three other women. The

jury found defendant guilty of assaulting Maria M. with a deadly weapon,

assaulting her with the intent to commit rape, kidnapping her for robbery, and

kidnapping her with the intent to commit rape and oral copulation. (?? 245, subd.

(a)(1), 220, 261, subds. (a)(2) & (2), 209, subd. (b), former 208, subd. (d).) The

jury further determined that defendant personally used a knife, a deadly and


1

All statutory references are to the Penal Code unless otherwise specified.

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dangerous weapon, in committing the crimes against Maria. (? 12022, subd. (b).)

The jury found defendant guilty of assaulting Laura Z. with the intent to commit

rape and that he used a knife, a deadly and dangerous weapon. (?? 220, 261, subd.

(a)(2) & (2), 12022, subd. (b).) The jury found defendant guilty of assaulting

Sabrina P. with a deadly weapon, assaulting her with the intent to commit rape,

and attempting to kidnap her with the intent to commit rape and also found that

defendant used a knife, a deadly and dangerous weapon in the offenses. (?? 245,

subd. (a)(1), 220, 261, subd. (a)(2) & (2), 664, former 208, subd. (d), 12022, subd.

(b).) The jury found that defendant was not guilty of attempting to kidnap

Sabrina for robbery, but was guilty of the lesser offense of attempting to kidnap

her. (?? 664, 207; 664, 209, subd. (b).)

After a penalty trial, on June 23, 1998, the jury returned a verdict of death.

The court denied a motion for a new trial and the automatic application to modify

the verdict (? 190.4, subd. (e)) and sentenced defendant to death. This appeal is

automatic. (? 1239, subd. (b).)

We affirm the judgment.

I. FACTS

A. Guilt Phase

1. The Prosecution?s Case



a) The crimes against Sophia Torres

Sophia Torres was born in Mexico in 1961 and moved to Arizona when she

was 23 years old. Around 1994, because she had broken up with her longtime

boyfriend, Sophia moved to Santa Maria, California, where three of her sisters

lived. Approximately eight months later, she moved back to Arizona and learned

that her ex-boyfriend had been shot and killed. She returned to Santa Maria in

October 1995.

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Sophia, who had been a hard-working and outgoing person, was deeply

affected by her boyfriend?s death and became withdrawn and reclusive. She did

not have any boyfriends and was described as a loner who did not use alcohol or

drugs. She worked odd jobs and was homeless, living mostly in a shelter, but she

remained a very neat and clean person.

At one point, she briefly worked as a bartender at the Tres Amigos bar in

the La Joya Plaza, but was let go after two weekends because she was ?very

meek? and ?too inhibited? to be a bartender. While she worked there, she never

drank, and, after she was let go, she never came back to the bar as a patron or to

socialize.

In the week before her murder, Sophia stayed with a friend of her sisters?,

Ofelia Francisco. According to Mrs. Francisco, Sophia kept to herself. Sophia?s

routine was to leave the house around 8:30 or 9:00 a.m. and return around 9:00 or

10:00 p.m.

On the morning of November 15, 1996, Sophia left Mrs. Francisco?s home

at around 9:00 a.m. She was wearing a long blue jacket over a long black dress

and was carrying her purse. As she usually did, Sophia stopped at the local

Salvation Army where she sat alone and had lunch.

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At some time around 10:30 or 11:00 p.m. that night, Sophia was assaulted

and killed in a baseball field in Oakley Park, a few blocks south of Mrs.

Francisco?s home.

At 11:07 p.m., at a pay phone in La Joya Plaza, several blocks south of the

park, an anonymous male dialed 911 and reported that ?a lady? was being attacked

in Oakley Park with baseball bats by ?two Black girls? who were ?kinda heavy

set.? When the 911 dispatcher realized the location of the pay phone, she asked


2

This is based on the coroner?s estimated time of death.

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the caller why he had called so far away from the scene, but the caller hung up.

The call was recorded.

At 11:08 or 11:09 p.m., Santa Maria Police Officer Louis Murillo arrived at

Oakley Park in response to the 911 call. Due to the poor lighting conditions,

Officer Murillo drove into the park to investigate. Using his patrol car?s lights, he

noticed a female lying on the ground near the snack bar. There was fresh blood all

around her and he called for an ambulance. He checked for vital signs and did not

find any.

Because the grass had been wet, fresh bicycle tracks were visible on the

grass between the snack bar and a large tree, leading to the street.

Based upon the location of personal items and blood spatter marks found at

various places at the park, it appeared Sophia was attacked multiple times as she

tried to flee her attacker. At the bleachers on the third base side of the baseball

diamond, police found a fingernail file, toothbrush, and pencil that may have come

from Sophia?s purse.3 On the bleachers, there were also long strands of black hair

that could have belonged to Sophia. Behind home plate, in the walkway between

the backstop and the snack bar, there was blood spatter on the wall of the snack

bar. Blood spatter in the bleachers on the first base side of the diamond indicated

that Sophia had run into those bleachers. It appeared that Sophia had run under

the bleachers and stopped at one end, as the blood spatter there was consistent

with someone standing still and bleeding downward. The area where Sophia?s

body was found was a section of concrete near the snack bar. She was lying on

her back, with her long dress hiked up above her knees. There was a large amount

of blood on the ground around the victim and a larger pool of blood a few feet


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Her purse was found the next morning in the backyard of a residence

adjacent to the park.

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away, indicating that she had lain in that spot for some time and bled. There was a

palm print next to this pool of blood.

Sophia?s body had multiple bruises with crush-type lacerations consistent

with having been hit with a smooth, blunt object like a baseball bat. The ring and

little fingers of Sophia?s right hand were swollen and bruised, as if her hand had

been hit while fending off her attacker. She had a large bruise to her left breast

area and over her left hip. The left side of her head was swollen and bruised, as if

hit repeatedly by a blunt object. Her nose was broken, with bone fragments

protruding through her skin, and the bridge of her nose was indented and had sunk

inward due to a large crush-type laceration. Her right ear was bruised, with a

small, crush-type laceration. Although her skull was otherwise intact, her brain

had swollen to the point of flattening out in some areas, as opposed to having a

normal wrinkled appearance. The coroner concluded that Sophia died due to blunt

force trauma to the left side of her head, which caused cerebral contusions with

acute subarachnoid and subdural hemorrhage.

On the right of Sophia?s face, extending from the hairline of the temple to

her cheek, was a very deep and sharp-cut laceration measuring three and a half or

four inches long, three-quarters of an inch wide, and almost as deep. The wound

was consistent with having been inflicted by a knife. She also had relatively

minor cuts to her left hand and right elbow and had abrasions to both knees.

Sophia had no bruising, no tearing, and no trauma to her vagina, but the

pathologist, Dr. Robert Failing, believed that the lack of such injuries did not rule

out the possibility of sexual assault. Sperm was detected on Sophia?s dress and on

vaginal swabs taken from her. Subsequent DNA analysis of the vaginal swabs

identified a match with a blood sample obtained from defendant. The DNA

profile recovered from the vaginal swab occurs at an expected frequency of one in

2.2 million persons, or one in 3.75 million Hispanics.

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At the time of her death, Sophia did not have any alcohol or drugs in her

system.

b) The other assaults

1) The assault on Maria M.

Two weeks before Sophia?s murder, on November 3, 1996, Maria M., then

age 16, was walking to work at a nearby discount mall in La Joya Plaza, taking her

usual shortcut through an alleyway. As she exited the alley and entered a

pedestrian walkway into the mall property, a man she later identified as defendant

grabbed her from behind with one arm and held a knife blade against her neck

with his other arm. Maria tried to pull away, but defendant held her tighter,

grabbed her by her hair, and pulled her about 180 feet back into the alleyway.

Defendant untied her shirt and tried to take off her belt and unzip her pants. When

Maria asked what he wanted, defendant replied, ?I want you. I want to mark your

beautiful face.?

Maria believed that defendant wanted to rape her. Defendant tried to kiss

her and his breath smelled like ?[c]hocolate with peanuts, like a Snickers bar.? As

Maria continued to struggle, a young man appeared in the alley and yelled at

defendant. Defendant pushed Maria away from him, but then punched her in the

face. Defendant then ran off. The young man came to Maria?s aid and called the

police. Maria later realized that her pager was missing.

One month later, Maria identified defendant as her attacker when police

presented her with a six-person photographic lineup that included a picture of

defendant. Maria was 100 percent certain that the photograph was of her attacker.

2) The assault on Laura Z.

Just over two weeks after Sophia?s murder, on December 2, 1996, about

6:15 p.m., Laura Z. was leaving her job at a department store in the Town Center

mall in Santa Maria. As she walked toward her truck, which was parked in the

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mall?s parking structure, Laura noticed defendant standing on the side of the ramp,

leaning against a wall. After Laura got inside her truck and closed her door, she

saw defendant running behind her. Laura reacted by immediately locking her

door, just before defendant reached it and tried lifting the truck?s door handle.

Defendant looked from side to side, as if he was surprised that the door was

locked.

Defendant then pointed to his wrist and asked Laura what time it was. She

replied, ?I don?t know.? Defendant then looked around again and ran away.

Laura believed defendant?s intentions were ?bad or evil,? and was

frightened by the encounter. After she drove home, Laura told her husband about

the incident, and he called the police.

A few days later, the police showed Laura a photographic lineup, and she

identified defendant?s photograph as that of her assailant. On a scale of one to 10,

Laura rated her certainty about her identification as a ?10.?

3) The assault on Sabrina P.

Two days after the incident with Laura Z., on December 4, 1996, about

9:00 or 9:30 p.m., Sabrina P. was leaving her job at the Town Center mall.

Sabrina?s mother was supposed to pick her up, so she waited while seated on a

bench outside the mall.

Soon after Sabrina sat down, defendant appeared from behind a cement

wall of the parking structure and started walking toward her while looking from

right to left. Defendant sat down next to Sabrina with his shoulder touching hers,

pulled out a small knife, and held it against her right side, saying, ?Don?t move,

don?t scream and I won?t have to stab you.? Defendant told Sabrina to come with

him, but she said she was not going anywhere because she had just called her

mother, who would be arriving any second. She believed that defendant intended

to rape her.

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Defendant repeated his demand that Sabrina go with him, but then said,

?Get your hand off my knife.? Sabrina suddenly realized that she had grabbed the

handle of defendant?s knife. She refused to let go of the knife, thinking he might

stab her if she did. As they stood up and struggled over the knife, Sabrina began

to scream, and defendant grabbed her other wrist with his free hand. A

motorcyclist passed by, but appeared not to hear Sabrina?s screams. During their

struggle, defendant said, ?Okay, I?ll leave. Just give me my knife. Just let go of

my knife and I?ll leave.? After further struggling, defendant let go of the knife and

walked away calmly as if nothing had happened. As defendant slowly walked

away, he turned around and smirked. Sabrina told him that he would not get away

with what he did. She made a point of observing defendant carefully as he walked

out of view so she was certain of what he looked like and what he was wearing.

Sabrina, still holding the knife in her hand, then ran to a nearby restaurant

and pounded on the door but a woman inside refused to open it. Sabrina pleaded

for the woman to let her in; the woman still refused but agreed to call 911. The

911 operator convinced the woman to let Sabrina into the restaurant, where she got

on the phone and described defendant.

While Sabrina was on the phone with the 911 operator, Santa Maria Police

Officer Jeff Lopez received a call from dispatch regarding a possible attempted

kidnapping outside the mall restaurant. The dispatch operator described the

suspect as a Hispanic male wearing a black, hooded sweatshirt. After driving

through the mall?s parking structure, Officer Lopez saw a person matching that

description riding a bicycle down an adjacent street. That person was defendant.

Defendant made eye contact with Officer Lopez, but began to pedal faster.

Officer Lopez could not maneuver his patrol car over to stop defendant because a

traffic island prevented him from crossing the street. Instead, Officer Lopez

radioed to other officers, who intercepted defendant and detained him.

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Officer Lopez arrived at the scene of defendant?s detention, told defendant

to identify himself, and asked where he was coming from and where he was going.

Defendant admitted he had come from the mall and was going home, but Officer

Lopez pointed out that defendant had been headed in the opposite direction from

his home address. Defendant then claimed he was going to his cousin?s place on

Boone Street first, although he was unable to give Officer Lopez a specific

address. Officer Lopez pointed out that Boone Street was also in a direction

opposite to that in which defendant had been traveling. Defendant claimed he

might have gotten lost. Officer Lopez then asked defendant to sit down on the

curb.

After the police arrived to meet Sabrina at the mall restaurant, they told her

they had already detained someone nearby who matched the description she had

provided. Santa Maria Police Officer Al Torres took her to the location where

defendant was being detained, and Sabrina identified him ?without a doubt or a

second guess.?



c) The investigation



1) Defendant?s statements during his arrest

After Sabrina identified defendant as her attacker, Officer Lopez placed

defendant under arrest. At the restaurant, outside defendant?s presence, Sabrina

had given the knife to Officer Torres. While the officers transported defendant to

the police station, Officer Torres radioed that he had the ?item used? in his

possession. Although no one had mentioned a knife, defendant asked if an officer

had found a knife. Officer Torres replied, ?Who said anything about a knife??

Defendant stated that he thought he had heard one of the officers mention finding

a knife.

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At the police department, Officer Lopez questioned defendant. Defendant

claimed he had gone to the mall to meet his cousin, but did not find her and left on

his bicycle. Defendant denied meeting or assaulting Sabrina P.



2) Defendant?s statements during the first recorded
interrogation


The following day, on December 5, 1996, the police began to suspect that

defendant was also involved in the assaults against Maria M. and Laura Z., and the

murder of Sophia Torres.

Santa Maria Police Detective Gregory Carroll had been assigned to the

investigation of Sophia?s murder along with his partner, Detective Mike Aguillon.

On the morning of December 5, 1996, the detectives thought they might be able to

determine whether defendant was involved with Sophia?s murder by comparing

defendant?s voice with the recording of the man who made the 911 call shortly

after the murder. Earlier that morning, they had played the 911 recording to

defendant?s probation officers, who believed the recording matched defendant?s

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voice.

With a tape recorder running, the detectives introduced themselves to

defendant and asked him a few questions about the assault on Sabrina P. the night

before. Defendant again denied assaulting Sabrina and repeated his claim that he

was at the mall to meet his cousin. The detectives then took a break, excused

themselves from the interrogation room, and compared the taped portion of the

conversation with the 911 tape.


