1

Filed 6/7/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S078027

v. )

)

HOWARD LARCELL STREETER, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. FVA07519

____________________________________)

A jury convicted defendant Howard Larcell Streeter of the first degree 

murder of Yolanda Buttler. (Pen. Code, § 187.)1 It found true specialcircumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and the 

intentional infliction of torture (§ 190.2, subd. (a)(18)). The trial court declared a 

mistrial as to the penalty phase after the jury could not reach a verdict. At the 

beginning of the penalty phase retrial, the trial court released the jury after 

granting defendant‘s motion for a continuance. At the second penalty retrial, the 

jury returned a verdict of death, and the trial court imposed that sentence. This 

appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

 

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

indicated.
2

I. FACTS

A. Guilt Phase

1. The Prosecution‘s Case 

Defendant and Yolanda Buttler lived together for about five years in 

Fontana. They lived with their child, ―Little Howie,‖ Yolanda‘s two older

children, Patrick and Lawanda, and Yolanda‘s niece, Shavonda. 

In December 1996, Yolanda told her siblings, Lucinda and Quentin Buttler,

that defendant was beating her and had pulled hair, and that she was afraid of him 

and wanted to leave him. They agreed to help Yolanda secretly move out of her 

home when defendant was at work. Quentin advised Yolanda to get a restraining 

order. 

In early January 1997, Yolanda moved out with the children. Initially, 

Yolanda went to her sister‘s house in Los Angeles, but then she decided to stay in 

a motel for safety reasons. After a week‘s stay in the motel, Yolanda and the 

children moved to an apartment in Victorville. 

On February 7, 1997, Yolanda applied for a restraining order against 

defendant. In her declaration, she described an incident that had occurred on 

December 30, 1996, during which defendant had pulled her braided extensions so 

hard because she would not have sex with him that he pulled hair out of her head. 

In April 1997, defendant called Yolanda and convinced her to allow him to 

see Little Howie. They met in a public area without incident. Afterwards, 

defendant called frequently and tried to convince Yolanda to reconcile with him. 

He wanted to see Little Howie again. Yolanda agreed to meet him at a Chuck E. 

Cheese restaurant in Fontana. 
3

On April 27, 1997, Yolanda drove to the restaurant with Patrick, Shavonda, 

and Little Howie.2 Patrick accompanied his mother to protect her; Yolanda was 

nervous that defendant had obtained their telephone number in the Victorville area 

and had been calling them frequently in an attempt to get back together with her.3 

When they arrived at the restaurant, defendant was waiting for them. He was 

clapping his hands and appeared nervous. Patrick and Little Howie got out of the 

car, while Yolanda and Shavonda stayed inside the car. Defendant grabbed Little 

Howie and proceeded towards his car in the parking lot. Yolanda asked, ―Where 

are you taking him?‖ Defendant replied that he was taking him and said not to 

worry. 

Patrick stated that Yolanda followed defendant in her car, parked next to 

defendant‘s car, and got out of her car. Yolanda and defendant began to argue. 

Yolanda tried to take Little Howie out of defendant‘s car, but defendant pushed 

her away. They began pushing each other. Defendant went to the trunk of his car 

and retrieved a plastic container with gasoline in it. Seeing this, Yolanda ran back

towards her car. Defendant chased her and poured gasoline on the front of her car. 

Yolanda was on the other side of the car and tried to run away, but defendant 

caught up to her and poured gasoline on her. 

In the meantime, Shavonda — who was disabled and wore leg braces —

was still in the back seat of Yolanda‘s car. Patrick smelled gasoline and was 

scared because he knew the car could catch on fire. He jumped inside the car, 

drove it to the end of the parking lot, and ran back towards Yolanda and 

 

2 At the time of trial (one and one-half years after the offenses), Patrick was 

15 years old, Lawanda was 16 years old, Little Howie was six years old, and 

Shavonda was eight years old. 

3 A large part of Patrick‘s testimony was admitted by stipulation after he 

became very emotional on the witness stand. 
4

defendant. When he got to them, Patrick saw that Yolanda and the plastic

container were on the ground and defendant was hitting Yolanda. 

Bystanders also witnessed the events. John Martinez was in the restaurant‘s 

parking lot when he heard a woman yelling for help. A ―couple of‖ children were 

nearby. Martinez heard defendant yelling and saw him beating Yolanda and 

pulling her hair. Defendant struck Yolanda more than four times and slammed her 

to the ground. He went to his car, took out what appeared to be a plastic antifreeze 

container from the trunk, and poured gasoline from the container onto Yolanda‘s 

car and then on her body. Martinez then saw Patrick drive Yolanda‘s car to 

another area of the parking lot. Defendant dragged Yolanda back towards his car 

―because he had nothing to light the lady with.‖ Martinez ran into a store next to 

the restaurant and told the owner to call 911. When Martinez and the owner went 

outside, Yolanda was already on fire and was burning from the top of her head to 

her waist. People were throwing water on her and wrapping her in blankets. 

Anzerita Chonnay also saw the incident. She heard Yolanda and defendant 

yelling at each other and saw defendant hitting and kicking Yolanda. Chonnay ran 

inside a store to have someone call 911. When she returned outside, Chonnay saw 

defendant retrieve a container from the trunk of his car and began pouring 

something from it, while people were yelling at him. A man tried to intervene, but 

defendant pushed him away. Chonnay then saw Yolanda ―on fire.‖ The flames

shot up ―real high.‖ Several people tried to extinguish the fire with their clothing. 

While Yolanda was burning, Patrick watched as he held the two younger children. 

Edward Jasso was seated in his car in the restaurant‘s parking lot and saw 

Yolanda and defendant in the parking lot. Jasso saw liquid being thrown. At first, 

Jasso thought they were having a water fight, but then realized they were not 

playing after he saw defendant push Yolanda to the ground. Defendant began 

hitting and kicking Yolanda, and called her a ―fucking bitch.‖ Jasso got out of his 
5

car and told defendant to leave Yolanda alone. Defendant dragged Yolanda by her 

hair towards his car, released her, went to his car, and took off his shirt. Dazed, 

Yolanda began walking towards the Chuck E. Cheese restaurant. Jasso saw 

defendant retrieve something from his car. Thinking that the item might be a gun 

or knife, Jasso yelled for everyone to run. Defendant came towards Jasso and 

Yolanda and was holding a cigarette lighter. Jasso tried to grab the lighter from 

defendant, but his hand slipped off because defendant‘s arm was wet from 

gasoline. Defendant caught up to Yolanda and lit the lighter while he was only 

three to four inches away from her. Yolanda ―went up in flames‖ immediately. 

When defendant lit the lighter, Jasso tried to grab him, but having accidentally 

grabbed Yolanda instead, Jasso‘s arm also caught on fire. Defendant fled as Jasso 

tried to extinguish the fire on his arm. 

Richard Humphreys saw people yelling at defendant, who was running 

away from the scene. Humphreys got into his truck, followed defendant, and saw 

him attempting to climb a fence. Humphreys ordered defendant to stop. 

Defendant climbed down and began walking away. The police arrived and 

arrested defendant. Defendant smelled very strongly of gasoline and appeared to 

be under the influence of alcohol. However, defendant‘s blood sample, drawn at 

5:39 p.m. that night, showed no signs of drugs or alcohol.4 

When the paramedics arrived, they saw Yolanda standing within arm‘s 

reach of the children. She was calling to them and trying to grasp them. Yolanda 

was crying, screaming, and in pain. Her clothing was black, burnt, and 

smoldering, and had melted onto her skin. The paramedics tried to cool Yolanda 

down with saline solution. During the ride to the hospital, Yolanda was crying 

 

4 The 911 call reporting Yolanda on fire was received at 3:21 p.m. 
6

and screaming in pain, and repeatedly asked about her children. The paramedics 

reassured her that the children were with the police. Because Yolanda‘s burns 

were so deep and her skin was so thickened, the paramedics could not find or gain 

access intravenously to a vein and were unable to administer pain medication to 

Yolanda. Instead, they attempted to relieve her pain by pouring cold water on her 

burns. While being transported, Yolanda grasped one of the paramedics, pulled 

him close to her face, and begged, ―Just kill me. Please kill me.‖ Yolanda 

endured the 20-minute ambulance ride without any pain medication. 

Yolanda was admitted to the hospital in critical condition. She suffered 

extensive second and third degree burns from the waist up, including her entire 

face, arms, front chest, and back. Yolanda sustained burns to 55 to 60 percent of 

her body‘s surface. According to the pathologist, the extent of the pain suffered 

from these burns could be extreme and severe. Her lungs were dense and swollen, 

evidence of organ failure. Yolanda was treated in the hospital‘s burn unit for 10 

days until her death. She died from pulmonary failure caused by the effects of 

thermocutaneous burns. 

At the scene, the police found a clump of Yolanda‘s hair, one earring, and 

the plastic container. Defendant‘s car was in the parking lot with a ―Club‖ locking 

device on the steering wheel and the car‘s gas cap sitting on its bumper. 

Defendant‘s shoes, the plastic container, and several items of Yolanda‘s clothing 

tested positive for gasoline residue. No gasoline residue was found on defendant‘s 

shorts, socks, or underwear, or on Yolanda‘s earrings or hair. 

Inside the glove compartment of defendant‘s car, the police found a note 

written by defendant on the back of a smog certificate attached to a vehicle 

registration form. The note read:

―to mom and pop, I hate to do you gys like this but I don‘t like liveing the 

way I am so I don‘t know what to say but I love you both and I am very sorry to 
7

have to put you though this but my life is over I don‘t have any thing to live for 

any more, I know it going to cost a lot to berrie me but I am sorry I hope you both

understand and I know what I did to Youlanda is worng but she don‘t dersive to 

live like me. P.S. If you can get my son Baby Howie and raise him to the best of 

your abbilty. Tell him his dady is sorry for what I did but I will alway love him 

and to don‘t never fall in love with a women. Love alyaw Howie.‖ (Errors in 

original.) 

A sheriff‘s detective from the arson squad and a captain from the fire 

department conducted a joint investigation and concluded that gasoline had been 

poured on Yolanda and ignited. 

2. The Defense Case 

Defendant‘s defense was that he caused Yolanda‘s death, but did not intend 

to kill or torture her. Defendant claimed that he was so emotionally distraught, 

upset, and angry at Yolanda for taking his son away from him, for being late that 

afternoon, and for making him wait at the restaurant, that he was guilty of, at the 

most, second degree murder or voluntary manslaughter when he poured gasoline 

on Yolanda and ignited it. 

Defendant testified in his own defense. He stated that he and Yolanda had 

lived together since 1991 and had had a loving relationship until 1996, when their 

relationship began to fall apart. According to defendant, the strain was caused by 

Yolanda‘s desire to buy a house, which defendant could not afford. 

Defendant stated that when he came home on January 4, 1997 about 4:00 

p.m., he discovered that Yolanda had moved out with the children. She had given 

no indication she was leaving and had taken some of the furniture and electronic 

equipment. He was hurt and in shock. He called Yolanda‘s brother, Victor, who 

claimed that he did not know her whereabouts. Defendant bought alcohol and 
8

rock cocaine, went back to his home, drank the alcohol and took the drugs until 

10:00 or 11:00 p.m., and called Victor again. Victor told defendant to stop calling. 

Defendant then went to Victor‘s house to find Yolanda. When no one 

answered the door, defendant broke Victor‘s wife‘s van window with a bat. He 

then went to the house of another of Yolanda‘s brothers. When no one answered 

the door, defendant yelled that he wanted his wife and kids back, threw a rock 

through a window, and drove to Yolanda‘s sister‘s house. When her sister

Lucinda told defendant she did not know where Yolanda was, he warned that if 

they tried to keep his family from him, something bad would happen to them. 

Defendant called Victor again the next day. This time, Victor said that 

Yolanda and Little Howie were there, and that he could get his son. When 

defendant arrived at Victor‘s house, Victor told him to put his gun down, although 

defendant denied he had a gun. Victor kept stalling him. Suspecting that Yolanda 

and his son were not there and that he was being set up, defendant decided to 

leave. As he was driving away, he saw that police officers were parked around the 

corner waiting for him. The officers stopped and arrested him, and took him to 

jail. Defendant pleaded guilty to one count of assault with a deadly weapon and 

was released from jail on February 28, 1997. 

Defendant then ―moved from place to place,‖ having lost his apartment 

while he was in jail. Two weeks after his release, defendant‘s mechanic called and 

demanded payment for servicing Yolanda‘s car. After defendant refused to pay 

unless the mechanic told defendant where Yolanda was staying, the mechanic 

provided Yolanda‘s telephone number. Defendant called Yolanda and said he 

loved her and wanted her back. She refused to give him another chance. 

Defendant called again that same night and told Yolanda he wanted to see the 

children. Agreeing to meet with defendant at the Discovery Zone, Yolanda 
9

brought Little Howie and Shavonda and spent an hour and 45 minutes with him. 

When defendant said he wanted to see them again, Yolanda told him to call. 

During the next several weeks, defendant repeatedly called Yolanda and 

told her he wanted her back. When she refused, defendant warned that if she did 

not return, he would do something to himself. They agreed to meet at a Chuck E. 