4

This evidence was admitted not for the truth of the matter asserted, but for

the limited purpose of explaining the detectives? conduct in their investigation. In
addition, the audiotapes of the 911 call and defendant?s interrogations were played
for the jury to hear and make their own assessment as to whether the voices
matched.

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Believing that defendant?s voice matched that of the 911 caller, the

detectives returned to the interrogation room and began to question defendant

about Sophia?s murder.

Defendant initially denied being the 911 caller, but then admitted making

the call after Detective Carroll told defendant that both his probation officers had

identified the caller?s voice as his. Defendant claimed he had gone to meet Sophia

at Oakley Park to buy ?crank? from her, but, when he arrived, he saw two Black

women chasing Sophia through the park and hitting her. He claimed he observed

this from the street and that he also saw a man in ?a little beat up car? parked on

the street. Defendant told the detectives that he did not go into the park, but just

kept walking. He said he was wearing a white T-shirt, white pants, and a white

baseball cap. He claimed he went home, but then decided Sophia needed help,

and so he walked to a pay phone to make the 911 call. He told the detectives that

he did not want to identify himself on the 911 call because he was high on crank

and did not want to get arrested.

Defendant claimed that when he last saw Sophia, she was being chased

from the playground area and into the baseball field. But when Detective Carroll

asked defendant why he told the 911 operator that Sophia was being attacked at

the snack bar, defendant hesitated and said, ?I just wanted somebody to go out

there quick.? He denied killing or hitting Sophia, but said he would be unable to

identify the two Black women.

Defendant initially said he had bought crank from Sophia before, but after

Detective Carroll explained that Sophia was a ?semi-transient? and that ?nothing?

indicated that she was a drug dealer, defendant claimed that he had met her for the

first time that night and was going to the park to buy crank from her for the first

time as well. Defendant said he had met her earlier that night at the Tres Amigos

bar at La Joya Plaza. After Detective Carroll pointed out defendant?s inconsistent

statements about buying crank from Sophia, explained that she could not have

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been a drug dealer, and explained that it was not possible for defendant to have

seen Sophia in the pitch-black park from the street, defendant admitted his story

did not make sense.

The detectives encouraged him ?to think about it,? and ended the

interrogation.

3) Search warrants and witness identification

During the course of the day on December 5, 1996, police officers located

Maria M. and Laura Z. and, as described above, they each positively identified

defendant?s picture in the photographic lineups presented to them.

On the same day, Detective Aguillon participated in the execution of a

search warrant at defendant?s residence. Detective Aguillon searched defendant?s

bedroom and found a can of Fabulous brand cleaning fluid and a bottle of

hydrogen peroxide on his closet floor, but found no white T-shirt, white pants, or

white baseball cap.

About 5:00 p.m. that day, Detectives Carroll and Aguillon then executed a

second search warrant by taking defendant to a hospital, for a nurse to collect his

blood, hair samples, and additional evidence for a sexual assault kit. During the

ride to the hospital, the detectives asked defendant to repeat his explanation of

what happened on the night of Sophia?s murder. Defendant again described how

he had gone to the park to buy crank from Sophia, but then saw two Black girls

chasing her, one hitting Sophia with her fists and the other holding a bat.

Defendant described Sophia?s attackers as being about five feet six or five feet

seven inches tall and ?chunky.? Contradicting his previous statement, defendant

now said he thought he would be able to identify them.

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4) Defendant?s statements during the second recorded

interrogation

At 7:00 p.m. on December 5, 1996, Detectives Carroll and Aguillon

returned defendant to the police station from the hospital, and began a second

recorded interrogation.

In this interrogation, the detectives told defendant that two other women

had now identified him as a suspect in two different incidents. Detective Carroll

briefly described the incidents reported by Maria M. and Laura Z. The detectives

also explained how Maria and Laura had both unequivocally identified defendant

after being shown a photographic lineup. Detective Aguillon explained

defendant?s predicament ? that three different women, who did not know each

other, all described defendant as their attacker in incidents occurring within a

month and a half. The detectives also explained that the small paring knife

defendant had used to assault Sabrina P. had a handle that matched a set of knives

found at his residence.

Defendant denied involvement in any of the three assaults and claimed the

three women must be mistaken or lying.

As to Sophia?s murder, defendant again denied hitting her or having any

physical contact with her. Defendant claimed he mentioned the snack bar on the

911 call because he had seen the girls chase Sophia towards the snack bar.

Contrary to what he had said in the first recorded interview, he now claimed he

had not seen them coming from the playground. But when the detectives pointed

out that it was not possible for him to have seen Sophia at the snack bar from his

location on the street, defendant claimed, for the first time, that he had walked off

on an adjacent street and then returned to the edge of the park, and that was when

he saw them running towards the snack bar.

The detectives said they did not find defendant?s story credible and told

him that no witnesses reported seeing any Black females in the area that night.

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They also told defendant they had spoken with people at the bar where defendant

had claimed he met Sophia on the night of her murder and that the detectives had

been told that Sophia did not ?hang out there.? The detectives told defendant that

Sophia was penniless, did not sell methamphetamine, and was only near Oakley

Park because that was the route she took to walk home. Defendant did not change

his story.



5) Defendant?s final interrogation

The next morning, on December 6, 1996, Detectives Carroll and Aguillon

again met with defendant. This interrogation was not recorded.

Defendant repeated his story about two Black females assaulting Sophia.

But when the detectives confronted him about the assaults against the other

women and asked whether they were lying, defendant admitted, ?I did those.? He

claimed, however, that he had not intended to rape either Maria M. or Sabrina P.,

but had only intended to rob them. He also explained that he had not tried to

remove Maria?s pants, but had only tried to go through her pockets. He did not

know why he had punched her.

Defendant continued to deny any involvement in the Laura Z. assault.



6) Additional investigation

Employees at the Tres Amigos bar did not see either defendant or Sophia at

the bar on the night of her murder.

At the time of the crimes, Oakley Park, including its baseball field, had no

artificial illumination at night. In addition, according to the testimony of

astronomer David Kary, on the night of the murder the moon had set at 9:38 p.m.,

well before Sophia?s estimated time of death. Under similar lighting conditions,

the prosecutors reenacted defendant?s version of how he observed the attack on

Sophia inside the park while Kary observed from the street adjacent to the park.

Kary testified it was not possible to see persons inside the park from his location

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on the street, and that, at best, he was only able to see the prosecutors briefly in

silhouette.

In addition, Detective Carroll tried to reenact defendant?s claimed route on

the night of the crimes by foot and by bicycle. His trip between Oakley Park and

defendant?s residence took seven and a half minutes by foot and nearly three

minutes by bicycle. His trip from defendant?s residence to the pay phone

defendant used to make the 911 call was four and a half minutes by foot and two

minutes by bicycle.

2. Defendant?s Case

Keith Gorman, a paramedic who arrived at Oakley Park on the night of

Sophia?s murder, observed a single set of bicycle tracks in the wet grass, which

were east of third base outside the dugout and ended on the adjacent street, near

the middle of the block.

Defendant?s younger brother, Mario Martinez, testified that sometime in

November 1996, defendant came home with a pager. Because the pager kept

ringing, defendant asked Mario to answer the page. When Mario called the

number, a girl answered and said it was her pager. Mario asked her what the pager

number was, got the number, told the girl she had paged the wrong number, and

then hung up. Defendant told Mario that he stole the pager from a girl at the La

Joya Plaza by snatching it from the outside of her pocket as she walked by. Mario

kept and used the pager for a few weeks, but later threw it away.

Francisco Javier Lopez testified he witnessed the assault of Maria M. in the

alleyway near the La Joya Plaza discount mall on November 3, 1996. While he

was parked in his truck, he saw what appeared to be a boyfriend and girlfriend

fighting, and the man was trying to stop the girl from entering the mall?s walkway

entrance. The girl made eye contact with Lopez, and he realized that she needed

help. Lopez activated his truck?s alarm manually, and the man appeared surprised

but reacted by pulling the girl out of Lopez?s view and into the alleyway.

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Carrying a heavy flashlight and his phone, Lopez exited his truck and approached

the alley. He saw them struggling halfway down the alleyway, where the man hit

the girl and then ran off. Lopez may have yelled at the man to let her go. He

called 911, and ran over to help the girl. The police arrived a few minutes later.

Lopez could not identify defendant as the assailant.

3. Prosecution Rebuttal

The prosecution presented evidence indicating that Maria M. deactivated

her pager on November 4, 1996, and that the pager would not have functioned

after that date. Because her pager was missing after the assault, Maria made one

call to her pager the very same day, and a young man called her back. She then

immediately called to have her pager disconnected, but the pager company could

not disconnect it until the next business day, which was Monday, November 4,

1996.

B. Penalty Phase

1. Prosecution?s Case

a) Prior Crimes

1) Robbery of an ice cream shop

On April 24, 1992, at the age of 14, defendant robbed a cashier at an ice

cream shop. On that date, Alicia Anaya was working at the Delicias de Mexico

ice cream shop at La Joya Plaza. Defendant entered the shop and demanded

money from Anaya. Before she gave him the money, the shop?s phone rang a few

times, and each time defendant picked up the phone and hung up. As he left the

shop with the money, he told Anaya that she was pretty and tried to reach for her

hand, but she blocked him.

A few days later, Anaya was working with her boss when she saw

defendant and another boy walking by the shop. Anaya told her boss that

16


defendant was the person who had robbed the shop. Her boss ran outside, but she

was only able to grab defendant?s companion. Later, the police took Anaya to a

house where she positively identified defendant as the person who had robbed the

shop. Defendant initially denied committing the robbery, but later admitted it,

claiming that a friend of his needed the money.

2) Burglary at a bread store

On September 1, 1993, at the age of 15, defendant was detained during an

investigation of a burglary at a bread store. Initially, defendant provided the

officer with false identifying information. The investigating officer noticed that

defendant?s right pants pocket was sagging, as if it contained something heavy.

The officer conducted a pat search and removed a dagger from defendant?s pocket.

3) Robbery of Pepe?s Liquors

On February 23, 1994, at the age of 16, defendant and a friend attempted to

rob Francisco Chavez at knifepoint. While Chavez was working at Pepe?s

Liquors, defendant and his friend entered the store. Defendant held a knife and

demanded money. Chavez refused and activated his silent alarm, and the store

received a phone call seconds later. While defendant and his friend were still in

the store, Chavez reported that he was being robbed. Defendant and his friend ran

off, but were stopped by a police officer.

The arresting officer did not find a knife, but defendant admitted his

involvement. Defendant stated that he did not intend to rob Chavez and that it was

a joke.

4) Knife possession

On April 22, 1995, at the age of 17, defendant encountered his probation

officer and a police officer at a community strawberry festival. In a probation

search, the officers found an unsheathed hunting knife tucked into defendant?s

waistband.

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5) The Alejandre incident

On April 2, 1996, at the age of 18, defendant was involved in an attack on

the Alejandre household. Willie Alejandre, then age 16, was at a friend?s house,

across the street from his own, drinking beer with some friends. An older man

approached Willie and began fighting with him, claiming that Willie had fought

his cousin. Willie ran off when he heard the older man call out to his friends for a

gun. Willie ran back home and was chased by a group of young men, including

defendant.

After Willie ran inside his home, he closed the door and told his mother,

Josephina, to call the police. The young men began pounding on the Alejandres?

front door and kicked it open. Defendant stood in the doorway and demanded that

Josephina ?hand over Willy.? When she refused, defendant threw a flower pot at

her, and the other young men threw flower pots through her windows. Defendant

also threw a beer can.

Josephina?s husband grabbed a hammer and began to chase away the young

men. A neighbor, Gabriel Resendez, also came outside with a baseball bat.

Defendant confronted Resendez with a broomstick and hit his truck with it.

As the police arrived, the young men ran off, but defendant was chased

down by a police officer and arrested. Despite being identified by the Alejandres

and their neighbor, defendant denied any involvement in the attacks.

b) Victim impact

1) Sophia Torres?s family

Sophia Torres?s older sister, Victoria Francisco, testified that Sophia?s

death seemed like a ?dream? to her and that it was difficult for her to realize that

she was dead. What hurt her most was thinking of ?all that [Sophia] went

through? and how she ?suffered that night? before her death. She remarked that

Sophia never harmed anyone.

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Sophia?s oldest brother, Gilberto Torres, testified that Sophia lived with

him in Phoenix for a time. Sophia had problems and was a shy person, but he had

hoped that she would one day return to her normal self and become an

independent, hard-working person again. When Gilberto attended her funeral and

opened her casket, he could not recognize her face. He thinks about Sophia every

day, ?especially for the brutal way she died.?

Sophia?s father, Angel Torres, often thought of Sophia, ?felt her death very

deeply,? and explained that his family ?never had such a case.? It was not fair for

Sophia to have had that ?stroke of luck? because she was not a bad person and

never harmed anyone.

2) Maria M.

Maria M. testified that, in the first two weeks following defendant?s assault,

she would become frightened when a man came near her, but, little by little,

eventually overcame this fear. Whenever she is out alone or with a friend,

however, she is still afraid of encountering young men who look like defendant.

She used to love chocolates, but can no longer eat or smell Snickers bars because

they evoke her memory of the assault. Since the incident, Maria?s mother is also

very afraid and worries about her.

3) Sabrina P.

Sabrina noted that she has become very nervous around men as a result of

defendant?s assault. She recounted an incident a week after her assault where she

encountered a male customer at the clothing store where she worked. It was near

closing time and the store was empty except for her and a fellow sales clerk. The

man was wearing gloves and asked Sabrina if she could help him find a pair of

jeans for his girlfriend even though he did not know her size. Sabrina thought this

was weird and became frightened, thinking he wanted to hurt her. She then

19


panicked, walked to the back of the store, and asked the other sales clerk to help

the man.

Because of defendant?s assault, Sabrina changed her habits and is now

more aware of her surroundings.

c) Conduct while in custody

While defendant was awaiting trial on this case, on March 21, 1998, a

correctional officer at the Santa Barbara County Main Jail in Goleta found a

handmade knife, sharpened from the handle of a plastic eating utensil, hidden in

his cell. According to the officer, a knife is considered ?critical? contraband and

poses a safety hazard to both inmates and officers.

2. Defendant?s Case

a) Defendant?s family history

Defendant?s parents, Eva Martinez and Tommy Martinez (Tommy Sr.), met

in Santa Maria when he was 15 years old and she was 13. Tommy Sr. and many

of his siblings had problems with alcohol. Although Eva?s father objected to her

relationship with Tommy Sr., her parents forced them to marry when Eva became

pregnant with defendant at the age of 16. On October 10, 1977, defendant was

born. Their second son, Isaac, was born on February 27, 1979.

When defendant was nearly a year old, Tommy Sr. was incarcerated for

rape and he remained largely absent from defendant?s early childhood due to

repeated violations of his parole. Defendant, however, developed a close bond

with his maternal grandmother, Dorothy. In brief periods in which Tommy Sr.

was in the household, he and Eva had numerous arguments in front of the boys,

some of which became physical.

At school, defendant initially had difficulty keeping up with the other

children and had to repeat kindergarten, but did well in first grade. Tommy Sr.

and Eva also had a third son, Mario. Although Tommy Sr. would often go to bars

20


and stay out late on work nights, on weekends he would take the boys bike riding,

which they enjoyed.

In 1987, when defendant was 10 years old, Tommy Sr. began having an

affair with a woman who lived across the street from their house, and he

eventually moved out to live with her. Before he moved out, Eva became

pregnant with their fourth child, Angel, but that did not deter Tommy, Sr. from

leaving. He said goodbye to his children and left the household.

The couple?s fourth son, Angel was born on November 20, 1987. Soon

after, defendant?s grandmother, Dorothy, was killed in a car accident. At the end

of 1988, Tommy Sr. entered a rehabilitation center for alcoholics, but later secretly

moved to Oklahoma. He did not maintain any contact with defendant?s family for

an entire year. The death of his grandmother and the disappearance of his father

upset defendant and made him feel lonely.

Around this time, defendant began spending time with the family of

Tommy Sr.?s brother, Rick Martinez. Rick often brought defendant to church

where he related well with other children in his youth group.

During this period, defendant began to get into trouble. At the age of 12,

defendant and his brother Isaac were arrested for stealing cassettes from a

department store, but were not prosecuted. Defendant also started doing poorly in

the seventh grade and began skipping school. Eva did not encourage him to go to

school. In fact, on days when she was feeling depressed, Eva would pick up

defendant from school in the middle of the day and take him with her to lunch and

shopping.

Also around this time, defendant began inhaling solvents. Eva once caught

defendant and his cousin sniffing glue in his bedroom. She also repeatedly found

around the home bottles of glue and bags that had paint sprayed into them so the

fumes could be inhaled from the bags. She tried to warn defendant not to inhale

21


solvents because they would affect his brain. Defendant also began using

methamphetamines, marijuana, and alcohol.

At the end of eighth grade, defendant was expelled and stopped attending

school, but was forced to return after he was placed on probation for the ice cream

shop robbery.

In 1990, Tommy Sr. returned to Santa Maria, but was soon placed in prison

for two years for fighting and drunk driving. During this period, Tommy Sr. and

Eva divorced, and he remarried. While he was in prison, Tommy Sr. and

defendant exchanged letters, and defendant confided in his father that he was

?getting high.? Tommy Sr. counseled him against using drugs, and wanted to get

defendant out of Santa Maria because of local gangs.

After the robbery of the liquor store, the juvenile court sent defendant to

Los Prietos Boys Camp, the same camp his father had been sent to as an

adolescent. Defendant eventually fled the camp and returned home. His mother

sent him to Northern California, where he lived with his uncle Louie for three

months. While there, defendant developed an intimate relationship with Louie?s

stepdaughter. Defendant returned to Santa Maria with Louie?s stepdaughter,

hoping they would both be able to stay with his mother, but she disapproved of the

relationship and notified the authorities, who then brought defendant back to the

camp. By then, his brother Isaac had also been sent to the same camp.

Defendant and Isaac fled the camp and stayed at their father?s residence in

Simi Valley for one day. The next day, Tommy Sr. tried to return them to their

mother?s residence, but on the way to Santa Maria, Tommy Sr. was stopped and

arrested for drunk driving and served four years in prison as a result.

As the eldest brother, defendant had a very close relationship with his

youngest brother, Angel, whom he cared for like a father. Defendant taught Angel

how to play baseball, took him bike riding, and picked him up from school.

22


Defendant had similar relationships with his cousins from his uncle Rick?s family

and had a positive influence on them as well.

During his middle adolescence, ages 15 to 17, defendant had four serious

girlfriends. With his mother?s permission, at various times, two of them lived at

the household and stayed in defendant?s room. Defendant?s ex-girlfriends all

described their relationships with defendant as intimate and loving. Defendant

wrote them poetry. None of them experienced any violence from defendant or any

abnormal sexual behavior.



b) Defendant?s mental health

Dr. Peter Russell, a neuropsychologist, gave defendant a series of

standardized tests as part of a neuropsychological evaluation. Before testing

defendant, Dr. Russell reviewed his school records, medical records, arrest reports,

and other legal records.

On the Wechsler Adult Intelligence Scale, defendant scored an overall IQ

of 107, equivalent to the 68th percentile, within the normal range of intelligence.

Defendant performed within the normal range in both his immediate verbal and

visual memory tests. He also performed exceptionally well on some of his

nonverbal visual organizational skills tests and other visual perception and visual

memory tests. Dr. Russell?s tests showed no indications that any of defendant?s

memory or sensory functions were impaired.

Dr. Russell?s testing, however, revealed a discrepancy between defendant?s

verbal ability, which tested at the 45th percentile, and his nonverbal ability, which

tested at the 90th percentile. Dr. Russell believed that this discrepancy could

reflect a problem with the English language itself, difficulty with language-related

reasoning ability, auditory processing problems, or defendant?s education level,

which was the equivalent of an eighth- or ninth-grade education. He also

acknowledged that the discrepancy could be the result of antisocial personality

disorder, but did not test defendant for any personality disorders.

23




Dr. Russell also believed that defendant may have neurological problems

because, although he is right-handed, he performed finger tapping tests better with

his nondominant left hand. Dr. Russell acknowledged, however, that defendant

may have performed poorly on this test because he had previously suffered a

dislocated shoulder, an injury that often results in residual nerve impingement.

In addition, defendant performed atypically on the trail-making test, which

required him to draw a line connecting randomly distributed circles, first in

alphabetical order and then in alphanumeric order. Although defendant made no

mistakes, he performed the easier alphabetical ordering slower than normal, and

the more difficult alphanumerical ordering at a normal speed. Dr. Russell believed

this discrepancy could also indicate neurological problems.

Based on the test results, Dr. Russell believed defendant may have

neurological impairment in his anterior frontal lobe, especially the right frontal

lobe. According to Dr. Russell, the frontal lobe is the part of the brain important

for responsiveness, abstract reasoning, the ability to react to stimuli, and to

interpret sensory information from other pathways. People with frontal lobe

damage can have difficulty controlling impulses.

Dr. Russell was uncertain as to the cause of defendant?s impairment, but

noted that defendant?s hospital emergency room records reflected he may

have suffered head trauma as a result of a fall during a police chase. In addition,

he noted that methamphetamine and inhaling solvents are known to cause

neurological damage and that defendant?s use of solvents coincided fairly closely

with the time he quit going to school.

Dr. Russell acknowledged that defendant?s shoulder injury and his poor

school performance could have contributed to his lower scores in some verbal and

motor skills tests, but he believed these conditions could not explain all of his test

results. He also explained that persons with normal IQ scores can still suffer from

brain damage because the IQ test is a measure of global functioning and does not

24


target a specific part of the brain. Therefore, Dr. Russell ordered a positron

emission tomography scan, or PET scan, which is essentially an x-ray imaging of

the brain, to see whether defendant?s brain functioned abnormally.

Dr. Joseph Wu, Clinical Director of the Brain Imaging Center and

an associate professor in the College of Medicine at University of California

at Irvine, performed a PET scan on defendant. A PET scan is designed to reveal

brain functioning in a conscious patient. In a PET scan, the patient is given a

radioactive sugar that is designed to be consumed by active portions of the brain.

The PET scan can detect different levels of the radioactive sugar as parts of the

brain switch from being relatively inactive to active while the patient is asked to

perform standardized tasks. In this fashion, the PET scan can present a recorded

visual map of brain activity. According to Dr. Wu, although the usefulness of

PET scans has been questioned, he believed the medical community now

considers PET scans to be an accurate and reliable test of brain function and brain

activity that can be useful in evaluating conditions created by inhalant exposure.

In Dr. Wu?s opinion, defendant?s PET scan revealed brain abnormalities

consistent with neurological damage from inhaling solvents. According to Dr.

Wu, defendant had an unusually low degree of activity in the front part of his brain

? in particular, the parietal lobe area and in his orbital frontal cortex.

Consequently, defendant?s brain activity was the reverse of a normal functioning

pattern, with more activity in the back of his brain. According to Dr. Wu, this

reversal can occur as undamaged parts of the brain increase their activity to try to

compensate for damaged portions.

Dr. Wu believed that defendant?s abnormalities were consistent with frontal

lobe syndrome, which can result in poor judgment, inappropriate behavior, and an

inability to defer gratification and control inappropriate aggressive impulses.

These abnormalities can also result in impulsive decisionmaking without

considering long-term consequences. He also believed the abnormalities could

25


result in decreased control or regulation of emotions or aggression as well, but

would not hinder the ability to have normal emotions, including compassion.

Dr. Wu thought his findings of brain damage correlated with Dr. Russell?s

neuropsychological evaluation. Dr. Wu explained that inhaling solvents can

dissolve fatty protective tissues in the brain. He noted that exposure to solvents

does not necessarily diminish a person?s intelligence, but exposure during

adolescence would affect the maturation of the frontal lobe, causing problems with

impulsivity and poor judgment. The use of marijuana, alcohol, and

methamphetamines by a person who also used solvents would further diminish

that person?s inhibitions and behavioral control. Dr. Wu believed defendant

would be able to control his behavior if he were in a highly structured setting like

a state prison.

c) Adjustment potential

James Esten, a retired correctional consultant, testified that defendant, if

sentenced to life without the possibility of parole, would be assigned to a

maximum security ?level 4? prison.

Esten reviewed defendant?s records related to the present case, records from

Los Prietos camp, and interviews of staff at that camp, county jail, and juvenile

hall. Esten also interviewed defendant on several occasions in order to assess his

maturity level and his ability to function within a maximum security prison

setting.

When Esten initially interviewed him, defendant did not believe he could

adequately adjust to a long-term prison commitment. But after his trial and

conviction, defendant?s attitude changed. Esten believed defendant had matured

enough to make the changes required for prison life.

In making this assessment, Esten discounted incidents at the Los Prietos

Boys Camp where defendant was ?mad-dogging? a female camp counselor and

drew an inappropriate picture of her being sexually assaulted by a dog. Esten also

26


downplayed an incident in which defendant had conspired with other boys to

assault another boy, which resulted in defendant being expelled from the camp.

Esten believed that these behaviors reflected defendant?s lack of maturity at the

time and the need to impress a peer group, but testified that prison inmates tend

to warn each other about this type of immature behavior. Esten also downplayed

the significance of the plastic eating utensil found in defendant?s cell while he

awaited trial. Esten did not believe the item should have qualified as a weapon

and would have been more concerned if it had been a sharpened piece of metal.

Esten was concerned about defendant?s past methamphetamine use, which he

believed was a factor in the present case, but pointed out that it was not possible

for a prison inmate to maintain a methamphetamine habit.

Esten also thought it positive that many of the interviewees in the reports he

read could not clearly remember defendant, which suggested defendant blended in

and did not stand out in a bad way. On cross-examination, however, Esten

acknowledged that defendant had been the subject of numerous disciplinary write-

ups on almost a daily basis while he was at Los Prietos, and many of the

interviewees believed defendant was not trustworthy.

Esten also believed that defendant was intelligent and capable of being

productive in prison by completing his high school education, becoming a

teacher?s aide or clerical assistant, and showcasing his artistic skills, and as a

?lifer? might serve as a mentor for younger inmates and exercise a stabilizing

influence in prison culture. He did not believe defendant was interested in joining

a prison gang or would succumb to any pressure to join, even though defendant

had claimed gang membership as a juvenile.

On cross-examination, Esten acknowledged that until January 1998, lifers

were allowed to marry and have conjugal visits, and that such regulations could

change again based upon the political leanings of a future state governor. He also

27


acknowledged that prison gangs are a problem and that it is well documented that

initiation into a prison gang may require a killing as a rite of passage.

3. Prosecution?s Rebuttal

Workers from the Los Prietos Boys? Camp, including Kim Herman,

testified about their observations of defendant at the camp. They all characterized

defendant as a continuous disciplinary problem due to his disruptive behavior and

his refusal to follow staff instructions, particularly those given by female staff

members. Defendant was untrustworthy, openly invoked his gang membership,

and was an influential ringleader in fostering group defiance and instigating fights.

Herman also provided further details concerning the drawing defendant had

made of her and her pet dog, Jack, who lived at the camp. The drawing was of a

naked woman on her hands and knees with a dog standing behind her attempting

sexual intercourse. A caption read, ?Bitch, no wonder you can?t get a man. It?s

cause you are into doggie style and when I say it I mean it. I would give you dick

but I will probably catch Jack disease.? A caption under that read: ?Mrs. Herman,

also known as Broadzilla.? Herman discovered the drawing after it had been

anonymously placed on a staff counter. Defendant admitted he had drawn the

picture only after staff threatened to punish the entire group when no one took

responsibility. After Herman disciplined defendant, he stared at her

intimidatingly, or ?mad-dogged? her, on more than one occasion. She also noted

defendant did get along with a few other boys, but would intimidate or exert peer

pressure on weaker boys.

Richard Diaz was defendant?s probation officer for two and a half years.

He described defendant as emotionless, often being quiet and ?flat.? He testified

that defendant admitted to using alcohol, marijuana, and methamphetamine, but

never mentioned inhaling solvents, and Diaz never saw indications of solvent use.

Defendant?s family members made no mention of defendant inhaling solvents.

28




Diaz believed defendant became a member of the West Park street gang

when he was 14 or 15 years old, and went by the gang moniker of ?Lonely Boy.?

As far as Diaz was aware, defendant never ended his involvement in the gang.

While under Diaz?s supervision, defendant repeatedly violated the terms and

conditions of his probation and was unable to conform to either house arrest or

electronic monitoring.

Two correctional officers testified about defendant?s behavior in jail

pending trial in the present case. They both described him as being unwilling to

follow rules and orders, often taking his own time in doing what he was asked.