Cheese restaurant at 4:00 p.m. on April 27, 1997. Defendant stated that he arrived 

on time, and became angry and frustrated because he waited for Yolanda and the 

children for 30 to 45 minutes. When Yolanda drove up, defendant took Little 

Howie out of Yolanda‘s car, declared he was going to leave, placed Little Howie 

inside his car, and got into the driver‘s seat. As he tried to remove the locking 

device from the steering wheel, Yolanda began arguing with defendant about 

taking Little Howie, and scratched and hit defendant. Defendant pushed her away 

and got out of the car. They got into a ―scuffle.‖ Defendant stated that he took out 

the container of gasoline that he normally kept in the trunk of his car for his 

carburetor, but did not know why he took the container out. He was upset and in a 

―rage‖ and remembered only ―bits and pieces‖ of the proceeding events, including 

pouring gasoline on Yolanda and himself. Someone tried to grab him, and the 

next thing he knew, they were both on fire. 

Defendant testified that he did not intend to set Yolanda on fire and kill her. 

Regarding the note, defendant explained that it was a suicide note and his

statement he knew what he did to Yolanda was wrong was only a reference to the 

December 30, 1996 incident, the subject of Yolanda‘s declaration for the 

restraining order. Defendant claimed that, during that incident, they argued over 

Yolanda‘s refusal to have sex with him and that he only pulled on Yolanda‘s 

braided hair extensions so that she would come to bed. He denied raping her and 

claimed he still loved her. Defendant further claimed that he did not intend to hurt 

Yolanda. Instead, when he wrote that Yolanda did not deserve ―to live like me,‖ 
10

he meant only that she did not deserve to live the lifestyle that he was living (i.e., 

drinking alcohol and taking drugs) and that she deserved a house, which he could 

not afford. He intended to show the note to Yolanda in the hope she would feel 

sorry for him and take him back. The note asked his parents to raise Little Howie 

because defendant did not want him to be raised by a stepfather. 

On cross-examination, defendant admitted that although the note was dated 

April 27, 1997, he wrote the note three to five days earlier when he was drinking. 

Defendant claimed that he did not know how his gas cap got on the bumper, but 

thought that he might have left it there when he put gasoline in his car in Los 

Angeles before driving to the Chuck E. Cheese restaurant in Fontana. He denied 

that he siphoned the gasoline from his fuel tank to put into the plastic antifreeze 

container before Yolanda‘s arrival. Defendant denied that he planned to run away 

from the scene and that he put the Club on his car to prevent its theft after he fled. 

On redirect examination, defendant testified that when he grabbed Little 

Howie from Yolanda‘s car, his intent was to leave with the baby. 

3. Rebuttal

Yolanda‘s children, Patrick and Lawanda, testified about their mother‘s and 

defendant‘s relationship. Patrick stated that defendant was mean to Yolanda and 

that Patrick went to Chuck E. Cheese so that nothing bad would happen. He did 

not see defendant attempt to remove the Club from the steering wheel. 

Lawanda stated that she disliked defendant because he threatened Yolanda, 

pushed her around, and threw things at her. Lawanda described the December 30, 

1996 incident. She was awakened by her mother‘s screams. Lawanda saw 

defendant pulling Yolanda‘s hair and dragging Shavonda by her leg braces, while 

Little Howie watched. Defendant warned Lawanda that if she wanted to watch, he 

would pull her mother‘s hair even harder. Defendant got on top of Yolanda and 
11

did ―something sexually‖ to Yolanda after she refused to have sex with him. 

According to Lawanda, defendant ―tortured‖ Yolanda for hours and Yolanda 

complained her head was sore the next day. Defendant would throw things 

around and shove Yolanda around ―continually.‖ He behaved this way during the 

last year of their relationship, and possibly even before. 

Yolanda‘s brother, Victor Buttler, testified that on January 4, 1997, 

defendant pounded loudly on Victor‘s door around 3:00 or 4:00 a.m. He then 

broke the window of Victor‘s wife‘s van. When Victor ran outside, he saw 

defendant driving away. Victor called the police and filed a report. Later that 

night, defendant called Victor, admitted he broke the van window, and warned that 

people in the family would start ―dropping like flies‖ if Victor did not divulge 

Yolanda‘s whereabouts. Defendant returned that night. As defendant was 

walking towards Victor‘s front door, Victor saw him pull out a gun and 

immediately closed the door. Defendant walked back to his car and drove away. 

Over the next several weeks, defendant continued to call Victor often, threatening 

to kill people in his family if he did not find out Yolanda‘s whereabouts. 

Yolanda‘s sister, Lucinda Buttler, testified that Yolanda spoke of leaving 

defendant for two years. During the last year or two of their relationship, Yolanda 

explained that defendant was abusive to her. Lucinda once saw defendant push 

Yolanda out of their mother‘s house. Yolanda would often call Lucinda secretly 

because defendant did not want the sisters to talk with or see each other. 

The day after Yolanda moved out, defendant went to Lucinda‘s house and 

asked where Yolanda was. When Lucinda replied she did not know, defendant 

warned that if Yolanda did not show up, he would start killing her family members 

one by one. He told Lucinda what he had done to Victor so that she would take 

his threats seriously. 
12

B. Penalty Phase

1. The Prosecution‘s Case

Because the penalty phase was tried before a different jury than the guilt 

phase, the prosecution presented much of the guilt phase evidence, relating to 

defendant‘s history with Yolanda and the circumstances of the crime — at the 

penalty phase. That evidence included defendant‘s abusive and controlling 

behavior towards Yolanda, the December 30, 1996 incident, which was the subject 

of Yolanda‘s restraining order, defendant‘s visits to the homes of Yolanda‘s 

siblings after Yolanda left him, his threats to her siblings when he was trying to 

locate Yolanda, and expert testimony on the burns suffered by Yolanda. 

Other evidence presented at the penalty phase included the testimony of 

another of Yolanda‘s brothers and additional testimony by Yolanda‘s brother,

Victor. Rallin Buttler, another brother, testified that after Yolanda moved out, 

defendant made threatening calls to Rallin and his mother, who lived in Rallin‘s 

house. Defendant called Rallin‘s mother names and threatened to do bodily harm 

to her and her family if she did not disclose Yolanda‘s whereabouts. Defendant 

threatened to kill Rallin, to ―take‖ him and his entire family ―out‖ if they refused 

to give the location of Yolanda, and to ―blow away‖ anyone who got in his way, 

including Yolanda. Defendant said that when he found Yolanda, she was going to 

regret it. 

Rallin testified that on January 4, 1997, he and his family were awakened 

by a loud banging on the front door. Rallin heard the shattering of his front 

window and saw defendant driving away in defendant‘s car. Rallin saw 10-15 

dents in his front door that appeared to have been made by a gun. 

Victor Buttler testified that Yolanda told him she was afraid of defendant 

and that he had threatened to kill her if she ever left him. 
13

The prosecution also presented evidence that defendant had pleaded guilty 

to felony assault with a deadly weapon (§ 245, subd. (a)(2)) on February 18, 1997 

for the gun incident at Victor‘s house and had also been convicted of shooting at 

an inhabited dwelling (§ 246) in 1982, a misdemeanor. On the felony assault 

conviction, defendant was placed on probation. Regarding the conviction for 

shooting at an inhabited dwelling, the prosecution presented evidence of the 

underlying circumstances. Defendant had followed Paul Triplett, a man who was 

dating the mother of one of defendant‘s children, and they got into a physical 

altercation. After the fight, defendant fired a shotgun into the house Triplett had 

entered. The shot shattered the window in a room in which an infant lay in a 

bassinet. No one was hurt. 

The prosecution presented victim impact evidence, including the severe 

emotional trauma Little Howie and the other children suffered and the behavioral 

problems they were still exhibiting. 

2. The Defense Case

Defendant presented testimony from his mother and a neighbor who 

portrayed defendant as a devoted father, son, and boyfriend. Defendant‘s mother 

testified that Little Howie did not experience traumatic shock from his mother‘s 

death or act differently after she died. 

Defendant testified in detail about his loving relationship with Yolanda, his 

desperation when she left him, his use of drugs and alcohol before the crime, and 

his writing the suicide note as a ploy to get Yolanda back, not as an expression of 

his intent to kill her. He denied that he threatened Yolanda‘s family members or 

used a gun at her brothers‘ houses. As in the guilt phase, defendant testified in 

detail about the events leading up to the murder, including his phone calls to

Yolanda, his prior meeting with Yolanda and the children, the fight between him 
14

and Yolanda at the Chuck E. Cheese in Fontana, and his lack of memory regarding 

his pouring gasoline on Yolanda and setting her on fire. He denied that he 

intended to kill or hurt Yolanda. Also, as in the guilt phase, defendant testified 

that on December 30, 1996, he only pulled Yolanda‘s braided hair extensions so 

that she would come to bed. 

Defendant explained that as expressed in his note to Yolanda, he intended 

to kill himself, but had no idea how, though the possibility of a police chase or 

police shooting occurred to him. He wanted to have someone else kill him 

because he is Christian and wanted to go to heaven. He was sorry for what he had 

done to Yolanda, but that because his life belongs to the Lord Jesus Christ and if 

God gives him the opportunity, he will make it up by leading other inmates in the 

right direction. 

3. Rebuttal

The People‘s rebuttal consisted primarily of defendant‘s statements during 

the booking process, and to three psychologists who examined him during the 

pendency of the case. 

During the booking process, defendant made a spontaneous statement that 

his ―ex-wife‖ had broken up with him in January, she had packed up the children 

and moved to Victorville, she had ruined his life, and he wanted to ruin her life. 

In a statement to one of the psychologists, defendant admitted that he 

threatened Yolanda‘s family. In statements to two psychologists, defendant 

described how he had set Yolanda on fire. In one statement, defendant described 

that he had splashed Yolanda with gasoline, but claimed that he lit the lighter only 

to scare her. A bystander grabbed his hand, causing him to flick the lighter and 

ignite the gasoline. In another statement, defendant stated that he and Yolanda 

had argued over Little Howie and that Yolanda started scratching and hitting 
15

defendant. Defendant removed the gasoline from his car, doused her with it, then 

lit a cigarette lighter, which led to her being burned. 

II. DISCUSSION

A. Jury Selection Issue

Peremptory Challenges

Defendant claims that during voir dire of the penalty phase retrial, the 

prosecutor improperly exercised peremptory challenges against three AfricanAmerican prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476 

U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Defendant 

is and the victim was African–American. The applicable law is well settled. 

Under Wheeler, ―  ̳[a] prosecutor's use of peremptory challenges to strike 

prospective jurors on the basis of group bias—that is, bias against ―members of an 

identifiable group distinguished on racial, religious, ethnic, or similar grounds —

violates the right of a criminal defendant to trial by a jury drawn from a 

representative cross-section of the community under article I, section 16 of the 

state Constitution. [Citations.]‘ ‖ (People v. Hawthorne (2009) 46 Cal.4th 67, 77-

78.) Such a practice also violates the defendant's right to equal protection under 

the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v.

Hawthorne, supra, 46 Cal.4th at p. 78.) 

In ruling on a motion challenging the exercise of peremptory strikes, the 

trial court follows a three-step procedure. ―First, the defendant must make out a 

prima facie case  ̳by showing that the totality of the relevant facts gives rise to an 

inference of discriminatory purpose.‘ [Citations.] Second, once the defendant has 

made out a prima facie case, the  ̳burden shifts to the State to explain adequately 

the racial exclusion‘ by offering permissible race-neutral justifications for the 

strikes. [Citations.] Third,  ̳[i]f a race-neutral explanation is tendered, the trial 
16

court must then decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California (2005) 545 

U.S. 162, 168, fn. omitted (Johnson).)

Without objection from defense counsel, the prosecutor exercised his third

peremptory challenge to excuse Prospective Juror No. 3 and his fourth peremptory 

challenge to excuse Prospective Juror No. 44. After the prosecutor used his fifth 

and final challenge to excuse Prospective Juror No. 46, defense counsel made a

Wheeler/Batson motion because the prosecutor had excused three prospective 

jurors who were African–American. At the time of the motion, seven AfricanAmericans had been called to the jury box. The prosecutor peremptorily excused 

three of them, while the defense peremptorily excused two of them. Two AfricanAmerican prospective jurors remained in the jury box. 

In support of his motion, defendant argued that the prosecutor used his last 

three peremptory challenges to ―systematically eliminat[e] Black jurors.‖ When 

the trial court noted that the defense peremptorily challenged two AfricanAmerican prospective jurors, defense counsel explained that he was justified in 

those excusals, and that they had come after the trial court denied his challenges to

them for cause. The trial court responded, ―I don‘t think there is any dispute that 

you had a valid reason in your mind and your client‘s mind to excuse the two. 

You did. That is not an issue, really.‖ 

The prosecutor argued that defendant failed to make a prima facie showing 

and offered to relate his concerns regarding Prospective Juror No. 44. The trial 

court responded, ―If you wish.‖ The prosecutor commented that she had a BA in 

sociology, and had ―done social work and nursing all of her life.‖ The prosecutor 

further commented that her questionnaire answers indicated that although some 

murders may be intentional, the fact they are committed by a person who is 

temporarily insane or emotional might affect her decision regarding imposition of
17

the death penalty. The prosecutor explained that ―given the facts of this particular 

case, I don‘t think that juror could ever actually render the death verdict given 

what we know to be the facts of our case.‖ The prosecutor also expressed concern 

with Prospective Juror No. 44‘s demeanor, noting that she appeared to be distant 

when the other prospective jurors responded to questions and appeared to be a 

―loner,‖ which could lead to a hung jury.

The prosecutor pointed out that he and defense counsel stipulated to several 

excusals for cause, including two African-American prospective jurors who could 

not be impartial, and that he argued vigorously to retain the two Black prospective 

jurors that had been challenged by the defense for cause, but that the defense used 

its peremptory challenges against them. The prosecutor asserted that he

challenged the African-American prospective jurors ―for reasons having nothing 

to do with skin color.‖ 

The trial court denied defendant‘s motion, finding there was an insufficient 

showing of a prima facie case. 

Defendant argues that although the trial court did not state which standard it 

was using, it presumptively used the wrong standard, i.e., whether defendant 

established a ―strong likelihood‖ that a juror has been peremptorily challenged on 

the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.) After the trial in 

this case, the high court disapproved that standard for purposes of a defendant‘s 

establishing a prima facie case. (Johnson, supra, 545 U.S. at pp. 166-168.) Under 

Batson, the court stated that the prima facie burden is simply to ―produc[e] 

evidence sufficient to permit the trial judge to draw an inference that 

discrimination has occurred.‖ (Johnson, supra, 545 U.S. at p. 170.) In addition, 

defendant claims that in finding no prima facie showing, the trial court relied on 

irrelevant grounds.
18

Regardless of the standard or considerations used by the trial court, we 

have reviewed the record independently (applying the high court‘s standard) to 

resolve the legal question whether the record supports an inference that the 

prosecutor excused a juror on the basis of race. (People v. Hawthorne, supra, 46 

Cal.4th at p. 79.) We conclude that the record does not support such an inference.

In establishing a prima facie showing, a defendant has the burden of 

demonstrating that the facts and circumstances of the case raise an inference that 

the prosecutor excluded prospective jurors based on race. (Batson, supra, 476 

U.S. at p. 96.) Notably, defendant‘s only stated basis for establishing a prima 

facie case at trial was that the prosecutor exercised three of five peremptory 

challenges against African-American jurors. Defendant attempts to buttress that 

stated basis by arguing on appeal that 28 percent of the prospective jurors called to 

the jury box were African-American, while the prosecutor used a disproportionate 

ratio of his strikes (60 percent) against African-Americans. However, defendant‘s 

numerical showing falls short of a prima facie case. (People v. Clark (2011) 52 

Cal.4th 856, 905 [no prima facie case where prosecutor challenged four of five 

African-American prospective jurors ]; People v. Cornwell (2005) 37 Cal.4th 50, 

70 [no prima facie case where prosecutor challenged one out of two AfricanAmerican prospective jurors]; People v. Yeoman (2003) 31 Cal.4th 93, 115 [prima 

facie case not established by cursory reference to prosecutor‘s strike of three 

prospective jurors by name, number, occupation and race]; People v. Farnum

(2002) 28 Cal.4th 107, 136-137 [prima facie case not established by asserting 

prosecutor exercised four of five peremptory challenges against Black prospective 

jurors]; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [no prima 

facie case established by asserting prosecutor exercised three peremptory 

challenges against Black prospective jurors].)
19

The totality of the relevant facts of voir dire refutes an inference of 

discriminatory purpose. (People v. Clark, supra, 52 Cal.4th at p. 905; People v.

Gray (2005) 37 Cal.4th 168, 186.) Before he exercised a single peremptory 

challenge against an African-American juror, the prosecutor accepted the jury four

times with up to three African-American prospective jurors seated in the jury box. 

During the first three times, the prosecutor accepted the jury with two AfricanAmerican prospective jurors (Nos. 3 and 23) seated.

Another African-American prospective juror (No. 35) came into the jury 

box to replace an excused juror. Defense counsel challenged Prospective Juror 

No. 35 for cause. The prosecutor opposed the challenge and questioned the juror 

in an attempt to rehabilitate him. The trial court denied defendant‘s challenge for 

cause. 

The prosecutor accepted the jury a fourth time with three African-American

prospective jurors (Nos. 3, 23, and 35) seated. At that point, defense counsel did 

not peremptorily challenge Prospective Juror No. 35, but used his fifth peremptory 

challenge against another prospective juror. That juror was replaced with 

Prospective Juror No. 42, who was African-American. The prosecutor then used 

his third peremptory challenge against Prospective Juror No. 3, which was his first 

peremptory challenge against an African-American juror. Prospective Juror No. 3

was replaced with Prospective Juror No. 43, who was also African-American. 

Defense counsel challenged Prospective Juror No. 43 for cause. The 

prosecutor opposed the challenge and questioned the juror in an attempt to 

rehabilitate him. The trial court again denied defendant‘s challenge for cause. 

Defense counsel exercised his sixth peremptory challenge against 

Prospective Juror No. 43, who was replaced by another African-American

prospective juror (44). The prosecutor exercised his fourth peremptory challenge 

against Prospective Juror No. 44, which was his second peremptory challenge 
20

against an African-American juror. Prospective Juror No. 44 was replaced by 

another African-American juror (No. 46), leaving four African-American jurors 

seated in the jury box. After defense counsel exercised his seventh peremptory 

challenge, the prosecutor accepted the jury a fifth time, with those four AfricanAmerican jurors (Nos. 23, 35, 42, and 46) seated. Defense counsel used his eighth 

peremptory challenge against Prospective Juror No. 35. The prosecutor used his 

fifth peremptory challenge against Prospective Juror No. 46, leaving two AfricanAmerican prospective jurors seated in the jury box (Nos. 23 and 42). Defendant 

then made a Wheeler/Batson motion. 

After the trial court denied the motion, defense counsel exercised his ninth 

and final peremptory challenge against Prospective Juror No. 42, his third 

peremptory challenge against an African-American prospective juror. Prospective 

Juror No. 23 was the only African-American juror who sat on the final penalty 

phase jury. 

Thus, the record reflects that before defendant made the Wheeler/Batson

motion, the prosecutor accepted the jury five times with up to four AfricanAmerican prospective jurors seated in the jury box. The prosecutor accepted the 

jury four times with Prospective Juror No. 3 seated and one time with Prospective 

Juror No. 46 seated before finally excusing them. (People v. Clark, supra, 52 

Cal.4th at p. 906 [no prima facie case where prosecutor passed two AfricanAmerican jurors during several rounds before finally excusing them].) The 

prosecutor‘s acceptance of a panel including African-American prospective jurors, 

while not conclusive, was ―  ̳an indication of the prosecutor‘s good faith in 

exercising his peremptories, and . . . an appropriate fact for the trial judge to 

consider in ruling on a Wheeler objection . . . .‘ ‖ (People v. Hartsch (2010) 49 

Cal.4th 472, 487.) The record also reflects that there was an African-American on 

the jury panel ultimately sworn, and the prosecutor repeatedly passed that juror on 
21

his peremptory challenges. (People v. Clark, supra, 52 Cal.4th at p. 906; People 

v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Adanandus, supra, 157 

Cal.App.4th at pp. 503-504.) It further reflects that after extensive questioning, 

the prosecutor successfully rehabilitated two African-American jurors, Prospective 

Jurors Nos. 35 and 43, staving off defense challenges for cause. The prosecutor‘s

desire to keep African-American jurors on the jury tended to show that the 

prosecutor was motivated by the jurors‘ individual views instead of their race. 

(People v. Hartsch, supra, 49 Cal.4th at p. 487.)

Finally, the record of voir dire shows race-neutral reasons for the 

prosecutor‘s excusals of Prospective Jurors Nos. 3, 44, and 46. Prospective Juror 

No. 3 was a married, 27-year-old woman with two children who worked for the 

San Bernardino County Department of Social Services as a social services 

caseworker. On the questionnaire, she stated that she ―strongly disagreed‖ that 

anyone who intentionally killed another person should get the death penalty. She 

stated that if under certain circumstances, the person killed with ―good reason‖ he 

or she ―should be punished, but not put to death.‖ She explained, ―[w]hen I say 

good reason, I mean in their minds.‖ Prospective Juror No. 3 further stated that 

―maybe‖ the death penalty was appropriate in cases where a person of sound mind 

admits to death and commits willful acts of cruelty, such as execution-style or 

gang murders. 

From Prospective Juror No. 3‘s responses, the prosecutor could have

reasonably been concerned with her emphasis on the killer‘s subjective 

perspective, especially in a case such as this one, where the defense would be that 

the defendant snapped under extreme emotional despair and did not intend to kill. 

Her responses also indicated a willingness to impose the death penalty only under 

very limited circumstances and if the defendant confessed, facts not present in this 

case. As with Prospective Juror No. 44, the prosecutor could also have reasonably 
22

believed that as a social services caseworker, Prospective Juror No. 3 might be 

more sympathetic to the defense. (People v. Clark, supra, 52 Cal.4th at p. 907 

[peremptory challenge properly based on juror‘s experience in counseling or social 

services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [peremptory 

challenge properly based on juror‘s educational background and experience in 

psychiatry or psychology].) )

Prospective Juror No. 44 was a 63-year-old widow with grown children, 

who worked for San Bernardino County as a supervising social worker. She 

graduated from college with a BA in sociology and was a social worker for 30 

years. On the questionnaire, she stated that she had served 30 days in custody for 

committing credit card fraud 30 years earlier and had visited her husband in jail 

for drunk driving. She indicated that her decision to impose the death penalty 

might be affected where an intentional murder is ―so emotional,‖ or the person is 

temporarily insane. 

Other than the prosecutor‘s concerns with the juror‘s demeanor, the record 

supports his stated concerns regarding Prospective Juror No. 44‘s employment as a 

social worker, and her unwillingness to impose the death penalty in cases such as 

this one involving a defense centered on defendant‘s emotional instability. 

Prospective Juror No. 46 was a married, 44-year-old woman with three 

children, who worked for the Los Angeles County Department of Public Health as 

an eligibility worker and Medi-Cal liaison. On the questionnaire, she indicated 

she had not thought much about the death penalty, could not think of a general 

purpose it would serve, and believed that life imprisonment was a harsher penalty 

than death. Prospective Juror No. 46 strongly disagreed that anyone who 

intentionally kills another person should automatically get the death penalty. 

When asked if she could impose the death penalty in an appropriate case, she 

answered ―possibly.‖ 
23

From Prospective Juror No. 46‘s responses, the prosecutor could have 

reasonably concluded that she was uncertain about her ability or willingness to 

impose the death penalty, even in the most extreme cases. Also, as with 

Prospective Jurors Nos. 3 and 44, the prosecutor could have reasonably been 

concerned with Prospective Juror No. 46‘s employment in the social services field. 

Thus, the record discloses race-neutral reasons for the excusals.5 

Because defendant failed to meet his burden of establishing a prima facie 

case of group discrimination, the trial court correctly denied his Wheeler/Batson

motion. 

B. Pretrial Issues Regarding Penalty Phase

1. Denial of Defendant‘s Marsden Motion

Defendant claims that the trial court improperly denied his motion to 

replace appointed counsel at the penalty phase retrial, resulting in a violation of his 

federal and state constitutional rights. The trial court did not abuse its discretion 

in denying defendant‘s motion.

a. Facts

On August 27, 1998, during jury selection for the guilt phase of trial, 

defendant made his first motion to substitute Defense Counsel Robert Amador. 

The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. 

 

5 For the first time on appeal, defendant asks us to conduct a comparative 

analysis regarding the prospective jurors‘ responses and the prosecutor‘s 

questioning of them. Here, the trial court did not ask the prosecutor for his 

reasons for the excusals or rule on the prosecutor‘s actual reasons for excusing 

Prospective Juror No. 44. (See People v. Mills (2010) 48 Cal.4th 158, 174, fn. 3; 

People v. Hawthorne, supra, 46 Cal.4th at p. 79, fn. 2.) Because the trial court 

determined there was no showing of a prima facie case, we decline to conduct a 

comparative juror analysis in this ―  ̳first-stage‘ ‖ Wheeler/Batson case. (People v. 

Hawthorne, supra, 46 Cal.4th at p. 80, fn. 3.)
24

Defendant stated that, although counsel had been assigned at the beginning of the 

case, defendant had not seen any police reports or documents and was unaware of 

his defense. He believed that Amador was not prepared because he had not filed a 

written response to one of the prosecution‘s motions, but had only responded 

verbally. When defendant stated he believed counsel was not adequately 

defending him, the trial court asked him to provide specific examples of what he 

wanted Amador to do that he had not done. Defendant responded that the 

prosecution‘s motions contained ―lies‖ and he wanted Amador to challenge the 

truthfulness of the evidence. The court noted that defendant had not proffered any 

facts to support his claim. It stated that defendant had not provided a reason for 

relieving Amador, but appointed independent counsel to provide assistance to 

defendant on the Marsden motion.

On August 31, 1998, at the next hearing on the Marsden motion, Charles 

Nacsin, who had been appointed to assist on the motion, announced that defendant 

wanted to withdraw the motion. Defendant told the court that after speaking with 

Amador, his concerns had been resolved and he understood what Amador was 

doing. 

On September 21, 1998, the jury returned guilty verdicts and true findings 

on the special circumstances. On October 14, 1998, the jury advised the court it 

could not reach a verdict on the penalty; the trial court found the jury was 

hopelessly deadlocked and declared a mistrial on the penalty phase of trial. 

On November 2, 1998, during jury selection for the first penalty phase 

retrial, Defense Counsel Amador moved to be relieved as counsel.6 Amador 

 

6 On November 25, 1998, the trial court discharged the jury after granting 

defendant‘s motion for a continuance. Defendant‘s second penalty phase retrial 

began on January 19, 1999. 
25

stated he was concerned that another attorney had been visiting defendant in jail,

that this would interfere with his representation of defendant, and that defendant 

refused to provide Amador reasons for the visits. A jail log revealed that Attorney 

David Karlson had visited defendant nine times from July 25, 1998 to October 28, 

1998. Defendant denied that Karlson was interfering with Amador‘s 

representation. He explained that Karlson had said there was nothing he could do 

for defendant on his case until after the penalty phase ended. Defendant felt that 

because Amador did not want to represent him, he too did not want Amador 

representing him. Amador clarified that he was not currently asking to be 

relieved, but that if Karlson‘s jail visits continued, he would ask to be relieved. 