Dr. David Frecker, a Santa Barbara neurologist, disagreed with Dr. Wu?s

findings regarding defendant?s PET scan. Although he acknowledged he is not as

familiar with PET scanning as Dr. Wu, Dr. Frecker believed Dr. Wu had

misinterpreted one of the scans by confusing the front portion of defendant?s

frontal lobe with an area outside defendant?s brain, his sinus cavities, where the

PET scan would not have detected any activity. Dr. Frecker believed that any

other abnormalities in defendant?s PET scan were all artifacts created by a

misalignment of defendant?s head with the scanner.

Dr. Frecker also disagreed with Dr. Wu?s ?baffling? theory that inhalant

use exposes the brain to solvents that could result in demyelinization, the

dissolution of fatty protective tissue in the brain. Dr. Frecker testified that inhalant

use would damage the brain by depriving it of oxygen only after long-term daily

use over several months, or possibly years, and that the damage would be limited

to areas of the brain that are sensitive to the lack of oxygen, such as the temporal

lobe, which otherwise appeared normal in defendant?s case. On cross-

examination, however, Dr. Frecker admitted that it is well documented that ?a lot?

of the brain damage caused by inhaling solvents is the result of demyelinization.

He believed that long-term inhalant use typically would cause a person to become

docile and withdrawn. He also concluded a PET scan was an unreliable predictor

29


of an individual?s behavior because changes in brain functioning are too dynamic

to be captured by a single series of PET scans.

4. Defense Surrebuttal

Based upon two additional reports made while defendant was in the

juvenile system, James Esten believed that defendant can become compliant when

faced with an ?appropriate authority figure?? in particular, a person ?who knows

how to handle himself and is properly skilled in the handling of minors.? Two

months prior to his testimony, Esten visited defendant, discussed his disciplinary

history, and told defendant ?to knock off that kind of shit.? After his meeting,

defendant remained discipline free during that period, with the exception of a

single incident when he was disciplined for continuous talking in the hallway

while awaiting bus transportation. According to Esten, when presented with

strong guidelines, defendant has the potential to adjust as a life prisoner without

possibility of parole.

Dr. Wu disagreed with Dr. Frecker?s assertion that the PET scan image he

reviewed showed sinus material, as that would have appeared black on the scan,

instead of the blue color that appears. He also reviewed the PET scan technician?s

notes and did not find any error in the alignment of defendant?s skull when the

scan was performed. Dr. Wu noted that he had reviewed 30 times as many PET

scans as Dr. Frecker, and unlike Dr. Frecker, has published many articles on the

subject.

II. PRETRIAL ISSUES

A. Failure to Conduct an Inquiry into Possible Juror Bias



1. Factual Background

During jury selection, Prospective Juror No. 684037, who was later

empanelled and selected as foreperson, stated in her juror questionnaire that she

was a lead clerk in the Santa Barbara County Probation Department at Santa

30


Maria?s juvenile hall and had worked there for 20 years. In her questionnaire,

Juror No. 684037 stated she recognized defendant?s name because ?he had been

at? juvenile hall.

During the initial voir dire of Juror No. 684037, however, the parties did

not question her about her employment or knowledge of defendant. Instead, they

focused on her views concerning the death penalty. She stated that if defendant

were found guilty of murder and special circumstances, she probably would lean

towards the penalty of death before hearing any evidence at a penalty phase.

Later, in response to questioning by the court, she said she would be able to follow

the law and consider both a life sentence and the death penalty before she reached

a verdict in the penalty phase.

Defense counsel challenged Prospective Juror No. 684037 for cause,

claiming that she was biased in favor of the death penalty and that she appeared to

hesitate when she told the court that she could consider either penalty before

reaching a verdict. The trial court denied the challenge.

Later, defense counsel informed the court that he wanted to question

Prospective Juror No. 684037 about her knowledge of defendant based upon one

of her answers in her juror questionnaire, and the trial court agreed. When asked,

Juror No. 684037 said it would be difficult for her to serve on the jury because she

knew the defendant and because of the severity of the charges.

The court then excused the other prospective jurors from the courtroom, so

the court could question Juror No. 684037 confidentially. Juror No. 684037

explained she was ?totally aware? that defendant ?had an extensive juvenile

record,? and indicated she believed defendant had not made good choices in his

life. She did not know so much about defendant that it would affect her ability to

be impartial, however. Her job at juvenile hall was primarily clerical, and she

supervised children while they were waiting for their court interviews. She did not

know anything about defendant?s family background and, although she must have

31


interacted with defendant while performing her duties at juvenile hall, she did not

remember anything specific about him.

Defense counsel again challenged Prospective Juror No. 684037 for cause,

arguing that, although it did not appear that she knew the precise nature of

defendant?s juvenile record, she nonetheless knew that ?he did something to get

put in juvenile hall, and that?s not knowledge that a juror should properly have?

for the guilt phase of the trial. The prosecutor argued that Juror No. 684037 had

made clear that her knowledge of defendant would not influence her and that her

situation was similar to that of someone who had read about the case in the

newspaper, but is able to put that information aside and decide the matter on the

evidence presented at trial. The trial court denied the challenge.

The following day, on May 12, 1998, Prospective Juror No. 684037 was

sworn in as Juror No. 12, with trial scheduled to begin a week later.

Sometime between May 12 and May 15, 1998, Juror No. 12 had contact

with District Attorney Investigator Tom Barnes. According to a memorandum

from Barnes to the prosecutor dated May 15, 1998, Barnes called the Santa Maria

juvenile hall in an attempt to locate defendant?s juvenile disciplinary reports and

spoke with Juror No. 12. Juror No. 12 informed Barnes that, according to her

supervisor, Barnes needed a court order to access those reports. Barnes consulted

with a deputy district attorney, and, less than 30 minutes after their first

conversation, he again called and spoke with Juror No. 12. At that time, Juror No.

12 admitted to Barnes that she was a juror on defendant?s case, and Barnes told

her that he thought it was ?unusual that one side or the other hadn?t excused her.?

According to Barnes?s memo, Juror No. 12 ?somewhat jokingly, then asked [i]f I

could get her off the jury,? and Barnes responded he could not, and ended the call.

Barnes later called back Juror No. 12 and told her ?it would be improper for her to

be involved in this matter any further? and asked to speak with her supervisor.

32


According to Barnes?s memo, he was put in contact with another worker for

further assistance.

On May 19, 1998, just before opening arguments, the parties discussed

Barnes?s contact with Juror No. 12 at an in camera proceeding. The prosecutor

explained that the contact was inadvertent, as Barnes?s aim in calling juvenile hall

was to locate defendant?s disciplinary reports. Defense counsel agreed the contact

was innocent, but expressed concern about Juror No. 12?s comment about wanting

to get off the jury. Defense counsel asked the court to inquire whether Juror No.

12 was ?willing and able and fit for further duty in light of the comment.?

The trial court denied the request, reasoning that Juror No. 12?s comment

merely reflected ?a normal desire not to be a juror? and did not relate to her

qualifications as a juror. As the trial court put it, if the court required an inquiry of

Juror No. 12, ?she?d just tell us she doesn?t want to be here . . . and so would the

[other] 14, 13 [jurors], if we could ask them.?

Juror No. 12 later became the foreperson during the guilt phase jury

deliberations.

Defendant claims that the trial court abused its discretion by failing to

conduct an inquiry into Juror No. 12?s contact with Barnes and that this alleged

error resulted in a biased juror sitting on his case, thereby prejudicially influencing

his guilt and penalty phase verdicts. Defendant further argues that, based upon her

voir dire, the court was already ?on notice? that Juror No. 12?s competency was in

doubt and that Barnes? declaration, therefore, triggered a duty to conduct an

inquiry. He argues this failure undermined his right to due process and a fair and

reliable sentencing determination by an impartial jury, in violation of his rights

under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, and article I, sections 7, 16, and 17 of the California Constitution.

33


2. Analysis

Section 1089 provides in part: ?If at any time . . . a juror dies or becomes

ill, or upon other good cause shown to the court is found to be unable to perform

his or her duty, or if a juror requests a discharge and good cause appears therefor,

the court may order the juror to be discharged . . . .? In construing this statute, we

have held that ? ?[o]nce a trial court is put on notice that good cause to discharge a

juror may exist, it is the court?s duty ?to make whatever inquiry is reasonably

necessary? to determine whether the juror should be discharged.? ? (People v.

Leonard (2007) 40 Cal.4th 1370, 1409, quoting People v. Espinoza (1992) 3

Cal.4th 806, 821; see also People v. Burgener (1986) 41 Cal.3d 505, 520,

overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)

?But not every incident involving a juror?s conduct requires or warrants

further investigation. ?The decision whether to investigate the possibility of juror

bias, incompetence, or misconduct ? like the ultimate decision to retain or

discharge a juror ? rests within the sound discretion of the trial court.? ? (People

v. Cleveland (2001) 25 Cal.4th 466, 478, quoting People v. Ray (1996) 13 Cal.4th

313, 343.) ? ?[A] hearing is required only where the court possesses information

which, if proven to be true, would constitute ?good cause? to doubt a juror?s

ability to perform his duties and would justify his removal from the case.? ?

(Ibid.)

Defendant complains a hearing was necessary in order to determine

whether Juror No. 12 wanted to get off the jury due to her knowledge that

defendant had a juvenile record, her belief that he had made poor choices, or the

severity of the charges. Defendant argues these factors also may have caused her

34


to question whether she could remain an impartial juror, and thus caused her to ask

Barnes for assistance in being removed from the case.5

We disagree. The mere fact that Barnes contacted Juror No. 12 does not,

by itself, constitute ?good cause? that cast doubt on her ability to serve as a juror.

Barnes did not give Juror No. 12 any additional information about defendant?s

case, and the contact was inadvertent. ?The court does not abuse its discretion

simply because it fails to investigate any and all new information obtained about a

juror during trial.? (People v. Ray, supra, 13 Cal.4th 313, 343.)

Moreover, the areas into which defendant claims the court should have

investigated either had already been covered during the voir dire of Juror No. 12

or simply were not relevant to her ability to be impartial. During voir dire, she

explained that her contact with defendant had been limited and unremarkable and

that she had no knowledge of him that would interfere with her ability to be fair

and impartial. The fact that she regarded the charges as severe is unremarkable

considering the nature of the case and given that, at the time, Santa Maria had not

had a death penalty prosecution in 10 years. Nothing in her statements to Barnes

implied her beliefs had changed since the parties questioned her during voir dire.


5

In support of this claim, defendant also discusses in detail the fact that the

trial court did conduct an inquiry as to another juror, Juror No. 6. But the court?s
handling of Juror No. 6 is distinguishable from the situation presented by Juror No
12. According to a police report, Juror No. 6 told a police officer that she had
received a harassing phone call and believed it may have been connected to
defendant?s case as an attempt to intimidate her. The court conducted an inquiry,
and it appeared that the phone call was unrelated to defendant?s case. At the
hearing, Juror No. 6 explained that she thought it would not affect her impartiality.
Given that the police report stated Juror No. 6 believed the call was intimidating
and related to the instant case, this was clearly the kind of matter that would affect
a juror?s impartiality, and ? ?once a juror?s competence is called into question, a
hearing to determine the facts is clearly contemplated.? ? (People v. Sanders
(1995) 11 Cal.4th 475, 540.)

35


Instead, she merely made a light-hearted inquiry as to whether she could be

removed from jury service.

Defendant also argues the trial court should have conducted an inquiry

because Barnes?s contact with Juror No. 12 may have reinforced her knowledge of

defendant?s juvenile record. But defendant did not raise this issue before the trial

court. Instead, he only questioned why she had expressed the desire to get off the

jury ? a desire, as the trial court correctly pointed out, that any juror might

possess.

Even if defendant had preserved this issue, the claim would lack merit,

as does his claim that the trial court was ?duty bound? to conduct an inquiry,

because defendant fails to present evidence of actual bias on the part of the

juror. ? ?Before an appellate court will find error in failing to excuse a seated

juror, the juror?s inability to perform a juror?s functions must be shown by the

record to be a ?demonstrable reality.? The court will not presume bias, and will

uphold the trial court?s exercise of discretion on whether a seated juror should be

discharged for good cause under section 1089 if supported by substantial

evidence.? ? (People v. Jablonski (2006) 37 Cal.4th 774, 807, quoting People v.

Holt (1997) 15 Cal.4th 619, 659.) The record before us does not show that Juror

No. 12?s interaction with Barnes caused her to learn more about defendant?s

juvenile record. Therefore, defendant fails to show that she was unable to fulfill

her functions as a juror. (Jablonski, at p. 807.) Accordingly, we find no prejudice

in the trial court?s decision not to investigate further and to retain Juror No. 12.6


6

Since we find no violation of section 1089, a statute that we have

previously held is consistent with state and federal constitutional proscriptions, our
conclusion also necessarily disposes of defendant?s state and federal constitutional
claims. (People v. Leonard, supra, 40 Cal.4th 1370, 1410.)

36


B. The Admissibility of Defendant?s Confessions

Before trial, defendant filed a motion challenging the admissibility of his

statements to police under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda),

and the prosecution opposed the motion. The trial court held an evidentiary

hearing, heard arguments, and ultimately rejected defendant?s Miranda claims.

He renews these arguments on appeal, claiming that (1) he invoked the right to

remain silent on the night of his arrest, and the police failed to honor that right by

questioning him the following morning; (2) he again invoked the right to remain

silent during police questioning that morning, and the police failed to honor that

right by questioning him later that day; and (3) he invoked the right to counsel

later that same evening, and the police failed to honor that right. We conclude the

trial court properly rejected these contentions.

1. Factual Background

In determining the admissibility of defendant?s statements to police, the

parties presented the following evidence:

On the night of December 4, 1996, after defendant assaulted Sabrina P. and

she positively identified him as her attacker, Santa Maria Police Officer Jeff Lopez

arrested defendant and transported him to the police station.

In an interview room, Officer Lopez advised defendant of his Miranda

rights. Defendant said he understood his rights and was willing to talk with

Officer Lopez. Officer Lopez questioned defendant about Sabrina P.?s assault, but

defendant denied any involvement. Officer Lopez pointed out inconsistencies in

defendant?s story. After about 10 minutes, Officer Lopez asked defendant why

Sabrina would accuse him of an assault, and defendant responded, ?That?s all I

can tell you.? Officer Lopez then ended the interrogation.