The court issued an order to show cause against Karlson and appointed Attorney

Nascin to consult with defendant regarding the need for a Marsden motion. 

On November 4, 1998, the trial court held a hearing regarding Attorney 

Karlson‘s jail visits with defendant. Karlson testified that defendant asked to 

speak with him after the jury hung on the penalty verdict. On October 28th, 

Karlson visited defendant briefly and told him that because defendant was already 

represented, he could not advise him on the case until after the trial and his 

attorney-client relationship with Amador had ended. Karlson assured the court he 

would follow its order barring any future contacts with defendant. Attorney 

Nascin then requested a Marsden hearing; after talking with defendant, he felt that 

there was a breakdown in the relationship between defendant and Amador. 

On the following day, the trial court held a Marsden hearing, with Nascin 

representing defendant. Defendant initially testified that he had lost confidence in 

Amador for two reasons. First, Amador had asked to be relieved as counsel. 

Second, Amador had failed to respond to his requests during the guilt phase to

pursue other evidence and to ask witnesses certain questions. When asked about 

his first Marsden motion, defendant explained that he had withdrawn the motion 
26

after Amador assured him things would be better and that ―he had stuff up his 

sleeves he was going to bring out.‖ But, as the trial progressed, defendant felt that 

Amador was not fighting for him and giving him ―100 percent,‖ and that he did 

not receive a fair trial. 

Defendant testified that his feelings about Amador ―really changed‖ when 

the trial court dismissed the jury after its penalty deadlock. He had questions on 

what was going to happen next, but could not reach Amador by telephone. 

Defendant was told that Amador had gone to Reno and would return the following 

morning. But, Amador did not call or visit him during the two-week period after 

the mistrial. Because he and his family were concerned about the future 

proceedings, defendant contacted Karlson for information, but Karlson did not 

provide any answers. Defendant stated that he lost confidence in Amador because 

he felt that if Amador was professional and had been doing a good job, he would 

not have been concerned about defendant‘s contacts with Karlson. Defendant also 

questioned why Amador had advised him not to testify and why he told the court 

of that advisement, even though defendant wanted to testify. Finally, defendant 

stated he felt that there was no communication between him and Amador. 

Amador testified that on defendant‘s suggestion, the defense team spoke to 

several witnesses. Because several of these witnesses had ―nothing good to say‖ 

about defendant, they determined that these witnesses would have caused more 

harm to defendant‘s case. For example, one witness related that a few days before 

he burned Yolanda, defendant wanted to borrow a handgun. Amador denied that 

he told defendant that he had ―something up‖ his ―sleeve.‖ 

Amador testified that because defendant did not want him as his lawyer and 

did not like Amador, he felt uncomfortable and did not want to represent 

defendant. Amador felt that their relationship had broken down and was 

irreparably harmed. Because defendant refused to tell him why Attorney Karlson 
27

was visiting him so often, Amador felt that defendant was not candid and did not 

cooperate with him. However, Amador believed that if defendant was counseled 

to cooperate and communicate with him, Amador could still try the case. His 

personal feelings would not detract from his professional representation of 

defendant. 

On the adequacy of Amador‘s representation, the trial court found that 

defendant‘s complaints about his failure to pursue certain matters and his 

unpreparedness were not specific enough, and that counsel‘s advice to defendant 

not to testify was an insufficient showing of ineffective representation. Regarding 

Amador‘s failure to see defendant after the penalty mistrial, the court noted that 

the quality of representation does not depend solely on the number of times a 

defendant speaks with his attorney. It commented that throughout the proceedings 

in this case, Amador conducted the defense appropriately, was prepared, and 

argued persuasively. It saw nothing unfair about the trial. The court noted that 

given the evidence and defendant‘s confession at the guilt phase, defendant could 

not have expected a not guilty verdict. The court further noted that, at the first 

penalty trial, Amador was able to convince a jury to hang on the verdict. 

The trial court found that ―what we have here, very unfortunately, is a 

personal relationship that has broken down.‖ The court noted that Amador asked 

to be relieved based only on his perception that defendant had been consulting 

another attorney, who might have been ―second-guessing‖ Amador‘s 

representation of defendant. The court further noted that defendant ―joined in‖ 

Amador‘s motion, but did not initiate the motion for relief. It was only at that 

point that defendant lost confidence in Amador‘s ability to defend him. 

Despite their personal relationship, the trial court denied Amador‘s and 

defendant‘s motions for relief of counsel because there was not an irreconcilable 

conflict and there was no showing of ineffective representation. The court
28

accepted Amador‘s representation that his personal feelings would not influence or 

affect his ability to professionally represent defendant and advised defendant to 

cooperate and communicate with his attorney. 

b. Discussion

―When a defendant seeks substitution of appointed counsel pursuant to 

People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44,  ̳the trial 

court must permit the defendant to explain the basis of his contention and to relate 

specific instances of inadequate performance. A defendant is entitled to relief if 

the record clearly shows that the appointed counsel is not providing adequate 

representation or that defendant and counsel have become embroiled in such an 

irreconcilable conflict that ineffective representation is likely to result.‘ ‖ (People 

v. Taylor (2010) 48 Cal.4th 574, 599.) ―A trial court should grant a defendant‘s 

Marsden motion only when the defendant has made  ̳a substantial showing that 

failure to order substitution is likely to result in constitutionally inadequate 

representation.‘ ‖ (People v. Hines (1997) 15 Cal.4th 997, 1025.) 

―We review the denial of a Marsden motion for abuse of discretion.‖ 

(People v. Taylor, supra, 48 Cal.4th at p. 599.) ―Denial is not an abuse of 

discretion  ̳unless the defendant has shown that a failure to replace counsel would 

substantially impair the defendant's right to assistance of counsel.‘ ‖ (Ibid.)

We conclude that defendant has failed to establish that the trial court 

abused its discretion in denying his Marsden motion. Although defendant 

emphasizes that Amador failed to communicate with him, defendant‘s testimony 

reveals that this claim was based primarily on counsel‘s failure to speak with him 

during the two-week period between the penalty phase mistrial and the motions for 

relief of counsel. Although not answered immediately, defendant‘s questions 

about the upcoming proceedings presumably were answered later. Similarly, 
29

defendant‘s lack of confidence in Amador was based primarily on counsel‘s 

failure to communicate with defendant during that two-week period and on 

counsel‘s request to be removed. However, as the trial court explained, ―the 

number of times one sees his attorney, and the way in which one relates with his 

attorney, does not sufficiently establish incompetence.‖ (See People v. Silva

(1988) 45 Cal.3d 604, 622.) After presiding over the guilt phase trial and the first 

penalty phase trial, the court noted that counsel had performed adequately and 

accepted counsel‘s representation he could continue to represent defendant 

professionally. Although defendant now points to some of Amador‘s actions as 

specific examples of a ―rather tepid‖ performance throughout the case, he failed to 

raise those claims to the trial court. In any event, tactical disagreements between a 

defendant and his attorney or a defendant‘s frustration with counsel are not 

sufficient cause for substitution of counsel. (People v. Jackson (2009) 45 Cal.4th 

662, 688; People v. Barnett (1998) 17 Cal.4th 1044, 1092.) 

On this record, the court reasonably concluded that defendant failed to

show counsel provided inadequate representation or that any conflict between 

defendant and Amador was irreconcilable. There was no abuse of discretion. 

2. Absence of Defense Counsel and Presence of Substitute Attorney 

During Portion of Jury Selection At Penalty Phase Retrial 

Defendant claims that the absence of his attorney and the presence of 

substitute counsel during the distribution of juror questionnaires and hardship 

screening at the penalty phase retrial deprived him of his right to counsel under the 

federal and state constitutions. He is wrong. 

On January 19, 1999, the first day of the second penalty phase retrial (third 

penalty phase trial), Attorney Amador was not present in court because of illness. 

Another attorney, Julian Ducre, was present to represent defendant during 

Amador‘s absence. The trial court asked defendant if somebody spoke to him 
30

―about the situation with Mr. Amador.‖ Defendant replied yes. The court 

explained that during the proceedings in Amador‘s absence and Ducre‘s presence, 

―nothing will happen regarding the presentation of your case or the prosecution‘s 

case except to explain to the jury the procedure and hand out the questionnaires 

and have them returned on a later date.‖ When asked if he would consent to that 

procedure, defendant replied yes. 

During Ducre‘s presence, three groups of prospective jurors were called 

into the courtroom and sworn. The first group appeared on the morning of 

January 19. The second group was brought in that afternoon, while the third group 

came in on the following morning. During all three sessions, the trial court 

introduced the parties, read the information, related that Attorney Ducre would be 

sitting in that day because defendant‘s attorney, Amador, was ill, and explained 

the proceeding was a penalty phase trial. It discussed the jury selection procedure 

and schedule, including the fact that questionnaires would be distributed, and the 

prospective jurors would be dismissed and ordered to return on February 1st with 

the completed questionnaires. After the questionnaires were distributed, the court 

explained the grounds for a hardship excusal. The court asked those prospective 

jurors claiming hardship to stay and dismissed the other prospective jurors. After 

questioning, the court dismissed those prospective jurors who had been excused by 

stipulation. 

After the above proceedings, the trial court ordered the prosecutor to meet 

with Amador to discuss the questionnaires and return to court on February 1. On 

that date, Amador was present in court when the first group of prospective jurors 

returned with their completed questionnaires. 

The Attorney General claims that defendant cannot challenge his attorney‘s 

absence because he consented to Amador‘s absence and the substitution of 

Attorney Ducre. Defendant responds that defendant agreed to have stand-in 
31

counsel only for the purpose of handing out the jury questionnaires and was not 

advised that the court would be excusing prospective jurors for hardship in 

Amador‘s absence. Defendant argues that, under these circumstances, he did not 

waive his right to have his attorney present during the excusal proceedings. 

Because we conclude that defendant was not deprived of his right to counsel, we 

need not decide the waiver issue.

On the merits, defendant contends that the absence of Amador during jury 

selection proceedings constituted a ―structural error‖ that requires automatic 

reversal of the judgment without reference to harmless error analysis. (Arizona v.

Fulminate (1991) 499 U.S. 279, 309.) Alternatively, he argues that Amador‘s 

absence was a presumptively prejudicial violation of his right to counsel at a 

critical stage of the proceedings. (Bell v. Cone (2002) 535 U.S. 685, 695-697; 

United States v. Cronic (1984) 466 U.S. 648, 659.)

―A criminal defendant enjoys the right to counsel under both the state and 

federal Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, Gideon v.

Wainwright (1963) 372 U.S. 335, 339-345, People v. Koontz (2002) 27 Cal.4th 

1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335.) A complete denial of counsel at a 

critical stage of the proceedings, including during jury voir dire (Gomez v. United 

States (1989) 490 U.S. 858, 873), gives rise to a presumption that the trial was 

unfair. (Cronic, supra, 466 U.S. at p. 659). But when the defendant is represented 

by counsel, the presumption of prejudice will only stand when counsel entirely 

failed to subject the prosecution's case to meaningful adversarial testing. (Bell v.

Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.)‖ (People v. Benavides (2005) 

35 Cal.4th 69, 86.)

We reject defendant‘s claims for several reasons. First, because defendant 

had an attorney representing him at all times during the jury selection proceedings, 

there was not a complete denial of counsel, let alone ―structural error.‖ (People v.
32

Benavides, supra, 35 Cal.4th at p. 86 [defense cocounsel‘s conducting of voir dire 

in absence of lead counsel not a violation of right to counsel]; Carroll v. Renico

(6th Cir. 2007) 475 F.3d 708, 712-713.)

Second, we question whether Amador‘s absence and Ducre‘s presence 

occurred during a critical stage of the proceedings. Hardship screening of the jury 

pool is not a critical stage of the proceedings. (People v. Ervin (2000) 22 Cal.4th 

48, 72 [defendant had no absolute right to be present during hardship screening]; 

People v. Basuta (2001) 94 Cal.App.4th 370, 395-396 [jury commissioner‘s 

screening of jury pool for financial hardship in absence of defense counsel or 

defendant not constitutionally significant].) Here, the court‘s hardship screening 

and distribution of juror questionnaires bore ―  ̳no reasonable, substantial relation 

to [defendant‘s] opportunity to defend the charges against him‘ ‖ (People v. Ervin,

supra, 22 Cal.4th at p. 74), nor was there even an opportunity for counsel to 

subject the prosecution's case to meaningful adversarial testing during the 

preliminary portion of the jury selection process. (Bell v. Cone, supra, 535 U.S. at 

p. 695; United States v. Cronic, supra, 466 U.S. at p. 659.) Thus, defendant was 

not presumptively prejudiced by Amador‘s absence.

Moreover, defendant has failed to show he was actually prejudiced. 