The following morning, about 10:00 a.m., Detectives Gregory Carroll and

Mike Aguillon spoke with defendant in a police interview room. The

interrogation was tape-recorded. Before the interrogation, Detective Carroll was

37


aware that Officer Lopez had read defendant his Miranda rights and that defendant

had waived them. Detective Carroll, however, was unaware that defendant had

said, ?That?s all I can tell you? at the end of Officer Lopez?s interrogation.

At the beginning of the interrogation, Detective Carroll asked defendant if

he remembered ?the officer who read you your rights last night,? and defendant

replied, ?Yeah.? Detective Carroll then asked if he remembered ?those rights and

do you still understand them and everything?? Defendant again replied, ?Yeah.?

Detective Carroll asked defendant if he still wanted to talk with the detectives, and

defendant answered, ?Yeah.?

The detectives then briefly questioned defendant about Sabrina?s assault

before taking a short break so they could compare the recording of defendant?s

voice with the 911 call recording of the man who reported the assault of Sophia

Torres. After the detectives returned to the interview room, they began

questioning defendant about Sophia?s murder.

Defendant admitted making the 911 call but denied killing Sophia, instead

claiming he saw two Black women attacking her as he was meeting her to buy

methamphetamine. Toward the end of the interrogation, the detectives pointed out

the inconsistencies in defendant?s version of events. Detective Aguillon asked

defendant to ?think about it? and told him, ?We?ll let you take a break here now.?

As everyone stood and prepared to leave, the tape recorder was turned off.

Defendant then said, ?I don?t want to talk anymore right now.? Detective Carroll

said that was fine, they were going to take a break. He again suggested defendant

should ?think about it,? and said they would return to talk with him. According to

Detective Carroll, defendant responded, ?Okay.?

Later that afternoon, about 5:00 p.m., Detectives Carroll and Aguillon

returned to pick up defendant and execute a search warrant by bringing him to the

community hospital for a sexual assault response team (SART) exam. As they

drove to the hospital, Detective Carroll asked defendant if he had been thinking

38


about their earlier conversation, and defendant replied, ?Not really.? The

detectives then asked defendant to repeat his version of what he saw on the night

of Sophia?s murder, and defendant again claimed he saw two women attacking

Sophia.

After the SART exam, the detectives returned defendant to the police

station, where they again brought him to an interview room for an interrogation.

This interrogation was partially tape-recorded.7 The detectives again went over

defendant?s version of events on the night of Sophia?s murder and confronted him

with the fact that both Maria M. and Laura Z. had identified him as their attackers

in photo lineups earlier that day. During the interrogation, which lasted 30 to 45

minutes, the detectives repeatedly told defendant they did not believe his story

about Sophia being attacked by two women. But defendant did not change his

story.

At the end of the interrogation, Detective Carroll told defendant to think it

over and, as the detectives got up to leave, Detective Aguillon asked defendant if

he was willing to take a polygraph examination. Detective Aguillon said he could

have someone there in five minutes to administer the examination. Defendant

replied, ?I think I should talk to a lawyer before I decide to take a polygraph.?

The detectives did not ask defendant about the case again until the

following morning, December 6, 1996, about 9:00 a.m. The detectives

approached defendant in his holding cell and asked if he would mind if they talked

to him. Defendant replied ?No? and shrugged his shoulders. During the

subsequent conversation, defendant admitted assaulting both Sabrina P. and Maria

M., but denied any involvement in the incident involving Laura Z.


7

The tape ran out before the end of the interrogation.

39




The prosecutor also presented evidence that defendant had previously

waived his Miranda rights on three different occasions when he was arrested as a

juvenile. When Officer Jorge Lievanos arrested defendant as an adult for the

assaults he committed on April 2, 1996, however, he initially waived his Miranda

rights, but later invoked his right to remain silent by saying, ?I have nothing more

to say.?

In the trial court, defendant challenged the admissibility of his statements

under Miranda and the Fifth, Sixth, and Fourteenth Amendments. Specifically,

defendant argued he invoked his right to remain silent at the end of Officer

Lopez?s interrogation when he said, ?That?s all I can tell you.? Defendant argued

that his right to remain silent was not honored when Detectives Carroll and

Aguillon interrogated him the following morning. Defendant further argued he

invoked his right to remain silent a second time when, at the end of the first

interrogation by Detectives Carroll and Aguillon, he said, ?I don?t want to talk

anymore right now,? and the detectives failed to honor that invocation by

questioning him again later that day. Finally, defendant argued he invoked his

right to counsel during the second partially recorded interrogation later that same

night when he stated, ?I think I should talk to a lawyer before I decide to take a

polygraph.?

After a hearing, the trial court rejected defendant?s arguments. The court

concluded that defendant?s statement to Officer Lopez was not an attempt to

invoke the right to remain silent, but was merely defendant?s way of saying he was

?sticking to? his version of events regarding Sabrina?s assault. The court

concluded that defendant?s statement to Detectives Carroll and Aguillon about his

desire not to ?talk about it anymore right now? was simply an expression of the

desire not to discuss the matter at the moment and was not intended as a bar to

later questioning. Finally, the court concluded that defendant, in discussing the

polygraph examination, was only conditioning his invocation of the right to

40


counsel on whether he was going to take the exam ? a condition that was never

satisfied.8

Defendant renews these same arguments on appeal. We conclude the trial

court properly rejected defendant?s arguments and did not err in admitting all of

his statements at trial.

2. Applicable Law

As a prophylactic safeguard to protect a suspect?s Fifth Amendment

privilege against self-incrimination, the United States Supreme Court, in Miranda,

required law enforcement agencies to advise a suspect, before any custodial law

enforcement questioning, that ?he has the right to remain silent, that anything he

says can be used against him in a court of law, that he has the right to the presence

of an attorney, and that if he cannot afford an attorney one will be appointed for

him prior to any questioning if he so desires.? (Miranda, supra, 384 U.S. 436,

479; see Connecticut v. Barrett (1987) 479 U.S. 523, 528.) If the suspect

knowingly and intelligently waives these rights, law enforcement may interrogate,

but if at any point in the interview he invokes the right to remain silent or the right

to counsel, ?the interrogation must cease.? (Miranda, at p. 474; see id. at pp. 444-

445, 473-475, 479.)

In Davis v. United States (1994) 512 U.S. 452 (Davis), the United States

Supreme Court explained that to invoke the right to counsel during an


8

In ruling on defendant?s Miranda claims, the trial court quoted defendant as

having said, ? I don?t want to talk about it anymore right now,? and ?I think I need
to talk to my lawyer before I take a polygraph.? These quotations differ slightly
from the quotations Detective Carroll reported at the Miranda hearing. Since
Detective Carroll quoted defendant?s statements using notes he took at the time of
defendant?s questioning, we rely on his version of defendant?s statements. In any
case, these minor discrepencies do not undermine the validity of the trial court?s
ruling.

41


interrogation, a suspect must ?articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.? (Id. at p. 459.) ?If the

suspect?s statement is not an unambiguous or unequivocal request for counsel, the

officers have no obligation to stop questioning him.? (Id. at pp. 461-462.)

Although ?when a suspect makes an ambiguous or equivocal statement it will

often be good police practice for the interviewing officers to clarify whether or not

he actually wants an attorney,? the high court specifically declined to adopt a ?stop

and clarify? rule that would require officers to ask clarifying questions about

whether the right was being invoked. (Id. at p. 461.)

In the absence of any contrary authority from the high court, we have also

applied Davis?s articulation standard to ambiguous statements made in the context

of a suspect?s invocation of the right to remain silent. 9 As we stated in People v.


9

A plurality of state courts, and at least five of the 11 federal circuit courts,

have specifically applied Davis to invocations of the right to remain silent.
(McGraw v. Holland (6th Cir. 2001) 257 F.3d 513, 519; United States v. Banks
(7th Cir. 1996) 78 F.3d 1190, 1197; United States v. Johnson (8th Cir. 1995) 56
F.3d 947, 955; United States v. Nelson (10th Cir. 2006) 450 F.3d 1201, 1211-
1212; Coleman v. Singletary (11th Cir. 1994) 30 F.3d 1420, 1424; Bowen v. State
(Ark. 1995) 911 S.W.2d 555, 565; People v. Arroyo (Colo. 1999) 988 P.2d 1124,
1131; Owen v. State (Fla. 2003) 862 So.2d 687, 692; State v. Law (Idaho Ct.App.
2002) 136 Idaho 721, 724-725; State v. Robertson (La. 1998) 712 So.2d 8, 29;
People v. Granderson (Mich.Ct.App. 1995) 538 N.W.2d 471, 474; State v.
Golphin
(N.C. 2000) 533 S.E.2d 168, 225; State v. Greybull (N.D. 1998) 579
N.W.2d 161, 163; State v. Murphy (Ohio 2001) 747 N.E.2d 765, 778-779; State v.
Reed
(S.C. 1998) 503 S.E.2d 747, 750; Dowthitt v. State (Tex.Crim.App. 1996)
931 S.W.2d 244, 257; State v. Bacon (Vt. 1995) 658 A.2d 54, 65; State v. Hodges
(2003) 118 Wn.App. 668; State v. Ross (1996) 203 Wis.2d 66, 75-78.) A
significant number of state courts, and at least five of the 11 federal circuits, have
taken pains to avoid deciding the issue in the absence of a decision by the high
court. (James v. Marshall (1st Cir. 2003) 322 F.3d 103, 108; United States v.
Ramirez
(2d Cir. 1996) 79 F.3d 298, 305; Burket v. Angelone (4th Cir. 2000) 208
F.3d 172; Soffar v. Cockrell (5th Cir. 2002) 300 F.3d 588, 593-594, fn. 5;


(footnote continued on next page)

42


Stitely (2005) 35 Cal.4th 514, 535, ?[i]n order to invoke the Fifth Amendment

privilege after it has been waived, and in order to halt police questioning after it

has begun, the suspect ?must unambiguously? assert his right to silence . . . .? ?

(See also People v. Rundle (2008) 43 Cal.4th 76, 114.) In addition, we also

concluded that the ?stop and clarify? rule does not apply to ambiguous assertions

of the right to silence. ?Faced with an ambiguous or equivocal statement, law

enforcement officers are not required . . . either to ask clarifying questions or to

cease questioning altogether.? (People v. Stitely, supra, 35 Cal.4th at p. 535; see

also People v. Rundle, supra, 43 Cal.4th 76, 115.)10

Defendant argues that we should distinguish the right to silence from the

right to counsel at issue in Davis, and at the very least we should require the police



(footnote continued from previous page)

DeWeaver v. Runnels (9th Cir. 2009) 556 F.3d 995, 1001 [noting that the 9th Cir.
has repeatedly declined to decide the issue in previous cases]; Munson v. State
(Alaska 2005) 123 P.3d 1042, 1047; Green v. State (Ga. 2002) 570 S.E.2d 207,
209-210; Commonwealth v. Sicari (Mass. 2001) 752 N.E.2d 684, 696, fn. 13;
Pena v. State (Wyo. 2004) 98 P.3d 857, 868.) Some states have specifically
refused to apply Davis to invocations of the right to remain silent. (State v.
Strayhand
(Ariz.Ct.App. 1995) 911 P.2d 577, 592; Freeman v. State
(Md.Ct.Spec.App. 2004) 857 A.2d 557, 570 [refusing to apply Davis to an initial
waiver of rights]; State v. Holloway (Me. 2000) 760 A.2d 223, 228 [same].) Other
courts have continued to require law enforcement to stop and clarify ambiguous
assertions of the right to silence. (Freeman v. State (Ala.Crim.App. 1999) 776
So.2d 160, 175; Garvey v. State (Del. 2005) 873 A.2d 291, 296; State v.
Tiedemann
(Utah 2007) 162 P.3d 1106, 1111; State v. Farley (W.Va. 1994) 452
S.E.2d 50, 59, fn. 12.) Still another group of courts requires the unambiguous
assertion of the right to remain silent, without making specific reference to Davis.
(State v. Holmes (Kan. 2004) 102 P.3d 406, 419; Soto v. Commonwealth (Ky.
2004) 139 S.W.3d 827, 847; People v. Brandon (N.Y.Crim.Ct. 2003) 770
N.Y.S.2d 825, 831; Midkiff v. Commonwealth (Va. 1995) 462 S.E.2d 112, 115.)

10

We disapprove of any language to the contrary in People v. Box (2000) 23

Cal.4th 1153, 1194.

43


to stop and clarify ambiguous invocations of the right to silence. He contends that

the stop and clarify rule should apply to the right to remain silent because it is the

core right Miranda sought to protect, unlike the right to counsel, which is only a

?second layer? Miranda protection. We disagree.

Applying different rules to invocations of the right to counsel and the right

to remain silent would be difficult for law enforcement officials to implement in

the interrogation setting, especially where the suspect?s ambiguous statements may

relate to both the right to counsel and the right to remain silent. (See Johnson v.

Harkleroad (4th Cir. 2004) 104 Fed.Appx. 858, 867 [suspect stated, ?maybe I

should stop talking and get a lawyer?]; United States v. Cheely (9th Cir. 1994) 36

F.3d 1439, 1447 [suspect, when asked whether he wished to waive his Miranda

rights, stated ? ?he didn?t think his attorney would want him talking to us? ?].) The

police would not be required to clarify whether the suspect sought the assistance

of counsel, but would be required to clarify whether the suspect sought to remain

silent. Therefore, although the right to silence is the core right protected by

Miranda, as Davis itself noted, ?we must consider the other side of the Miranda

equation: the need for effective law enforcement.? (Davis, supra, 512 U.S. at p.

461.) Applying the same rule to both the right to remain silent and the right to

counsel provides a ?bright line that can be applied by officers in the real world of

investigation and interrogation without unduly hampering the gathering of

information.? (Ibid.)

With these principles in mind, we now examine defendant?s Miranda

claims.

3. Analysis

As noted, defendant claims that he invoked his right to silence with Officer

Lopez and again the following morning with Detectives Carroll and Aguillon. He

also claims he invoked his right to counsel later that same day.

44




?In reviewing Miranda issues on appeal, we accept the trial court?s

resolution of disputed facts and inferences as well as its evaluations of credibility

if substantially supported, but independently determine from undisputed facts and

facts found by the trial court whether the challenged statement was legally

obtained.? (People v. Smith (2007) 40 Cal.4th 483, 502.)

a) Defendant?s Statements to Detectives Carroll and Aguillon on

the Morning of December 5, 1996

Defendant argues he invoked his right to silence when he told Officer

Lopez, ?That?s all I can tell you,? and that, as a result, Detectives Carroll and

Aguillon improperly questioned him the following morning. We disagree.