Defendant argues that Amador‘s presence was necessary because he ―had an 

awareness of trial strategy and an understanding of the unique aspects of the case.‖ 

Hardship excusals ―  ̳are to be granted only on a sufficient showing that the 

individual circumstances of the prospective juror make it unreasonably difficult 

for the person to serve or that hardship to the public will occur if the person must 

serve in the particular case.‘ ‖ (People v. Tate (2010) 49 Cal.4th 635, 663.) The 

propriety of a hardship excusal does not depend on the underlying facts of the

specific case, but rather on the juror‘s individual circumstances of hardship in 
33

serving on a jury in general. Thus, intimate knowledge of the case is not 

necessary for counsel‘s effective representation during hardship excusals. 

Defendant contends that stand-in counsel failed to object to the trial court‘s 

use of a more lenient standard for hardship excusals than designated in California 

Rules of Court, rule 2.1008. For example, he argues that financial hardship 

excusals were granted by the court or by stipulation without a showing that there 

was an ―extreme‖ burden (Cal. Rules of Court, rule 2.1008(d)(3)) and were 

granted to full-time students and those with planned vacations, criteria not 

designated in the rules of court. However, as the Attorney General argues, even if 

Attorney Amador had been present, the result would have been the same. As she 

points out, in the first trial, Amador stipulated to the excusal of jurors who 

requested a hardship dismissal on the same grounds defendant now claims were 

too permissive. Moreover, there is no showing that any of the hardship excusals 

were improper or an abuse of discretion. ―[R]ule 2.1008‘s strictures on the jury 

commissioner‘s authority to issue hardship excusals do not necessarily apply to 

hardship excusals granted by the trial court during voir dire.‖ (People v. Tate,

supra, 49 Cal.4th at p. 665, fn. 18.) Defendant has failed to show that any of those 

excusals resulted in the seating of biased jurors or that the panel from which 

persons were excused for hardship reasons was less than representative. (See 

People v. Tate, supra, 49 Cal.4th at p. 663, fn. 16.) 

Finally, defendant argues that Attorney Ducre failed to object when the trial 

court stated that because a previous jury had determined defendant‘s guilt and the 

truth of the special circumstances, it ―will not be something that you will have to 

concern yourself with.‖ He claims that he was prejudiced because the statement 

undermined the concept of lingering doubt. As discussed below, the trial court‘s 

statement was not incorrect. (See post, pp. 77-79.) Moreover, as the Attorney 

General points out, it was likely that Amador himself would not have objected. 
34

Amador did not object when the trial court gave the same information to 

prospective jurors before the start of the first penalty phase retrial. 

Accordingly, the presence of a substitute attorney during the preliminary 

stage of jury selection was not a denial of defendant‘s right to counsel.

C. Guilt Phase Issues

1. Admission of Photographs, Expert Testimony About the Nature and 

Degree of the Victim‘s Burns, and Tape Recording of Victim in the 

Ambulance

Defendant contends that the trial court committed prejudicial error by 

admitting photographs of the victim‘s injuries, expert testimony about the nature 

and extent of the burns she suffered, and a tape recording of Yolanda‘s screams in 

the ambulance while she was transported to the hospital. He argues that admission 

of this evidence, individually and collectively, violated California law and his

federal constitutional rights to a fair trial and a reliable, nonarbitrary adjudication 

of all stages of a death penalty case. As explained below, the trial court properly 

admitted the evidence. 

a. Photographs

The prosecutor sought admission of five photographs of various parts of the 

victim‘s body to show the burn injuries that she had sustained. He represented 

that Dr. David Vannix, the prosecution‘s burn expert, chose the five photographs 

as necessary to support his expert opinion. Defendant objected that the 

photographs were irrelevant and tended to inflame the jury (People‘s Exhibits Nos.

8-12). The prosecutor argued that the photographs were relevant to establish 

malice and on the issues relating to torture murder as well as the torture special 

circumstance. The trial court admitted three of the five photographs (People's 

Exhibits Nos. 8-10) to show the severity of the burns and the victim‘s pain and 

suffering. It explained that the three admitted photographs showed different 
35

portions of the victim‘s body and thus, different areas of injury on the body. 

Exhibit No. 8 showed the lower portion of the victim‘s front torso. Exhibit No. 9

showed the victim‘s back torso. Exhibit No. 10 showed the victim‘s front, her 

upper torso and face. The court excluded exhibits Nos. 11 and 12 as cumulative 

because they duplicated the areas of the body shown in exhibits Nos. 8-10. 

b. Expert Testimony

Defendant moved to exclude admission of the expert testimony of Dr. 

Vannix and other evidence relating to the victim‘s pain and suffering. Defense 

counsel argued that the evidence was irrelevant to any disputed issue since he 

admitted during opening statement that defendant had caused Yolanda‘s death and 

that she suffered a horrible, painful death. Regarding Dr. Vannix‘s testimony, 

defense counsel claimed the evidence was cumulative and not a proper subject for 

expert testimony. The prosecutor argued that the evidence was probative on the 

issues of malice and torture, and that the nature of the burns sustained by Yolanda 

was beyond the experience and understanding of the jury. The trial court denied 

defendant‘s motion, stating that the expert would assist the jury in determining the 

type of pain and suffering one would endure with this type of burning. 

Deputy Medical Examiner Steven Trenkle testified that Yolanda‘s burns 

were consistent with burns from a gasoline fire. She suffered extensive second 

and third degree burns on her head behind her hairline, and on her entire face, the 

front of her chest, both arms, her back, and the top of both thighs. The pain 

inflicted from these types of burns could be severe and ―potentially extreme.‖

Dr. Vannix, the medical director of the hospital and the victim‘s attending 

surgeon at the hospital‘s burn center, testified that Yolanda was admitted to the 

hospital in critical condition with life-threatening burn injuries. He explained how 

first, second, and third degree burns differed in appearance and in the severity of 
36

pain. First degree burns involve redness of the skin and some pain, but do not 

blister or peel. With second degree burns from heat or flame, there are blisters and 

the skin usually appears red and is sometimes black from the ash or combustion. 

Second degree burns involve injury to the deeper layer of dermis beyond the 

epidermis. Third degree burns involve injury to the fatty tissue underlying the 

skin. The skin is usually white and may or may not be blistered. Unlike first and 

second degree burns, third degree burns ―denature the skin‘s protein structure‖; the 

skin is not elastic, but is thick, and feels heavy and leathery. 

Dr. Vannix testified that because second degree burns cause injury to more 

nerve endings in the dermis than the epidermis, they are significantly more painful 

than first degree burns. With third degree burns, the burns may not be painful 

initially, if none of the nerve endings survive. In that case, the painlessness may 

be temporary until the nerve endings begin to regenerate. Within 24 hours, 

someone with third degree burns feels the same or even worse pain than that 

associated with a second degree burn. Such pain is extreme and ―is among the 

most significant types of pain in human experience.‖ 

Dr. Vannix further testified that the paramedics were unsuccessful in 

administering pain medication to Yolanda. Because the burns were so deep and 

the skin was so thickened, they were unable to find or gain access to a vein. 

Jeffrey Boyles, a fireman who assisted in Yolanda‘s medical care during her 

transportation to the hospital, testified that Yolanda was in tears and screaming 

and went through the entire 20-minute ambulance trip without pain medication. 

They tried to relieve the pain by pouring water over her burns. 

c. Ambulance Tape

Defendant objected to the playing of a tape recording in which Yolanda 

was heard screaming during the ambulance ride to the hospital. He argued that, 
37

under Evidence Code section 352, the evidence was cumulative and unfairly 

prejudicial. Again, the prosecutor argued that the tape recording showed the 

degree of pain suffered by Yolanda, which was relevant to the issues relating to 

torture murder and to the torture special-circumstance allegation. The trial court 

overruled the objection, finding that the evidence was relevant. It found that 

although the tape recording was ―to some extent‖ cumulative, it was a ―different 

type of evidence,‖ i.e., ―a presentation of what was going on at the time, rather 

than somebody‘s verbal recitation of what they recall.‖ The court further 

explained that it was relevant and material for the jury ―to actually hear from the 

victim‘s own mouth expressions of the kind of pain that she was sensing as it goes 

to the issues in the lawsuit.‖ 

d. Analysis

On appeal, defendant contends that admission of evidence of Yolanda‘s 

pain and suffering was irrelevant, cumulative, more prejudicial than probative, and 

violated his federal constitutional rights. Initially, we note that defendant did not 

object at trial to the expert testimony and the introduction of the ambulance tape 

on federal constitutional grounds. (People v. Heard (2003) 31 Cal.4th 946, 972, 

fn. 12 [failure to raise federal constitutional objection in trial court forfeits 

appellate claim].) To the extent his federal due process claim is merely a gloss on 

his objections in the trial court, it is preserved. (People v. Partida (2005) 37 

Cal.4th 428, 437-438.) However, his claims are without merit.

We review for abuse of discretion a trial court‘s rulings on relevance and 

admission or exclusion of evidence under Evidence Code section 352, including 

photographic and tape-recording evidence. (People v. Hawthorne, supra, 46 

Cal.4th at p. 103; People v. Cole (2004) 33 Cal.4th 1158, 1196, 1198.) 
38

To prove torture murder, the prosecution must establish ―  ̳a willful, 

deliberate, and premeditated intent to cause extreme pain or suffering for the 

purpose of revenge, extortion, persuasion, or another sadistic purpose.‘ ‖ (People 

v. D‘Arcy (2010) 48 Cal.4th 257, 293.) To prove a torture-murder special 

circumstance, the prosecution must show that defendant intended to kill and had a 

torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of 

revenge, extortion, persuasion, or another sadistic purpose. (People v. Elliot 

(2005) 37 Cal.4th 453, 479.) The jury may infer the intent to inflict extreme pain 

from the circumstances of the crime, the nature of the killing, and the condition of 

the victim's body. (People v. Chatman (2006) 38 Cal.4th 344, 390.)

People v. Cole, supra, 33 Cal.4th 1158, is on point. There, the defendant 

poured gasoline on the victim and set her on fire. Like Yolanda, the victim in 

Cole sustained burns over 50 percent of her body, died 10 days later from severe 

respiratory problems, and had been in a violent, abusive relationship with her 

killer. In Cole, we held that evidence of the victim‘s suffering — in the form of 

expert testimony and photographs — was relevant to prove intent to inflict 

extreme pain, required for both murder by torture and the torture-murder special 

circumstance, and to prove the commission of an act calculated to cause extreme 

pain, required for the torture-murder special circumstance. (People v. Cole, supra,

33 Cal.4th at pp. 1196-1199.) 

Defendant argues that Cole is distinguishable because it is a pre-Proposition 

115 case, while this is a post-Proposition 115 case. He is correct that Proposition 

115, effective June 6, 1990, eliminated ―  ̳proof of the infliction of extreme 

physical pain no matter how long its duration‘ ‖ as an element of the torturemurder special circumstance. (People v. Cole, supra, 33 Cal.4th at p. 1197, fn. 7.) 

Nevertheless, the evidence here, as in Cole, was relevant to prove intent to inflict 

extreme pain. (See also People v. D‘Arcy, supra, 48 Cal.4th at pp. 298-299 
39

[photographs of burn victim relevant to prove intent to torture for torture murder]; 

People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212 [same]; People v. Brasure 

(2008) 42 Cal.4th 1037, 1054 [photographs of burn victim relevant to proof of 

how, when, and where victim was tortured and murdered]; People v. Washington 

(1969) 71 Cal.2d 1061, 1083.) Moreover, the evidence showed the manner in 

which Yolanda was killed, which was relevant to the issue of intent to kill. 

(People v. Ramirez (2006) 39 Cal.4th 398, 454.) 

As in Cole, we also find that the trial court did not abuse its broad 

discretion in admitting the evidence under Evidence Code section 352. (People v.

Cole, supra, 33 Cal.4th at pp. 1197, 1199; see also People v. Whisenhunt, supra, 

44 Cal.4th at p. 212.) Regarding the photographs, the court carefully reviewed 

each photograph and admitted only those photographs that it determined not to be 

cumulative. As for the expert testimony, the court impliedly found the evidence 

was not cumulative and expressly found it was a proper subject for expert 

testimony. The photographs were properly admitted to clarify the medical 

testimony of Dr. Vannix. (People v. Ramirez, supra, 39 Cal.4th at p. 453; People 

v. Brasure, supra, 42 Cal.4th at p. 1054; see People v. D‘Arcy, supra, 48 Cal.4th at 

p. 299 [prosecution not obliged to prove how crime occurred solely from 

testimony of live witnesses].) On the ambulance tape, the court expressly 

determined that the evidence was not cumulative because it was the victim‘s 

expression of pain and suffering at the time of the actual events. 

Although defendant offered to stipulate to the cause and manner of death, 

he did not concede that he intended to inflict extreme physical pain on Yolanda. 

In any event, the prosecution may not be compelled to accept a stipulation where 

the effect would be to deprive the state‘s case of its persuasiveness and 

forcefulness. (People v. Arias (1996) 13 Cal.4th 92, 131.) 
40

Here, the evidence ―did no more than accurately portray the shocking 

nature of the crimes. The jury can, and must, be shielded from depictions that 

sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot 

be shielded from an accurate depiction of the charged crimes that does not 

unnecessarily play upon the emotions of the jurors.‖ (People v. Ramirez, supra,

39 Cal.4th at p. 454; see also People v. Brasure, supra, 42 Cal.4th at p. 1054 

[―challenged photographs simply showed what had been done to the victim 

[doused with gasoline and burned]; the revulsion they induced is attributable to the 

acts done, not to the photographs‖].) The record reflects that the trial court was 

aware of its duty to weigh the evidence‘s prejudicial effect against its probative 

value, and carefully did so. Because the evidence was properly admitted, we 

necessarily reject defendant‘s constitutional claims. (People v. Cole, supra, 33 

Cal.4th at p. 1197, fn. 8.)