In very similar circumstances, in In re Joe R. (1980) 27 Cal.3d 496, we

concluded that a defendant?s use of the phrase ?That?s all I have to say? was not

an attempt to end the interrogation and that ?[i]t was not unreasonable for the

[trial] court to endorse the prosecutor?s inference that what defendant was saying

was, That?s my story, and I?ll stick with it.? (Id. at p. 516.)

In the present case, we agree with trial court?s conclusion, supported by

Officer Lopez?s testimony, that he believed defendant was telling him ?[t]hat?s all

the information he had for me.? But even assuming defendant made a sufficiently

clear invocation under Davis, which In re Joe R. predates, there was no error.

Officer Lopez stopped the interrogation, did not try to persuade defendant to talk,

and obtained no further statements from him.

Moreover, under the principles of Michigan v. Mosley (1975) 423 U.S. 96,

defendant?s interrogation the following morning by Detectives Carroll and

Aguillon also complied with Miranda. In Mosley, despite the defendant?s

invocation of the right to remain silent, the high court declined to find a Miranda

violation because ?the police here immediately ceased the interrogation, resumed

questioning only after the passage of a significant period of time and the provision

of a fresh set of warnings, and restricted the second interrogation to a crime that

45


had not been a subject of the earlier interrogation.? (Michigan v. Mosley, supra,

423 U.S. at p. 106.) In Mosley, the time elapsed between the invocation of the

right to silence and the reinterrogation was ?more than two hours.? (Id. at p. 104.)

The present case is factually similar. Here, the detectives waited overnight

to approach defendant again, and their questioning shifted quickly from Sabrina

P.?s assault to a different crime, Sophia?s murder. Although the detectives did not

reread defendant his Miranda rights verbatim, they did remind him of the

admonition given the night before and then specifically asked him if he

remembered those rights and whether he still wanted to talk. Defendant responded

affirmatively. Given that defendant had been read his Miranda rights the night

before and on at least four prior occasions, the record fails to support any

inference that defendant was unaware of his rights and the significance of his

waiver. (People v. Riva (2003) 112 Cal.App.4th 981, 994; see also Weeks v.

Angelone (4th Cir.1999) 176 F.3d 249, 268 [Mosley was complied with where the

officer asked the defendant ?whether he remembered the rights he had been read

from the first interrogation?]; United States v. Andrade (1st Cir. 1998) 135 F.3d

104, 106-107 [same].)

b) Defendant?s Statements to Detectives Carroll and Aguillon on

the Afternoon of December 5, 1996

Defendant also argues he invoked his right to silence when, at the end of

the interrogation on the morning of December 5, 1996, he told Detectives Carroll

and Aguillon, ?I don?t want to talk anymore right now.? Defendant argues that

this statement was a clear invocation of that right, especially given the context in

which it was made ? with no question pending, after the detectives had

confronted him with inconsistencies in his version of events, told him to think it

over, announced that they were taking a break, and were beginning to leave the

room. He argues, therefore, that the detectives improperly reapproached him and

questioned him later that afternoon. We disagree.

46




Defendant relies heavily on People v. Peracchi (2001) 86 Cal.App.4th 353,

361, a Court of Appeal decision concluding that the defendant?s use of the phrase

?I don?t want to discuss it right now,? was a refusal to waive his right to remain

silent. In Peracchi, after the officer read the defendant his Miranda rights and

asked the defendant whether he wanted to talk, the defendant responded, ?At this

point, I don?t think so. At this point, I don?t think I can talk.? When the officer

tried to clarify, the defendant explained that his head was ?not clear enough? to

discuss the charges against him ?right now.? When the officer again tried to

clarify, the defendant said, ?I don?t want to discuss it right now.? The officer

asked why, and the defendant then made statements incriminating himself.

(Peracchi, at pp. 358-359.) The Peracchi court concluded that the officer?s first

attempts to clarify the defendant?s statements were proper, but once the defendant

stated, ? ?I don?t want to discuss it right now,? ? he was ?clearly indicating that he

intended to invoke his right to remain silent? and the officer thereafter improperly

continued to interrogate because ?[o]fficers have no legitimate need or reason to

inquire into the reasons why a suspect wishes to remain silent.? (Id. at p. 361.)

Although defendant?s statement here is similar to the one uttered in

Peracchi, the context in which it was uttered is markedly different. Peracchi

involved a Miranda waiver, not an invocation during the course of an

interrogation. ?Invocation and waiver are entirely distinct inquiries, and the two

must not be blurred by merging them together.? (Smith v. Illinois (1984) 469 U.S.

91, 98.) The defendant in Peracchi invoked his right to silence at the outset of the

interrogation, making clear he did not wish to waive his right to silence at that

time. Defendant in the present case made the statement after a lengthy

interrogation session and after the detective made clear that the session was over.

The resumption of questioning later that day did not, as in Peracchi, amount to a

failure to heed a suspect?s clear refusal to waive his right to silence.

47




In any event, even though he was not required to do so, Detective Carroll

employed ?good police practice? by clarifying any ambiguity when he responded

to defendant?s statement by saying that was ?fine,? that they were going to take a

break, encouraged him to ?think about it,? and said that they would come back and

talk to him. (Davis, supra, 512 U.S. at p. 461.) Defendant could have responded

negatively and explained that he would not be interested in talking further, even

after a break. He did not. Instead, by saying, ?Okay,? he in effect agreed to allow

the detectives to return for more questioning.

For the same reason, defendant?s claim that he reiterated his previously

invoked right to remain silent hours later as they drove to the hospital must also

fail. As explained, Detective Carroll asked defendant if he had been thinking

about their earlier conversation, and defendant replied, ?Not really.? Detective

Carroll had already elicited the clarification that defendant was willing to discuss

the matter after a break, and that wish had been honored. At this point, defendant

was merely indicating that he had ?not really? thought about changing his version

of events and that, as he had previously told Officer Lopez, he was sticking to his

story.

c) Defendant?s Statements About Taking a Polygraph

Defendant claims that at the end of his last interrogation on December 5,

1996, his statement, ?I think I should talk to a lawyer before I decide to take a

polygraph,? was a clear invocation of his right to counsel, made in response to

Detective Aguillon?s offer to provide a polygraph examination. We disagree.

As we have held, a defendant does not unambiguously invoke his right to

counsel when he makes that request contingent on an event that has not occurred.

(See People v. Gonzalez (2005) 34 Cal.4th 1111 [defendant?s request for counsel

was conditioned on whether he was going to be charged with any crimes].)

48




In the present case, defendant?s statement was conditional ? ?I think I

should talk to a lawyer before I decide to take a polygraph.? (Italics added.)11

Under these circumstances, the detectives reasonably could conclude that

defendant only wanted the assistance of counsel if he was taking a polygraph

exam. Since no polygraph exam was administered, defendant did not need the

assistance of counsel, and the detectives, under Davis, supra, 512 U.S. 452, were

not obligated to inquire further at that point or when they approached him again

the following morning.

Accordingly, defendant?s Miranda claims lack merit, and the trial court did

not err in admitting his statements at trial.

III. GUILT PHASE ISSUES

A. Instructional Error as to Issues of Consent

Defendant argues the trial court prejudicially erred by refusing his request

to give the jury two instructions involving consent as a defense to the crime of

rape: CALJIC No. 1.23.1,12 which defines consent as a defense to rape, and

CALJIC No. 10.65,13 which instructs the jury that a reasonable mistaken belief as

11

Defendant also argues that his use of the words ?I think? did not render his

statement ambiguous or equivocal and, in his reply brief, cites several lower
federal court decisions indicating differing views as to whether those same words
render a request for counsel insufficient under the Davis ?unambiguous or
unequivocal? language test. We need not discuss this issue in light of our
conclusion that his request for counsel was conditional.

12

Defendant?s proposed CALJIC No. 1.23.1 instruction defined ?consent? as

follows:

?In [prosecutions under] Penal Code section 261, the word ?consent? means

positive cooperation in an act or attitude as an exercise of free will. The person
must act freely and voluntarily and have knowledge of the nature of the act or

transaction involved.?

13

Defendant?s proposed CALJIC No. 10.65 instruction defined ?belief as to

consent? as follows:


(footnote continued on next page)

49


to consent constitutes a defense to the crime of rape. He further argues the

remaining instructions given to the jury insufficiently defined the defense of

consent in violation of his state and federal constitutional rights to due process,

trial by jury, to present a defense, and to fair and reliable capital guilt and penalty

phase trials. We disagree.

In criminal cases, even in the absence of a request, a trial court must

instruct on general principles of law relevant to the issues raised by the evidence

and necessary for the jury?s understanding of the case. (People v. Breverman

(1998) 19 Cal.4th 142, 154.) ?A trial court?s duty to instruct, sua sponte, on

particular defenses arises ? ?only if it appears that the defendant is relying on such

a defense, or if there is substantial evidence supportive of such a defense and the

defense is not inconsistent with the defendant?s theory of the case.? ? ? (People v.

Maury (2003) 30 Cal.4th 342, 424.)



(footnote continued from previous page)



?In the crime of [unlawful] [forcible rape] by force [sic], [violence] [fear]

[or] [threats to retaliate] [sic], criminal intent must exist at the time of the
commission of the rape. There is no criminal intent if the defendant had a
reasonable and good faith belief that the other person voluntarily consented to
engage in [sexual intercourse] of [sic]

?Therefore, a reasonable and good faith belief that there was voluntary

consent is a defense to such a charge.

[However, a belief that is based upon ambiguous conduct by an alleged

victim that is the product of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another is not a reasonable good faith
belief.]

If after a consideration of all of the evidence you have a reasonable doubt

that the defendant had criminal intent at the time of the [sexual intercourse] you
must find [him] [her] not guilty of the crime.?

50




In refusing defendant?s request, the trial court correctly concluded that

CALJIC No. 10.65 was not supported by the evidence. CALJIC No. 10.65 is

based upon our decision in People v. Mayberry (1975) 15 Cal.3d 143, which held

that a defendant?s reasonable and good faith mistake of fact regarding a person?s

consent to sexual intercourse is a defense to rape because it negates the wrongful

intent required for the crime. (Id. at p. 155.) In People v. Williams (1992) 4

Cal.4th 354, we clarified when the instruction is required. We explained that, in

order for the Mayberry defense to apply, the defendant must have ?honestly and in

good faith, albeit mistakenly, believed that the victim consented to sexual

intercourse? based upon ?evidence of the victim?s equivocal conduct,? and ?the

defendant?s mistake regarding consent [must have been] reasonable under the

circumstances.? (People v. Williams, supra, 4 Cal.4th at pp. 361-362.) ?Thus,

because the Mayberry instruction is premised on mistake of fact, the instruction

should not be given absent substantial evidence of equivocal conduct that would

have led a defendant to reasonably and in good faith believe consent existed where

it did not.? (Id. at p. 362.)

Here, as the trial court noted, the record is devoid of any equivocal conduct

on the part of Sophia Torres, or of any evidence that defendant reasonably mistook

her conduct for consent. In fact, defendant claimed that he only met her for the

first time that night and that, other than observing her being chased by two

women, he had no contact with her at the park where she was found dead. He

claimed that he was only meeting her to buy methamphetamine and otherwise

never did drugs with or ?partied with her.? Therefore, without evidence of

Sophia?s equivocal conduct or that defendant reasonably mistook her conduct for

consent, the record provided no support for the instruction.

The reasons for the trial court?s refusal to give CALJIC No. 1.23.1 are less

clear. After declining to give CALJIC No. 10.65, the court inquired about

CALJIC No. 1.23.1, and defense counsel explained that it defined consent, but

51


then stated, ?I?ve just realized that that instruction probably has meaning if you

give 10.65, which the court has refused.? The court then stated that it would

refuse the instruction, and defense counsel stated, ?It?s an accurate statement of

the law, and I still want it, but that?s because I still want 10.65.? The trial court

then refused the instruction.

Further complicating matters, the prosecutor had earlier suggested that

defense counsel was ?entitled to argue, if he wants to, that they had consensual

sex,? and at closing arguments both sides argued the issue of whether defendant

and Sophia had consensual sex on the night of the crimes. Additionally, defendant

relies on the testimony of Dr. Robert Failing, the state?s pathologist, who found no

bruising, tearing, or trauma to the victim?s vagina, although he also testified that

this finding was not necessarily inconsistent with a sexual assault.

We need not decide whether this evidence or counsel?s arguments required

the trial court to supply CALJIC No. 1.23.1?s definition of consent because any

error was harmless beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24.)

The trial court instructed the jury with CALJIC No. 10.00, defining the

crime of rape. The instruction makes clear that the acts against the victim must

occur ?against that person?s will,? which it in turn defines as ?without the consent

of the alleged victim.? Nothing indicates that the jury was confused or required a

definition of ?consent.? In fact, the definition of consent in CALJIC No. 1.23.1

arguably is less beneficial to defendant than its common or ordinary dictionary

meaning14 because it not only requires agreement but also ?knowledge of the

nature of the act or transaction involved.? Therefore, defendant may have


14

To ?consent? is defined as ?to give assent or approval.? (Merriam-

Webster’s Collegiate Dict. (10th ed. 1998) p. 245.)

52


benefited from the jury?s considering only the plain meaning of the word

?consent,? as opposed to the definition contained in CALJIC No. 1.23.1. (See

People v. Carapeli (1988) 201 Cal.App.3d 589, 593-594.) As a result, defendant

fails to demonstrate prejudice.



B. Prosecutorial Misconduct During Closing Arguments

Defendant argues that the prosecutor engaged in misconduct during his

guilt phase closing arguments by improperly appealing to sympathy, passion and

prejudice. He also claims the prosecutor committed misconduct by referring to the

subject of punishment and to the penalty phase and by vouching for the credibility

of a witness. Defendant claims these various acts of alleged misconduct deprived

him of due process of law and violated his Eighth Amendment right to a

reliable determination of penalty. We disagree and further conclude that any error

was harmless.

1. The Standard of Review

Under the federal standard, prosecutorial misconduct that infects the trial

with such ? ?unfairness as to make the resulting conviction a denial of due

process? ? is reversible error. (Darden v. Wainwright (1986) 477 U.S. 168, 181.)

In contrast, under our state law, prosecutorial misconduct is reversible error

where the prosecutor uses ?deceptive or reprehensible methods to persuade either

the court or the jury? (People v. Price (1991) 1 Cal.4th 324, 447) and ? ?it is

reasonably probable that a result more favorable to the defendant would have

been reached without the misconduct? ? (People v. Wallace (2008) 44 Cal.4th

1032, 1071). To preserve a misconduct claim for review on appeal, a defendant

must make a timely objection and, unless an admonition would not have cured the

harm, ask the trial court to admonish the jury to disregard the prosecutor?s

improper remarks or conduct. (People v. Tafoya (2007) 42 Cal.4th 147, 176.)

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2. Appeals to Sympathy, Passion, and Prejudice

Defendant argues that the prosecutor appealed to the jury?s passion,

prejudice, and sympathy by referring to Sophia as ?that poor lady,? ?that poor

woman,? or as ?a very nice woman?; describing her assault as a ?savage beating?

and expressing incredulity ?that one human being could do that to another being?;

remarking that any uneasiness the jury might experience in viewing the

photographs of her injuries would reflect ?a measure of the true violent

capabilities of the defendant in this case and the true measure of the suffering of

the victim?; and ending his argument by telling the jury that it had the ability

through its verdict to ?tell everybody in this community? and ?everyone? that

Sophia was ?a nice person,? ?a gentle person,? ?a loner? who was ?depressed? and

?contemplative? because she was mourning ?the loss of the person that she loved

more than anybody else in life,? and ?that she was not a promiscuous woman?

who ?would engage in a one-night stand with the defendant.?

Defendant also argues that the prosecutor made similar impassioned

statements relating to Maria M. and the other victims in this case by stating ?that

the memory of each of the victims will always be scarred from their individual

suffering and the terror created by? defendant?s assaults; remarking on ?their looks

of discomfort? while having ?to face the defendant again? in court; describing ?the

tears evoked? when Maria testified as to defendant?s assault; and by claiming that

it was ?insulting your intelligence? for defendant to claim that he did not intend to

rape Maria.

As defendant acknowledges, defense counsel lodged no objection to these

statements. He claims, however, that he was not required to object because of the

number and variety of the comments and because they increased in both frequency

and severity until the end of the prosecutor?s argument, by which time it was it

was too late for an objection and admonition to cure the harm. In addition, he

notes that defense counsel, in his closing argument, sought to defuse the

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prosecutor?s remarks by characterizing the comments as ?hot words, emotional

words? and an appeal to ?the emotional issues,? and by encouraging the jury to set

aside those emotions because ?that isn?t how the law expects you to make your

decision.?

Assuming, without deciding, that objections were not required under these

circumstances, we conclude defendant has not shown that he is entitled to relief.

The prosecutor?s description of the victim?s injuries was not an improper appeal to

the jury?s passion and prejudice. Prosecuting attorneys are allowed ?a wide range

of descriptive comment? and their ? ? ?argument may be vigorous as long as it

amounts to fair comment on the evidence, which can include reasonable

inferences, or deductions to be drawn therefrom.? ? ? (People v. Williams (1997)

16 Cal.4th 153, 221, quoting People v. Wharton (1991) 53 Cal.3d 522, 567.) The

prosecution?s description of Sophia ?suffering? a ?savage beating? and his

comment about how it reflected defendant?s ?violent capabilities? were fair

comments on the evidence. In People v. Harrison (2005) 35 Cal.4th 208, in which

the defendant killed two people over a sale of fake cocaine by shooting them

point-blank in the head, we concluded that the prosecutor at the guilt phase did not

exceed the bounds of permissible closing argument by describing the defendant as

someone who enjoyed killing like ? ?a little kid opening his toys at Christmas? ?

(id. at p. 244) as a ? ?denizen of the night,? ? as ? ?the executioner,? ? as ? ?the

terminator of precious life,? ? as ? ?a head hunter? ? (id. at p. 245) and as ? ?the

complete and total essence of evil? ? with ? ?a cold unyielding heart.? ? (Id. at p.

246.) The comments at issue here are far less descriptive given the circumstances

of the case.

Even if the prosecutor?s arguments could be interpreted as an improper

appeal for sympathy for Sophia and the other victims, however, it is not

reasonably probable that the verdict would have been more favorable to defendant

without the misconduct. ?We have settled that an appeal to the jury to view the

55


crime through the eyes of the victim is misconduct at the guilt phase of trial; an

appeal for sympathy for the victim is out of place during an objective

determination of guilt. [Citations.]? (People v. Stansbury (1993) 4 Cal.4th 1017,

1057.) The prosecutor?s comments about Sophia?s character and the impact of

defendant?s crimes on the other victims were not egregious and were relatively

brief compared to the rest of his arguments. They could not, by themselves, have

swayed the jury. The evidence that defendant killed Sophia was very strong and

generally uncontradicted. Moreover, defense counsel responded effectively to the

prosecutor?s comments in his closing argument, and the trial court instructed the

jury ?not to be influenced by pity for or prejudice against defendant,? and ?not be

influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public

opinion or public feeling.? We presume the jury followed the court?s instruction.

(See People v. Kipp (2001) 26 Cal.4th 1100, 1130.)

3. References to Punishment and Penalty

Defendant also argues that the prosecutor improperly raised the subject of

punishment and penalty in his guilt phase closing arguments by commenting on

the strength of defendant?s guilt and then stating, ?The simple truth is this trial

went quickly and it?s a precursor to the second trial in this case.? Defendant also

claims that the prosecutor injected the issue of punishment into his argument by

stating that because defendant continued to stalk women after Sophia?s murder he

had no ?lessons learned in life.? According to defendant, this statement implied

that defendant could not be rehabilitated. Defendant has forfeited these claims on

appeal because he failed to object to either of these statements. (People v.

Saunders (1993) 5 Cal.4th 580, 589-590.) In any event, even if defendant had

preserved this issue, there was no error.

At the guilt phase, ?[a] defendant?s possible punishment is not a proper

matter for jury consideration.? (People v. Holt (1984) 37 Cal.3d 436, 458.) But

the challenged comments could not have been interpreted to mean that the jury

56


should consider punishment and penalty at the guilt phase. The first was, at best,

an opaque reference to the penalty phase and did not attempt to sway the jury

towards any particular punishment. The second was simply an observation about

defendant?s conduct and made no reference whatsoever to penalty.

4. Vouching for the Credibility of a Witness

Defendant also contends that the prosecutor improperly bolstered Maria

M.?s credibility by claiming that her statements were ?consistent with police, in

prior testimony, and here before you,? even though her prior statements were not

introduced as evidence. The trial court overruled defendant?s objection.

A prosecutor may comment upon the credibility of witnesses based on facts

contained in the record, and any reasonable inferences that can be drawn from

them, but may not vouch for the credibility of a witness based on personal belief

or by referring to evidence outside the record. (People v. Turner (2004) 34

Cal.4th 406, 432-433; People v. Gates (1987) 43 Cal.3d 1168, 1187-1188.)

Defendant claims he was prejudiced by the error because Maria had made

inconsistent statements relevant to the asportation element of the charges

involving kidnapping her with intent to commit rape and kidnapping her for

robbery. Not so. Even assuming the trial court erred in overruling defendant?s

objection, the error was not prejudicial.

Maria?s inconsistent statements concerned whether she had actually heard

the good samaritan, Francisco Lopez, approaching. At trial, she claimed that,

when defendant was about to assault her in the alleyway, she did not hear anyone

coming, but told defendant that someone was approaching to scare him off. She

did not remember previously claiming, to a defense investigator and during her

preliminary hearing testimony, that she did hear someone approaching. But this

inconsistency is of no consequence because Maria?s testimony unequivocally

established that defendant had grabbed her, put a knife to her neck, and dragged

her by her hair away from the mall walkway and into the alleyway before she

57


made the statement about someone approaching. In addition, Francisco Lopez?s

testimony corroborated Maria?s version of how defendant moved her from the

mall walkway and toward the alleyway before he startled defendant by activating

the siren in his truck. Therefore, the inconsistency concerned a portion of Maria?s

testimony that was collateral to the evidence supporting the aggravated kidnapping

charges, and it is not reasonably probable that any jury confusion on this subject

would have affected the outcome of the trial. (See People v. Rayford (1994) 9

Cal.4th 1.)

C. Cumulative Errors in the Guilt Phase

Defendant contends that the judgment of conviction must be reversed due

to cumulative error.

We have assumed, for the sake of argument, that the trial court erred by

failing to instruct the jury on the definition of ?consent? for purposes of rape and

that the prosecutor?s closing argument made an improper appeal for sympathy for

the victims. We have also concluded that the trial court erred in sustaining

defendant?s objection to the prosecution?s claim, also made during closing

argument, that Maria M. had made prior consistent statements. But, as we have

noted, defendant has failed to demonstrate prejudice as to any of these claims.

Taken together, the cumulative effect of these minor errors and assumed errors did

not prejudice defendant.


IV. PENALTY PHASE ISSUES

A. Guilt Phase Errors Prejudicially Affecting the Penalty Phase

Defendant argues that the guilt phase errors ?poisoned? the penalty phase,

thereby requiring reversal of his death sentence.

We have concluded, however, that any guilt phase errors, whether assumed

or actual, and whether considered individually or cumulatively, could not have

58


prejudiced defendant at the guilt phase. Similarly, given that none of these errors

affected the guilt phase, defendant fails to show, under any standard, how these

same errors could have affected the penalty phase.

B. Victim Impact Evidence

1. Improper Testimony

Defendant next renews the argument he made below that admission of

prejudicial victim impact testimony violated his state and federal rights to due

process and a fair trial. Specifically, he argues that allowing Sophia?s family

members to testify regarding how the manner of her death affected them and to

allow the surviving victims to testify regarding the impact of the defendant?s

crimes on them violated the Eighth Amendment. (See Payne v. Tennessee (1991)
501 U.S. 808, 830, fn. 2 [?the admission of a victim?s family members?

characterizations and opinions about the crime, the defendant, and the appropriate

sentence violates the Eighth Amendment?].) We disagree.

a) Testimony of Sophia?s Sister and Brother

At the penalty phase, the prosecutor asked Sophia?s sister, Victoria

Francisco, about the impact of Sophia?s murder on her. During the course of her

answer, Sophia?s sister said that what hurt her most was thinking of ?all that she

went through? and how Sophia ?suffered that night? before her death.

After her testimony and outside the jury?s presence, defense counsel

objected to these statements, claiming that they were improper characterizations

by a victim?s family member of the nature of the crime in violation of Booth v.

Maryland (1987) 482 U.S. 496 and Payne v. Tennessee, supra, 501 U.S. 808, and

in violation of the trial court?s pretrial rulings on victim impact testimony.

Defense counsel argued that the contested statements were inflammatory and an

improper appeal to emotion, and asked the trial court to instruct the prosecution

not to present this kind of evidence. The trial court overruled the objection,

59


concluding the testimony was permissible and not prejudicial. The trial court

made clear that a description of Sophia?s injuries by the family members would

not be allowed, but stated that the witnesses should be ?allowed to say that one of

the impacts is their reliving what [Sophia] might have gone through.? The trial

court also allowed defense counsel to lodge a continuing objection to this kind of

testimony.

Later, Sophia?s brother, Gilberto Torres, testified that he thought about

Sophia every day, ?especially for the brutal way she died.?

We have previously held evidence of this kind admissible at the penalty

phase of a capital case. In People v. Pollock (2004) 32 Cal.4th 1153, the victims,

an elderly married couple, died of multiple stab wounds inflicted by a butcher

knife. We examined victim impact testimony from the deceased victims? loved

ones describing how their ?grief was exacerbated by knowledge of the ?savage?

manner in which? the victims were killed ?and the pain they must have

experienced during their final minutes.? (Id. at p. 1166.) A friend of the deceased

described her shock at the couple?s death and ?the brutal manner in which they

died,? and the couple?s surviving son testified about how ?the circumstances of his

parents? deaths made it impossible for him to remember his parents, or his own

childhood, without in some manner imagining the suffering of their final minutes.?

(Id. at p. 1182.) We found no Eighth Amendment violation and concluded the

testimony ?was proper and admissible victim impact evidence? because their

testimony was ?limited to how the crimes had directly affected them? and they

?did not testify merely to their personal opinions about the murders.? (Pollock, at

p. 1182.) The testimony in the present case is no different.

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b) Testimony of the Surviving Victims

Defendant claims that, in death penalty cases, the Eighth Amendment, due

process, and the right to a fair trial prohibit victims of a defendant?s noncapital

crimes from providing testimony about the impact of those crimes. He also argues

that the testimony of Maria M. and Sabrina P. had no relevance to the

circumstances of the capital crime within the meaning of section 190.3, factor (a).

Defendant has forfeited these claims on appeal because defense counsel

objected to this evidence only on Evidence Code section 352 grounds. In any

event, even if we assume defendant preserved his claims for this appeal, they lack

merit. Although the impact of defendant?s assaults on Maria and Sabrina were not

relevant to the circumstances of the capital crime under factor (a), they were

relevant and admissible as ?evidence of the emotional effect? of defendant?s other

violent criminal acts under section 190.3, factor (b). (People v. Price, supra, 1

Cal.4th 324, 479.) We have rejected the contention that such evidence violates the

Eighth Amendment. (People v. Davis (2009) 46 Cal.4th 539, 617-618.)

2. The Unconstitutionality of Section 190.3, Factor (a) as Applied to

This Case

Defendant argues that if we interpret section 190.3, factor (a) to allow

multiple family members to testify as to how the nature of Sophia?s murder

affected them, when none of them personally witnessed the offense, we will render

that statute unconstitutionally vague and overbroad. We have repeatedly rejected

identical arguments in other cases, and defendant fails to convince us to reconsider

those decisions. (People v. Hamilton (2009) 45 Cal.4th 863, 931; People v.

Pollack, supra, 32 Cal.4th 1153, 1183; People v. Boyette (2002) 29 Cal.4th 381,

443-445, fn. 12.)

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C. Evidentiary Rulings on Adjustment Potential

Before his testimony at the penalty phase, the trial court limited the

testimony of defense corrections expert James Esten. Defendant sought to have

Esten detail the conditions of confinement for an inmate sentenced to a life term in

a Level 4 maximum security prison. Defendant made an offer of proof in which

Esten would describe the specific Level 4 prison conditions designed to minimize

the risks of escape and of an inmate assaulting staff members or other inmates. As

further support, defendant offered exhibits describing some of the procedures and

safety measures employed by the Department of Corrections as well as pictures of

inmate cells, the secured toilet, sink, and bunk fixtures inside the inmate cell, the

secured tables and seating at an inmate dining hall, and the outdoor security

fencing at a level 4 institution.