2. Admission of Yolanda‘s Declaration in Support of Temporary 

Restraining Order

Defendant contends that the admission of Yolanda‘s declaration in support 

of the temporary restraining order against him violated the confrontation clause of 

the Sixth Amendment to the United States Constitution. 

At trial, the prosecution moved to admit Yolanda‘s declaration under 

Evidence Code section 1370. The declaration stated: 

―On December 30th, 1996, Howard went crazy. He took my braids and 

wrapped them around his hand. He had a very very tight grip on them. He kept 

pulling and pulling on my braids so hard he pulled my hair out of my head. When 

I would scream he told me to shut up and put his hand on my neck.

―All of this because I wouldn‘t have sex with him. When my daughter 

came to see what was happening he told her to leave, he said if she didn‘t leave 

she could stand there and watch.
41

―He would start drinking and get realy mean. He push me out the house 

and lock the door. He would throw things at me. One time he held me down 

because I wouldn‘t give him my bank card. He would push me around. He would 

call me bitches and hores. One time we went to Knotts Berry Farm he told me if I 

didn‘t leave with him, he would beat my ass and every one around us heard. Some 

times he would make me give him my money and he would make me have sex 

with him.‖ (Errors in original.)

Defendant objected to the declaration‘s admission on the ground it would 

violate the Evidence Code and the confrontation clause. The trial court granted 

the prosecution‘s motion and admitted the declaration at both the guilt and penalty 

phases of trial. 

At the time of trial, the admission of extrajudicial hearsay statements of 

unavailable witnesses did not violate the confrontation clause if those statements 

fell within a firmly rooted hearsay exception or contained particularized 

guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66.) In 

Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court 

overruled Roberts. It held that ―Where testimonial statements are at issue, . . . the

Sixth Amendment demands what the common law required; unavailability and a 

prior opportunity for cross-examination.‖ (Crawford v. Washington, supra, 541 

U.S. at p. 68.)

The Attorney General concedes that the declaration‘s statements — made 

under penalty of perjury and for the purpose of obtaining a judicial order against 

defendant —are testimonial, and there is no indication defendant had an 

opportunity to cross-examine Yolanda about these statements. Nevertheless, the 

Attorney General argues that the statements were admissible under the rule of 

forfeiture by wrongdoing. (Giles v. California (2008) 554 U.S. 353, 359-361 

[forfeiture by wrongdoing not an exception to Sixth Amendment‘s right to 
42

confrontation unless defendant engaged in conduct designed to prevent absent 

witness from testifying].) Defendant responds that the rule is inapplicable here 

because defendant did not engage in conduct designed to prevent the witness from 

testifying. We need not decide this question because any error in admitting the 

declaration was harmless beyond a reasonable doubt. (Harrington v. California

(1969) 395 U.S. 250, 288.)

First, the declaration‘s statements merely corroborated testimony presented 

in the form of live witnesses. The prosecution presented extensive evidence of 

defendant‘s violent, abusive relationship with Yolanda at both phases of trial. 

During the guilt and penalty phases, Yolanda‘s daughter, Lawanda, testified

about the December 30, 1996 event, but in greater detail. She described that on 

that day, she was awoken by her mother‘s screams and saw defendant pulling on 

Yolanda‘s hair and dragging Shavonda by her leg brace in the presence of Little 

Howie. Defendant warned Lawanda that if she continued watching, he would pull 

Yolanda‘s hair harder. Defendant got on top of Yolanda. Because defendant‘s 

and Yolanda‘s pants were down, it appeared he was trying to do something 

―sexually.‖ Defendant ―tortured‖ Yolanda for hours. The next day, Yolanda‘s 

head was sore. Lawanda identified a photograph of her mother depicting the head 

injuries she suffered that night. Lawanda stated that before this incident, 

defendant continually threw things around the house, argued with and threatened 

Yolanda, and pushed her around. 

Other witnesses provided further details about their relationship. During 

the guilt and penalty phases, Yolanda‘s sister, Lucinda Buttler, testified that she 

saw defendant push Yolanda out of the door when Yolanda did not want to leave 

the house after her father‘s funeral and that Yolanda told her defendant was 

abusive during the last year or two of their relationship. During the guilt phase, 

Yolanda‘s brother, Quentin Buttler, testified that he saw and photographed 
43

Yolanda‘s head injuries in December 1996, which Yolanda attributed to 

defendant. Yolanda told Quentin that she was scared and wanted to leave 

defendant because he had been beating her. Quentin advised Yolanda to seek the 

restraining order. There was also evidence that defendant was controlling. He 

would not allow Yolanda to visit her siblings. 

Second, the declaration described events separate from the charged 

incident. At the guilt phase, the trial court instructed the jury to consider the 

contents of the declaration for the limited purpose of showing malice and intent at 

the time he committed the charged crime. It further admonished the jury it was 

not to consider that evidence as showing defendant was a bad person or of bad 

character or was prone to commit acts of violence. Indeed, during the guilt phase

closing argument, the prosecutor advised the jury that ―we‘ve put on a lot of 

evidence that may make the defendant sound like a bad guy. But you should not 

think of him as a bad guy . . . or convict him because you may not like him, may 

not think he‘s a good guy.‖ 

Finally, the evidence of the murder was overwhelming. After discovering 

that Yolanda had taken the children and left, defendant hunted her down; he went

from one member of her family to the next, and angrily threatened to kill them. 

During the penalty phase, defendant stated that he wanted to ruin Yolanda‘s life 

because she had ruined his life and that she would regret leaving him. He carried 

out his threat in a horrific manner, first by pouring gasoline on Yolanda‘s car,

where her disabled young niece was trapped in the backseat and then by pouring 

gasoline over Yolanda‘s body and setting her on fire in front of her children and 

others. Moreover, the note in the glove compartment of defendant‘s car reflects 

that defendant intended to kill Yolanda.

Any error in admitting Yolanda‘s declaration was harmless beyond a 

reasonable doubt. 
44

3. Sufficiency of the Evidence

Defendant contends the evidence, in several respects, was insufficient to 

support the judgment. In reviewing a criminal conviction challenged as lacking 

evidentiary support, ―  ̳the court must review the whole record in the light most 

favorable to the judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and of solid value—

such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.‘ [Citation.]‖ (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)

The same standard of review applies to special-circumstance allegations. (People 

v. Maury (2003) 30 Cal.4th 342, 396.) ―An appellate court must accept logical 

inferences that the jury might have drawn from the evidence even if the court 

would have concluded otherwise.‖ (People v. Combs (2004) 34 Cal.4th 821, 849.)

a. First Degree Murder Conviction; Torture and Lying-in-wait 

Special-circumstance Findings 

The prosecution tried the case and the trial court instructed on three theories 

of first degree murder: (1) deliberate and premeditated murder; (2) torture murder; 

and (3) murder by lying in wait. Defendant contends that the evidence was 

insufficient to support the first degree murder conviction on any of these theories. 

He makes the same contention as to the special-circumstance findings. For the 

same reason, he also claims that the trial court improperly instructed the jury on 

each of the three theories of first degree murder. As explained below, we 

conclude that there was substantial evidence to support all three theories and the 

special-circumstance findings. Because we conclude substantial evidence 

supports a conviction of first degree murder based on theories of premeditation 

and deliberation, torture murder, and lying-in-wait, we necessarily reject 

defendant‘s additional claim that instructions on these theories were not justified 

by the evidence.
45

1) Deliberate, Premeditated Murder

Defendant contends that the prosecution presented insufficient evidence of 

premeditation and deliberation because none of the categories of evidence set forth 

in People v. Anderson (1968) 70 Cal.2d 15 were met in this case. In Anderson, we 

―identified three categories of evidence relevant to resolving the issue of 

premeditation and deliberation: planning activity, motive, and manner of killing.‖ 

(People v. Bolin (1998) 18 Cal.4th 297, 331.) ―However, these factors are not 

exclusive, nor are they invariably determinative.‖ (People v. Combs, supra, 34

Cal.4th at p. 850.) ―  ̳Anderson was simply intended to guide an appellate court's 

assessment whether the evidence supports an inference that the killing occurred as 

the result of preexisting reflection rather than unconsidered or rash impulse. 

[Citation.]‘ ‖ (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.)

As to planning and motive, defendant argues that although he was 

distraught about his failed relationship with Yolanda, the evidence showed only 

that he planned to meet with Yolanda, visit with his son, Little Howie, and try to

win her back. He contends it does not show that he intended to kill her. As to the

manner of killing, defendant argues that the evidence showed the killing was a 

rash, impulsive explosion of violence brought on by his having to wait for 

Yolanda, who was late. In so arguing, defendant primarily relies on his own 

testimony, and asks us to reject any incriminating inferences that the jury could 

have reasonably deduced from the prosecution‘s evidence. 

The evidence in all three categories was overwhelming. The prosecution‘s 

evidence showed that defendant was controlling toward Yolanda, that he 

repeatedly physically abused Yolanda, and that Yolanda was afraid of him to the 

extent that she sought a restraining order against him and secretly left him and hid 

in a hotel instead of staying at her sister‘s house. When he was trying to find 

Yolanda and Little Howie, defendant went to the houses of Yolanda‘s siblings and 
46

broke the window of a van, and threatened to kill members of Yolanda‘s family if 

they did not reveal her whereabouts. Victor Buttler testified that when defendant 

came to his house, he had a gun. Thus, defendant was furious with Yolanda for 

taking Little Howie and leaving, and was prepared to use violence to find her. 

Indeed, the evidence showed that defendant planned to use violence against 

Yolanda. The police found a note written by defendant to his parents in the glove 

compartment of his car. In the note, defendant apologized for his death and asked 

his parents to raise his son, Little Howie, to tell him that he was ―sorry‖ for what 

he did to Yolanda, and to warn him to ―never fall in love‖ with a woman. He 

admitted that he knew what he did to Yolanda was wrong, but that she did not 

deserve ―to live like me.‖ 

As he testified at trial, defendant argues that the note was simply a suicide 

note and that the reference to Yolanda did not mean that she did not deserve to 

live, but that she did not deserve to live the same lifestyle as defendant. However, 

the jury was entitled to reject defendant‘s explanation. Instead, it could have 

reasonably understood the note as expressing his belief that Yolanda did not 

deserve to live. In other words, it could have understood it as a murder-suicide 

note. Given the note‘s many grammatical and spelling errors, the jury could have 

reasonably believed that defendant omitted a comma and meant to state that 

Yolanda did not deserve ―to live, like me.‖

As he testified at trial, defendant also argues that the statement, ―I know 

what I did to Yolanda is wrong‖ referred to the earlier December 30, 1996

incident, not to an intent to hurt Yolanda in the future. Although defendant 

actually wrote the note several days earlier, the note was dated April 27, 1997, the 

day defendant burned Yolanda. Thus, the jury could have reasonably concluded

that defendant intended the note to be discovered after he burned Yolanda, and 
47

after he and Yolanda were dead, and that was why defendant asked his parents to 

care for Little Howie.

Moreover, the jury could have reasonably concluded that defendant planned 

the precise manner of killing. Defendant stated that he arrived on time at 4:00 

p.m. to meet Yolanda and the children and became angry and frustrated because

they were late. However, the jury could have reasonably rejected his testimony 

that they were late, since the 911 call reporting Yolanda on fire was received at 

3:21 p.m. Yolanda‘s son, Patrick, stated that defendant appeared nervous as they 

drove up to the Chuck E. Cheese restaurant. The police found that the gas cap 

from defendant‘s car was on the car‘s bumper and that the car‘s steering wheel 

was locked by a Club device. Thus, the jury could have reasonably concluded that 

defendant came early, before Yolanda‘s arrival, and siphoned gasoline out of his 

gas tank to fill the plastic container he intended to use to pour gasoline on 

Yolanda. Further, it could have reasonably rejected defendant‘s testimony that he

only intended to take his son on a drive. Instead, it could have reasonably 

concluded that defendant placed Little Howie in his car for his safety, so that he 

could then beat and incapacitate Yolanda to enable him to pour gasoline on her 

and her car, and set her on fire. 

Finally, the manner of killing itself demonstrates premeditation and 

deliberation. The evidence revealed that defendant was still angry at Yolanda for 

leaving him and taking his son. Edward Jasso testified that, while beating 

Yolanda, defendant looked angry and called her a ―fucking bitch.‖ Moreover, the 

evidence showed that defendant‘s acts occurred in stages. Defendant beat and 

kicked Yolanda repeatedly, then stopped to retrieve the plastic container from his 

car. He returned to Yolanda and poured gasoline on her. He dragged Yolanda to 

his car, but then released her to retrieve a cigarette lighter from his car. He then 

chased her and set her on fire. Thus, the jury could have reasonably concluded 
48

that defendant had many opportunities to consider and reflect on his actions, but 

chose to continue with his plan to set Yolanda on fire and kill her. (See People v.

Mayfield (1997) 14 Cal.4th 668, 767 [premeditation and deliberation does not 

require extended period of time; ―  ̳[t]houghts may follow each other with great 

rapidity and cold, calculated judgment may be arrived at quickly‘ ‖].) As the 

prosecutor argued, no one intentionally throws gasoline on a person and sets them 

on fire if he or she does not intend to kill that person. 

The evidence shows that defendant had a motive and committed the killing 

in the manner he had planned. We find ample evidence of premeditation and 

deliberation. 

2) Torture Murder; Torture Special-circumstance Finding

Defendant contends that the prosecution presented insufficient evidence to 

support the first degree murder conviction based on a torture-murder theory and 

the torture special-circumstance finding. 

First degree murder includes a murder perpetuated by means of torture. 

(§ 189.) ―  ̳The elements of torture murder are: (1) acts causing death that involve 

a high degree of probability of the victim's death; and (2) a willful, deliberate, and 

premeditated intent to cause extreme pain or suffering for the purpose of revenge, 

extortion, persuasion, or another sadistic purpose.‘ [Citation.]‖ (People v.

D‘Arcy, supra, 48 Cal.4th at p. 293.) Murder by torture does not require that a

defendant have an intent to kill or that the victim be aware of the pain. (People v.

Cook (2004) 39 Cal.4th 566, 602.) The jury may infer the intent to inflict extreme 

pain from the circumstances of the crime, the nature of the killing, and the 

condition of the victim's body. (People v. Chatman, supra, 38 Cal.4th at p. 390.) 

We also have ―  ̳cautioned against giving undue weight to the severity of the 

victim's wounds, as horrible wounds may be as consistent with a killing in the heat 
49

of passion, in an ―explosion of violence,‖ as with the intent to inflict cruel 

suffering.‘ ‖ (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.)

Defendant argues that the only reasonable interpretation of the evidence is 

that the acts of pouring gasoline on Yolanda and setting her on fire was simply an 

unplanned, impulsive explosion of violence resulting from a fight that spun out of 

control. Again, defendant relies primarily on his own testimony at trial, while 

ignoring the prosecution‘s evidence and the reasonable inferences to be drawn 

therefrom. Given defendant‘s prior physical abuse of Yolanda, his attempts to 

control her by preventing communication with her family, his anger with Yolanda 

for leaving him and taking his child, and concealing her whereabouts, and the 

repeated threats against Yolanda‘s family, the jury could have reasonably 

concluded that when defendant intentionally set Yolanda on fire as he had 

planned, he intended to cause Yolanda extreme pain and suffering as punishment 

or for revenge. (See e.g., People v. Cole, supra, 33 Cal.4th at p. 1214 [torturemurder conviction supported by evidence of prior tumultuous domestic 

relationship, victim‘s plan to leave defendant, threats against victim, and manner 

of killing victim by burning her with flammable liquid].) As the prosecutor 

argued, someone who sets a person on fire with gasoline clearly intends to inflict 

extreme and prolonged pain on that person. Moreover, after defendant set 

Yolanda on fire, he fled from the scene and failed to aid in rescue attempts. (See 

People v. Martinez (1952) 38 Cal.2d 556, 561 [defendant burned wife with 

gasoline and failed to aid in and hindered rescue attempts].) Such evidence, 

together with the resulting condition of Yolanda‘s body and her painful, prolonged

death 10 days later ―permitted an inference that defendant set [the victim] on fire 

with the intent to inflict extreme pain for the purpose of revenge.‖ (People v.

D‘Arcy, supra, 48 Cal.4th at p. 294; see also People v. Whisenhunt, supra, 44 

Cal.4th at p. 201 [victim‘s wounds inflicted by defendant‘s attack and 
50

incapacitation of victim, and methodical burn wounds inflicted with hot cooking 

oil on victim‘s body supported jury‘s finding defendant had willful, deliberate, and 

premeditated intent to cause extreme pain or suffering for sadistic purpose].) The 

nature of Yolanda‘s wounds and the circumstances surrounding the killing provide 

sufficient support for a first degree murder conviction premised on a torturemurder theory. The jury could reasonably reject defendant‘s testimony to the 

contrary. 

We further conclude sufficient evidence supported the jury‘s true finding 

on the torture-murder special-circumstance allegation. The special circumstance

requires that a murder be ―intentional‖ and ―involv[e] the infliction of torture,‖ 

which includes a torturous intent. (§ 190.2, subd. (a)(18); People v. Whisenhunt,

supra, 44 Cal.4th at p. 202; People v. Elliot, supra, 37 Cal.4th at pp. 469, 479.) 

As reflected above, the evidence supports the jury‘s conclusion that defendant 

intended to kill Yolanda, and that the murder involved the infliction of torture. 

3) Murder by Lying In Wait; Lying-in-wait Specialcircumstance Finding

Defendant contends that the evidence was insufficient to support the lyingin-wait special-circumstance finding because the murder was not committed 

―while‖ lying in wait and his true concealed purpose was to take Yolanda‘s son 

and not to murder her. He is wrong.

At the time of defendant‘s crime, the special circumstance required that the 

murder be committed ―while lying in wait.‖7 (§ 190.2, former subd. (a)(15); 

People v. Lewis, supra, 43 Cal.4th at pp. 511-512.) Also, at that time, ―the 

 

7 In March 2000, the language of the lying-in-wait special circumstance was 

changed to delete the word ―while‖ and substitute the phrase ―by means of.‖ 

(Stats. 1998, ch. 629, § 2, p. 4165; see People v. Lewis (2008) 43 Cal.4th 415, 512, 

fn. 25.) 
51

requirements of the lying-in-wait special circumstance were slightly different 

from, and more stringent than, the requirements for lying-in-wait first degree 

murder. [Citation.] Whereas lying-in-wait first degree murder required only that 

the murder be perpetrated  ̳by means of‘ lying in wait (§ 189), the lying-in-wait 

special circumstance applied to murder committed  ̳while lying in wait‘ (§ 190.2, 

former subd. (a)(15), italics added).‖ (People v. Lewis, supra, 43 Cal.4th at pp. 

511-512.) Further, the lying-in-wait special circumstance requires intent to kill, 

while lying-in-wait murder requires only a wanton and reckless intent to inflict 

injury likely to cause death. (People v. Moon (2005) 37 Cal.4th 1, 24, fn. 1.) As 

shown below, because the evidence supports the special circumstance, it 

necessarily supports the theory of lying-in-wait first degree murder.

―  ̳ ―The lying-in-wait special circumstance requires  ̳an intentional murder, 

committed under circumstances which include (1) a concealment of purpose, (2) a 

substantial period of watching and waiting for an opportune time to act, and (3) 

immediately thereafter, a surprise attack on an unsuspecting victim from a position 

of advantage . . . .‘ [Citations.]  ̳The element of concealment is satisfied by a 

showing ―  ̳that a defendant's true intent and purpose were concealed by his 

actions or conduct. It is not required that he be literally concealed from view 

before he attacks the victim.‘ ‖ ‘ [Citation.]‖ [Citation.]‘ [Citation.]‖ (People v.

Combs, supra, 34 Cal.4th at p. 853.)

First, the evidence established that defendant concealed his intent to kill 

Yolanda. From the note to his parents, the jury could have reasonably concluded 

that defendant intended to kill Yolanda. He concealed his purpose by luring 

Yolanda to the restaurant under the pretext of an attempted reconciliation and a 

familial visit. Patrick testified that defendant had been calling Yolanda, claiming 

he wanted to reconcile with her. Defendant testified that he had convinced 

Yolanda to bring the children to meet him once before, and that the meeting had 
52

occurred without incident. Defendant further testified that he told Yolanda he 

wanted to get back together with her, and when she refused he told her he might 

do something to himself. She then agreed to meet him at the Chuck E. Cheese 

restaurant. (See People v. Sims (1993) 5 Cal.4th 405, 433 [defendant lured victim 

to motel room on pretext of ordering pizza, concealing true intent to rob and 

murder him].) Moreover, from the removed gas cap from defendant‘s car, the jury 

could have reasonably concluded that defendant prepared the instruments of her 

killing before Yolanda‘s arrival at the restaurant. 

Defendant claims that there is no evidence his concealed purpose was a 

murderous one. Instead, he argues the evidence shows that his pretextual request 

to see Yolanda concealed his true purpose of taking his son from her. Again, 

defendant focuses solely on his own testimony. In contrast, the prosecution‘s

evidence revealed that before Yolanda arrived, defendant locked his steering 

wheel, which was not conducive to a quick getaway with his son. Moreover, 

defendant had the opportunity to leave after he secured Little Howie in his car, but 

did not. Indeed, as the Attorney General points out, the defense did not even argue 

to the jury that defendant‘s true concealed purpose was to take his son from 

Yolanda. The evidence supports the jury‘s finding that defendant concealed his 

intent to kill Yolanda. 

Second, the evidence showed that defendant engaged in a substantial period 

of watching and waiting for an opportune time to act. ―Watchful‖ does not require 

actual watching; it can include being ―alert and vigilant‖ in anticipation of the 

victim‘s arrival to take him or her by surprise. (People v. Sims, supra, 5 Cal.4th at 

p. 433.) The jury could have reasonably concluded that defendant was at the 

restaurant long enough to secure his car with the Club locking device and remove 

gasoline from his gas tank to fill up the plastic container in his trunk. Defendant 

testified that he waited for Yolanda for 30 to 40 minutes. Although defendant 
53

testified that he and Yolanda planned to meet at 4:00 p.m., the 911 call reporting 

Yolanda on fire was received at 3:21 p.m. The jury could have reasonably 

concluded that if Yolanda was early for the meeting, defendant arrived even 

earlier and waited to take her by surprise. According to Patrick, defendant was 

clapping his hands and appeared nervous when they arrived at the restaurant. 

Thus, the evidence reflects that defendant was waiting nervously for Yolanda‘s

arrival to set his deadly plan in motion.

Finally, the evidence reflects that immediately after the period of watching 

and waiting, defendant launched a surprise attack on the unsuspecting victim from 

a position of advantage. Immediately after Yolanda‘s arrival, defendant grabbed 

Little Howie and placed him in his car. From this evidence, the jury could have 

reasonably inferred that defendant placed his son there for safety purposes, to 

protect him from the fire defendant intended to start. When Yolanda attempted to 

retrieve her son, she and defendant began to argue and push each other. Defendant 

beat and kicked Yolanda and returned to his car to retrieve the gasoline, which he 

then poured on Yolanda‘s car and on Yolanda. He then beat her again and 

grabbed her by the hair and attempted to drag her back to his car to get something 

with which to ignite the gasoline. Finally, defendant let Yolanda go and went to 

his car for the lighter. Yolanda tried to get away, but defendant caught her and set 

her on fire. 

Defendant argues that there was insufficient evidence the killing took place 

―while lying in wait‖ (§ 190.2, former subd. (a)(15)), i.e., ―  ̳during the period of 

concealment and watchful waiting.‘ ‖ (People v. Lewis, supra, 43 Cal.4th at p. 

512.) ―Although we have not defined the parameters of a murder committed 

 ̳during the period of concealment and watchful waiting,‘ the language of 

[CALJIC No. 8.81.15 (1989 rev.)] supplies meaning to that phrase. That 

instruction stated:  ̳Thus, for a killing to be perpetrated while lying in wait, both 
54

the concealment and watchful waiting as well as the killing must occur during the 

same time period, or in an uninterrupted attack commencing no later than the 

moment concealment ends. [¶] If there is a clear interruption separating the 

period of lying in wait from the period during which the killing takes place, so that 

there is neither an immediate killing nor a continuous flow of the uninterrupted 

lethal events, the special circumstance is not proved.‘ ‖ (People v. Lewis, supra, 

43 Cal.4th at p. 512.) Here, the trial court instructed the jury in the language of 

CALJIC No. 8.81.15. 

Yolanda met with defendant under the belief he wanted a reconciliation and 

to visit with Little Howie. Instead, defendant launched a surprise attack with the 

intent to set her on fire. It began with the preparatory step of taking Little Howie 

away from his mother, and was followed immediately with the beating of Yolanda 

when she attempted to retrieve her son and the lethal acts of dousing Yolanda with

gasoline and igniting it. Although there were discrete events during which 

defendant beat Yolanda, went to his car to retrieve gasoline and the lighter, and 

poured gasoline on Yolanda and lit it, the time between each event took only 

minutes or seconds. Thus, contrary to defendant‘s claim, ―no  ̳cognizable 

interruption‘ occurred between the period of watchful waiting and the 

commencement of the murderous and continuous assault which ultimately caused 

her death.‖ (People v. Morales (1989) 48 Cal.3d 527, 558; People v. Carpenter

(1997) 15 Cal.4th 312, 389 [end of lying in wait, attempted rape, and killing 

occurred within minutes]); compare with People v. Lewis, supra, 43 Cal.4th at pp. 

511, 514-515 [cognizable interruption occurred between period of watchful 

waiting and killings, when defendant and accomplices kidnapped victims and 

proceeded to drive them to ATM machines from which he withdrew their funds

before killing them]; Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 

1011-1012 [cognizable interruption when defendant killed victim hours after 
55

kidnapping that was preceded by period of lying in wait].) Moreover, the jury 

could reasonably find no lapse in defendant‘s culpable mental state between the 

homicide and the period of watchful waiting. (People v. Lewis, supra, 43 Cal.4th 

at p. 514, quoting People v. Carpenter, supra, 15 Cal.4th at p. 389 [no cognizable 

interruption where no lapse in defendant‘s culpable mental state].)

Defendant argues that Yolanda was not surprised as evidenced by her 

attempt to flee when defendant retrieved the plastic container. However, the 

attack on her had already begun. Initially, on seeing defendant as planned and on 

having had a prior, peaceful meeting with defendant, Yolanda would not 

immediately have suspected she was in danger and could not have anticipated 

defendant‘s deadly intentions. (See e.g., People v. Moon, supra, 37 Cal.4th at pp.