Defendant argued this evidence was relevant to whether defendant had the

potential to successfully adjust to life in prison without the possibility of parole

and would rebut any claim of future dangerousness. Citing this court?s prior

precedents, the prosecutor argued that the details of future conditions of

confinement were not relevant. Additionally, he noted that the prosecution had

not offered evidence of defendant?s future dangerousness. The trial court agreed

and ruled the exhibits inadmissible. The court made clear that Esten could not

testify as to ?details of the prison system,? but also ruled that Esten could offer

?general descriptions of prison life? as well as his opinions on defendant?s future

dangerousness and whether prison life was the kind of structured environment that

defendant needed. The court further stated: ?What I?m not going to allow him to

do is to testify as to, as in the photographs in your exhibit, the floors are painted

this way, the guards look this way, the tables are made out of this, the toilets are

made out of that.? The court also made clear that it would allow Esten to describe

the Level 4 classification and its subdividing classifications.

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Defendant claims this ruling violated state law and his rights to due process

and a reliable penalty determination under the Eighth and Fourteenth

Amendments. We disagree.

As defendant acknowledges, we have repeatedly held that evidence

concerning conditions of confinement for a person serving a sentence of life

without possibility of parole is not relevant to the penalty determination because it

has no bearing on the defendant?s character, culpability, or the circumstances of

the offense under either the federal Constitution or section 190.3, factor (k).

(People v. Jones (2003) 29 Cal.4th 1229, 1261, citing People v. Quartermain

(1997) 16 Cal.4th 600, 632; People v. Daniels (1991) 52 Cal.3d 815, 876-878;

People v. Thompson (1988) 45 Cal.3d 86, 138-139.)

More importantly, ?[d]escribing future conditions of confinement for a

person serving life without possibility of parole involves speculation as to what

future officials in another branch of government will or will not do.? (People v.

Thompson, supra, 45 Cal.3d 86, 139.) The evidence defendant sought to admit

assumed that the specific security measures of daily prison life would remain

unchanged throughout his supposed life sentence. It also presupposed that

defendant would be housed at a particular facility that had the safety measures

depicted in the photographic exhibits. As the trial court recognized, it was not

reasonable to assume that these precise conditions would remain static throughout

a life sentence, and the court properly limited Esten?s testimony to general

descriptions of prison life. (People v. Fauber (1992) 2 Cal.4th 792, 856 [even at

the penalty phase of a capital trial, ?the trial court determines relevancy in the first

instance and retains discretion to exclude evidence whose probative value is

substantially outweighed by the probability that its admission will create

substantial danger of confusing the issues or misleading the jury?]; see also

Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 12.) The trial court?s ruling was

narrow and did not otherwise interfere with Esten?s opinions concerning

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defendant?s future dangerousness or his ability to conform to a structured

environment.

D. Prosecutorial Misconduct at the Penalty Phase

Defendant claims the prosecutor engaged in various acts of misconduct

during the penalty phase by appealing to the passions and prejudices of the jury,

thereby denying him due process and a fair and reliable penalty trial. We disagree.

?The same standard applicable to prosecutorial misconduct at the guilt

phase is applicable at the penalty phase. [Citation.] A defendant must timely

object and request a curative instruction or admonishment. Failure to do so

forfeits the claim on appeal unless the admonition would have been ineffective.

[Citation.]? (People v. Valdez (2004) 32 Cal.4th 73, 132, citing People v.

Cunningham (2001) 25 Cal.4th 926, 1019.)

At the outset, we note that defendant forfeited his claim regarding each act

of alleged misconduct by failing to object at trial, and he fails to demonstrate why

an objection was not required in each instance. Moreover, even assuming

defendant had properly preserved these issues for review, we conclude in each

instance that either no misconduct occurred or any misconduct did not prejudice

defendant.

First, defendant claims the prosecutor, in cross-examining Dr. Wu and

Esten, repeatedly began his questions with statements intended to curry favor with

the jurors and to imply that the witnesses were being misleading and untruthful.

Defendant takes issue with eight different statements the prosecutor made during

his cross-examination of the witnesses: (1) ?All right. So just to bring it back so

we have it clear for the jury, . . .?; (2) ?Okay. So ? and that?s another thing I

think this jury needs to know . . .?; (3) ?It?s your testimony to the ladies and

gentlemen of this jury . . .?; (4) ?You told the ladies and gentlemen of the jury . . .?;

(5) ?[J]ust so the jury knows, . . .?; (6) ?I?m not going to sit here with the jury,

eyeball to eyeball, while I read these articles?; (7) ?Okay. It?s a very simple point

64


I want to make. Just so the jury doesn?t have a misimpression about what went on

here . . .? ; (8) ?[J]ust so you don?t confuse the jury . . . .?

Defendant acknowledges that defense counsel made no objection to any of

these statements, but even assuming he had objected, these statements do not

constitute misconduct either individually or cumulatively. Contrary to defendant?s

claim, read in context, none of these statements suggested that the witnesses were

being intentionally misleading or untruthful. Instead, they simply reflected the

prosecutor?s attempt to eliminate potential confusion raised by the complex

subject matter discussed by each witness ? e.g., how PET scans work, which PET

scans supported Dr. Wu?s opinion that defendant?s brain activity was abnormal,

the scientific articles relevant to PET scans, and the voluminous documentary

evidence Esten used in reaching his conclusions. To the extent that some of the

prosecutor?s statements were rhetorical devices (i.e., ?According to your testimony

to the ladies and gentlemen of the jury . . .?), such devices are routinely used by

attorneys during the examination of witnesses and are hardly objectionable.

Second, defendant contends the prosecutor went beyond scope of the

defense?s direct examination by improperly cross-examining Esten about prisoner

marriage, conjugal visits, and whether a prison killing was a rite of passage for

initiation into a prison gang. Defense counsel lodged no objection to any of this

cross-examination.

As to the issue of prison gangs, defense counsel raised the issue of

defendant?s future dangerousness by asking Esten questions about the existence of

prison gangs, whether defendant had expressed interest in joining such a gang, and

how the prison would house defendant if he chose to join a prison gang. As we

stated in People v. Gates, supra, 43 Cal.3d 1168, 1211: ?If the defense chooses to

raise the subject [of future dangerousness] it cannot expect immunity from cross-

examination on it.? Therefore, the prosecutor properly asked follow-up questions

on this subject.

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As to the questions regarding the possibility of future policy changes

allowing life prisoners to marry and enjoy conjugal visits, we need not decide

whether the prosecutor?s questions on this subject were improper. Defense

counsel established during Esten?s redirect examination that it was extremely

unlikely the public would support such a future policy change and that public

pressure has generally supported a trend towards more restrictive prison

regulations. Given this testimony, any error was harmless.

Defendant next claims that, during closing argument, the prosecutor

improperly implored the jury to send a message to the community by stating:

?[W]hat the death penalty will do in this case is that it certainly will restore the

confidence and the trust in the system?s ability to deal with people that

transgress it and that do it in situations that are so aggravated and without

sufficient justifying or mitigating circumstances that the public can see justice

is done. They can see and the families can see that justice means more than

sympathy, and mercy, and warehousing, and rehabilitation, and that it takes

into account the defendant?s conduct and the method and manner of his crimes

and the impacts that it?s had on the ones who suffered.?

Again, defendant has forfeited this issue by failing to object to this

argument or request an admonition. Although defense counsel, before the penalty

phase closing argument began, obtained a trial court ruling prohibiting the

prosecution from arguing that the jury should return a death sentence in order to

send a message of deterrence to the community, the trial court also made clear that

there may be other ?comments about society or community? that could be

permissible, but that ?subject to what happens during argument, [defense counsel]

can be free to object.? We see nothing in the prosecutor?s challenged statement

addressing the issue of deterrence and, therefore, nothing freeing defense counsel

from the obligation to object.

66




Moreover, the claim lacks merit. We have recently explained that a

prosecutor does not err ?by devoting some remarks to a reasoned argument that

the death penalty, where imposed in deserving cases, is a valid form of community

retribution or vengeance ? i.e., punishment ? exacted by the state, under

controlled circumstances, and on behalf of all its members, in lieu of the right of

personal retaliation? because ?[r]etribution on behalf of the community is an

important purpose of all society?s punishments, including the death penalty.

[Citations.]? (People v. Zambrano (2007) 41 Cal.4th 1082, 1178, overruled on

other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421.) Here, the

prosecutor did not solicit ?untethered passions? nor did he ?dissuade jurors from

making individual decisions? ? instead, he properly argued that ?the community,

acting on behalf of those injured, has the right to express its values by imposing

the severest punishment for the most aggravated crimes.? (Zambrano, at p. 1179.)

As a result, there was no misconduct.

Finally, defendant contends the prosecutor engaged in misconduct during

closing argument by speculating that ?if they change the regulations? for inmates

sentenced to life imprisonment, such a sentence might give defendant a chance ?to

have a wife and family? ? a chance he denied Sophia Torres. Again, however,

defense counsel did not object to this comment, nor was the comment specifically

prohibited under the trial court?s prior ruling that Esten was not to testify as to the

details of future prison conditions. Even assuming that the prosecutor?s brief

comment was improper, it could not have prejudiced defendant. As previously

noted, defense counsel effectively dealt with this argument by establishing that it

was unlikely that public opinion would allow a reversion to the old regulations

permitting conjugal visits, an argument which he repeated in his own closing

argument. Therefore, the jury would have been well aware that the prosecution?s

remarks were speculative, and any error was harmless.

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E. The Constitutionality of the Special Circumstances as Applied to

This Case

Defendant claims that, as applied in the present case, the robbery and rape

special circumstance allegations violated the Eighth Amendment to the federal

Constitution because they allowed the jury to impose death for an accidental or

unforeseeable killing. Defendant further claims that his 911 call is evidence that

Sophia?s death was negligent, accidental, or wholly unforeseeable.

As defendant acknowledges, however, since 1987 we have repeatedly

rejected the claim that an intent to kill or any other similar mental state is required

under the Eighth Amendment in order to establish death eligibility for the actual

killer in a felony murder, and we have also rejected the related claim that the

imposition of the death penalty under these circumstances fails to adequately

narrow the class of death-eligible offenders. (People v. Anderson (1987) 43

Cal.3d 1104; People v. Earp (1999) 20 Cal.4th 826, 905; People v. Stanley (2006)

39 Cal.4th 913, 958, 968.) Therefore, even if the jury could have found that

defendant?s 911 call negated evidence of an intent to kill, defendant?s claim lacks

merit.

F. Constitutionality of California?s Death Penalty Law

Defendant raises a number of constitutional challenges to California?s death

penalty law, all of which we have repeatedly rejected, and defendant offers no

persuasive reason to reexamine these prior decisions. Thus, we again hold:

California?s death penalty statute adequately narrows the class of death-

eligible offenders. (People v. Watson (2008) 43 Cal.4th 652, 703.)

Section 190.3, factor (a), which allows the jury to consider the

circumstances of the crime, does not result in arbitrary or capricious imposition of

the death penalty. (People v. Hamilton, supra, 45 Cal.4th 863, 960.)

The death penalty law does not require that the jury achieve unanimity as to

aggravating circumstances or that it be given burden of proof or standard of proof

68


instructions for finding the existence of aggravating factors, finding that

aggravating factors outweigh mitigating factors, or finding that death is the

appropriate penalty. (People v. Hamilton, supra, 45 Cal.4th at p. 960.) The

United States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S.

466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S.

296, United States v. Booker (2005) 543 U.S. 220, or their progeny, have not

altered these conclusions. (People v. Bunyard (2009) 45 Cal.4th 836, 858.)

There is no requirement for a jury in a capital case to make written findings.

(People v. Hamilton, supra, 45 Cal.4th at p. 960.)

The failure to require intercase proportionality review does not render

the death penalty law unconstitutional. (People v. Hamilton, supra, 45 Cal.4th

at p. 960; People v. Watson, supra, 43 Cal.4th at p. 704.)

At the penalty phase, the jury properly may consider a defendant?s

unadjudicated criminal activity and need not agree unanimously or beyond a

reasonable doubt that the defendant committed those acts. (People v. Watson,

supra, 43 Cal.4th at p. 704; People v. Hoyos (2007) 41 Cal.4th 872, 927.)

The use of restrictive adjectives, such as ?extreme? and ?substantial,? in the

statute?s list of potential mitigating factors does not render it unconstitutional.

(People v. Watson, supra, 43 Cal.4th at p. 704.)

There is no constitutional obligation to instruct the jury to identify which

factors are aggravating and which are mitigating, or to instruct the jury to restrict

its consideration of evidence in this regard. (People v. Hamilton, supra, 45

Cal.4th at p. 961.)

69




Since we have concluded that capital defendants and noncapital defendants

are not similarly situated, the death penalty law does not violate equal protection

by denying capital defendants various procedural rights given to noncapital

defendants. (People v. Riggs (2008) 44 Cal.4th 248, 330.)

Finally, as we have done repeatedly in prior cases, we again reject the claim

that the death penalty itself violates international law or international norms or that

these norms require the application of the penalty to only the most extraordinary

crimes. (People v. Gutierrez (2009) 45 Cal.4th 789, 834; People v. Panah (2005)

35 Cal.4th 395, 500-501.)

G. Cumulative Error at the Penalty Phase

Defendant argues that the cumulative effect of errors in the penalty phase

requires reversal. The only error we have identified is the prosecutor?s brief

appeal to public retribution in arguing for a death sentence during closing

argument. We also have assumed, for sake of argument, that it was error for the

prosecutor to suggest that future prison regulations may allow conjugal visits for

inmates sentenced to life imprisonment. We concluded that both the error and

possible error are harmless when considered separately. Considered cumulatively,

the errors could not have prejudiced defendant.

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V. DISPOSITION

We affirm the judgment.

MORENO, J.


WE CONCUR: GEORGE, C. J.


KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

71


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

Name of Opinion People v. Martinez
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S074624
Date Filed: January 14, 2010
__________________________________________________________________________________

Court:
Superior
County: Santa Barbara
Judge: Rodney S. Melville

__________________________________________________________________________________

Attorneys for Appellant:

Christopher Johns, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher Johns
Johns & Allyn
1010 B Street, Suite 350
San Rafael, CA 94901
(415) 459-5223

Joseph P. Lee
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2398