22, 24 [being well acquainted with defendant, victim would not immediately 

suspect danger].) Also, because it appeared that the prior domestic assaults on 

Yolanda occurred within the privacy of their home, the jury could reasonably infer 

that she could not have anticipated that defendant would beat her in public and 

certainly not set her on fire there. (See e.g., People v. Stevens (2007) 41 Cal.4th 

182, 203 [defendant lured victim into vulnerable position by creating or exploiting 

false sense of security].)

Because we find that substantial evidence supports the lying-in-wait special 

circumstance, we also conclude there was substantial evidence to support the 

lying-in-wait theory of first degree murder. 

Defendant contends that if we conclude the evidence is sufficient to support 

the lying-in-wait special-circumstance finding here, then the special circumstance 

is unconstitutional as applied to this case. In essence, defendant argues that the 

lying-in-wait special circumstance is too broad if the facts of this case fall within 

it. ―That is simply another way to state his facial attack on the statute, which we 

have rejected [below]. [Citation.]‖ (People v. Lewis, supra, 43 Cal.4th at p. 517.)
56

4. Unconstitutionality of the Torture Special-circumstance and Murder 

by Torture Instructions

The trial court instructed the jury with CALJIC No. 8.81.18, directing that a 

true finding as to the torture special circumstance required proof that defendant 

intended to kill a human being; that defendant ―intended to inflict extreme cruel 

physical pain and suffering upon a living human being for the purpose of revenge, 

extortion, persuasion or for any sadistic purpose;‖ and that defendant ―did, in fact, 

inflict extreme cruel physical pain and suffering upon a living human being no 

matter how long its duration.‖ 

Defendant contends that the language ―extreme cruel physical pain‖ and 

―any sadistic purpose‖ renders the instruction unconstitutionally vague and 

overbroad. He further claims that the trial court‘s giving of CALJIC No. 8.24, 

which used similar language (―extreme and prolonged pain . . . for . . . any sadistic 

purpose‖) regarding first degree murder by torture, is also too vague. We have 

previously rejected such claims and do so again here. (People v. Whisenhunt,

supra, 44 Cal.4th at p. 223; People v. Cook, supra, 39 Cal.4th at p. 602; People v.

Chatman, supra, 38 Cal.4th at pp. 394-395; People v. Raley (1992) 2 Cal.4th 879, 

898-902.)

Defendant further claims that the giving of CALJIC No. 8.81.18 confused 

the jury by stating that defendant must have inflicted pain, but the victim‘s 

awareness of pain was not required. We have rejected this contention before and 

continue to do so. (People v. Chatman, supra, 38 Cal.4th at p. 394; People v.

Cole, supra, 33 Cal.4th at p. 1228.) Moreover, although the instruction included 

the requirement involving the infliction of extreme cruel physical pain on a living 

victim, that requirement was eliminated by the enactment of Proposition 115 in 

1990. (People v. Elliot, supra, 37 Cal.4th at pp. 453, 476-477.) Because the 1990 

amendment governs this case, the required finding of an additional but 
57

unnecessary ―element‖ could redound only to defendant‘s benefit. (See People v.

Cole, supra, 33 Cal.4th at p. 1228.)

Finally, contrary to defendant‘s claim, the special circumstance of 

intentional murder involving the infliction of torture does not violate the Eighth 

Amendment by failing to narrow the class of persons eligible for the death penalty. 

(People v. Jennings (2010) 50 Cal.4th 616, 649; People v. Bemore (2000) 22 

Cal.4th 809, 843; People Barnett (1998) 17 Cal.4th 1044, 1162-1163; see People 

v. Davenport (1985) 41 Cal.3d 247, 271 [torture special circumstance 

distinguished from murder by torture by requiring intent to kill].)

5. Unconstitutionality of Lying-in-wait Special Circumstance and 

Instructions

Defendant claims that CALJIC No. 8.81.15, the lying-in-wait specialcircumstance instruction given in this case, omitted key elements. First, he 

contends that the standard instruction failed to explain to the jury that the 

concealed purpose must be an intent to kill and that the watchful waiting had to be 

for a time to launch a lethal attack. He argues that because the evidence supported 

a finding that his true concealed intent was to take his son, the instructions would 

have permitted the jury to find that the concealment and watchful waiting elements 

were satisfied based only on such a nonlethal intent. He is wrong. 

CALJIC No. 8.81.15 instructed that ―for a killing to be perpetuated while 

lying in wait‖: (1) the killing must be intentional and (2) ―both the concealment 

and watchful waiting as well as the killing must occur during the same time 

period, or in an uninterrupted attack commencing no later than the moment 

concealment ends.‖ In addition, the instruction required an immediate killing or a 

continuous flow of the uninterrupted lethal events from the period of lying in wait. 

(Ibid.) Finally, the instruction stated that, ―[W]hen a defendant intentionally

murders another person, under circumstances which include (1) a concealment of 
58

purpose, (2) a substantial period of watching and waiting for an opportune time to 

act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim 

from a position of advantage, the special circumstance of murder while lying in 

wait has been established.‖ (Ibid.) Because the instruction required an intentional 

killing and an uninterrupted connection between the lethal acts and the period of 

lying in wait, a reasonable jury would not have believed that the nonlethal act and 

intent of taking Little Howie would have satisfied the requirements of 

concealment of purpose and watchful waiting to act.

Second, defendant contends that the special instructions given by the court 

at the prosecutor‘s request, together with CALJIC No. 8.81.15, failed to instruct 

on an intent to kill and eliminated the immediacy of attack requirement. Again, he 

is wrong.

The prosecutor requested three special instructions on lying in wait. 

Although defendant objected to special instructions 1 and 3, the trial court gave all 

three special instructions. Special instruction 1 emphasized that the special 

circumstance of lying in wait — unlike lying-in-wait murder — required that the 

killing be committed ―while‖ lying in wait. Elaborating on the distinction, special 

instruction 3 explained: ―Use of the word  ̳while‘ in the special circumstance of 

lying in wait means that the killing must take place during the period of 

concealment and watchful waiting or the lethal acts must begin at and flow 

continuously from the moment the concealment and watchful waiting ends. If a 

cognizable interruption separates the period of lying in wait from the period during 

which the killing takes place, the special circumstance does not exist. A brief

interval of time between the killer‘s first appearance and the acts inflicted which 

cause the killing do not necessarily negate a surprise attack, so long as there is a 

continuous flow in the culpable state of mind between the period of watchful 

waiting and the homicide.‖ 
59

Focusing on the last sentence of special instruction 3, defendant claims that 

because ―it is not clear to what culpable state of mind the instruction refers,‖ the 

jury ―could equate culpable mental state with one that is non-lethal or merely 

deceitful,‖ i.e., that defendant‘s intent was to take his son from Yolanda by a ruse. 

However, when considered with CALJIC No. 8.81.15, it is clear that the necessary

―culpable state of mind‖ was the intent to kill. Moreover, during closing 

argument, the prosecutor emphasized the requirement of intent to kill. Thus, there 

is no reasonable likelihood the jury misapplied the instruction in the manner 

defendant claims. (People v. Huggins (2006) 38 Cal.4th 175, 192.) 

Defendant further claims that the last sentence of special instruction 3 told 

the jury that ―  ̳the continuous flow‘ only need be  ̳the culpable state of mind‘ 

regardless of the actual events that had occurred‖ and that a continuous flow of 

the lethal events was not required. Again, defendant focuses on an isolated 

sentence rather than the full context. The first sentence of special instruction 3

told the jury that ―the lethal acts must begin at and flow continuously from the 

moment the concealment and watchful waiting ends.‖ CALJIC No. 8.81.15 also 

told the jury that ―If there is a clear interruption separating the period of lying in 

wait from the period during which the killing takes place, so that there is neither 

an immediate killing nor a continuous flow of the uninterrupted lethal events, the 

special circumstance is not proved.‖ (Italics added.) The instruction further stated 

that the surprise attack must occur immediately after the period of watching and 

waiting. Considered as a whole, the instructions clearly conveyed the immediacy 

requirement regarding the lethal acts.

Finally, defendant contends that the lying-in-wait special circumstance is 

unconstitutional because there is no meaningful distinction between the special 

circumstance, and premeditated, deliberate murder and murder by means of lying 

in wait. He also argues the special circumstance does not meaningfully 
60

distinguish death eligible defendants from those not death eligible. We have 

rejected these contentions before and continue to do so. (People v. Stevens, supra, 

41 Cal.4th at pp. 203-204; People v. Nakahara (2003) 30 Cal.4th 705, 721; People 

v. Gutierrez (2009) 28 Cal.4th 1083, 1148-1149.)

6. Unconstitutionality of Jury Instructions Assertedly Affecting 

Reasonable Doubt Standard

Without objection, the trial court gave the standard instructions on (1) 

circumstantial evidence (CALJIC Nos. 2.01 [sufficiency of circumstantial 

evidence-generally], 2.02 [sufficiency of circumstantial evidence to prove specific 

intent], 8.83 [sufficiency of circumstantial evidence to prove the special 

circumstance], and 8.83.1 [sufficiency of circumstantial evidence to prove mental 

state]); (2) the definition of reasonable doubt (CALJIC Nos. 2.90); (3) motive 

(CALJIC Nos. 2.51); and (4) other general principles (CALJIC Nos. 1.00 

[respective duties of judge and jury], 2.21.1 [discrepancies in testimony], 2.21.2 

[witness willfully false], 2.22 [weighing conflicting testimony], 2.27 [sufficiency 

of testimony of one witness], 8.20 [deliberate and premeditated murder]).

Defendant claims that those instructions, singly and collectively, impermissibly 

diluted the reasonable doubt standard. 

We have repeatedly rejected the same challenges to all of these instructions. 

(People v. Parson (2008) 44 Cal.4th 332, 358; People v. Whisenhunt, supra, 44 

Cal.4th at pp. 220-221; People v. Howard (2008) 42 Cal.4th 1000, 1025-1026 & 

fn. 14; People v. Kelly (2007) 42 Cal.4th 763, 792.) Each of these instructions ― 

 ̳is unobjectionable when, as here, it is accompanied by the usual instructions on 

reasonable doubt, the presumption of innocence, and the People‘s burden of 

proof.‘ ‖ (People v. Kelly, supra, 42 Cal.4th at p. 792.) 
61

7. Flight instruction

The trial court instructed the jury, pursuant to CALJIC No. 2.52, that a 

person‘s flight immediately after a crime, or after he or she is accused of a crime, 

cannot alone establish guilt, but may be considered together with other proven 

facts in deciding the defendant‘s guilt or innocence. Defendant does not contend 

that the instruction was not supported by the evidence. Rather, he claims that the 

giving of this instruction violated his constitutional rights because it unnecessarily 

duplicated the circumstantial evidence instructions, was impermissibly 

argumentative, and improperly permitted the jury to draw irrational inferences 

concerning defendant‘s mental state before or during the killing.

Contrary to defendant‘s claim, CALJIC No. 2.52 is not a duplicate

instruction. CALJIC Nos. 2.00, 2.01, and 2.02 instructed on the definition of 

circumstantial evidence and its sufficiency in establishing facts to establish guilt. 

On the other hand, CALJIC No. 2.52 was a cautionary instruction that benefitted 

the defense by ―admonishing the jury to circumspection regarding evidence that 

might otherwise be considered decisively inculpatory.‖ (People v. Jackson (1996) 

13 Cal.4th 1164, 1224.)

Regarding the remaining claims, we repeatedly have rejected these 

challenges to the instruction. (People v. Loker (2008) 44 Cal.4th 691, 706-707; 

People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Morgan (2007) 42 

Cal.4th 593, 621; People v. Zambrano (2007) 41 Cal.4th 1082, 1160; People v.

Thornton (2007) 41 Cal.4th 391, 438; People v. Jurado (2006) 38 Cal.4th 72, 125-

126.) 

8. Failure to instruct that jurors must agree unanimously on theory of 

first degree murder

The trial court instructed the jury on first degree premeditated murder, first 

degree murder by torture, and first degree murder perpetuated by means of lying in 
62

wait. The court did not instruct the jury that it must agree unanimously on a 

theory of first degree murder to find him guilty of that charge. Defendant argues 

that this instructional omission was prejudicial error. We rejected the identical 

claim in People v. Cole, supra, 33 Cal.4th 1158, where the jury was instructed on 

the same theories of first degree murder as in this case. (Id. at p. 1221; see also 

People v. Whisenhunt, supra, 44 Cal.4th at p. 222.) In any event, the jury 

unanimously found true the torture-murder and lying-in-wait special-circumstance 

allegations. Therefore, the jury unanimously agreed that defendant committed the 

crime of first degree murder on both theories of torture murder and lying-in-wait 

murder. (People v. Moon, supra, 37 Cal.4th at p. 22; People v. Cole, supra, 33 

Cal.4th at pp. 1226-1227; see People v. Hawthorne, supra, 46 Cal.4th at pp. 89-

90.)

D. Penalty Phase Issues

1. Failure to give CALJIC No. 8.88

Defendant claims that the trial court‘s failure to instruct the jury on the 

process of weighing the aggravating and mitigating factors to determine the 

appropriate penalty, in the language of CALJIC No. 8.88, requires reversal of the 

penalty judgment. We conclude that based on the whole record including the 

instructions given, arguments of counsel, and the court‘s response to the jury‘s 

note during deliberations, the failure to instruct on the procedure used in 

determining penalty, though error, was harmless in this case.

After defining the meaning of aggravating and mitigating factors,

8 CALJIC 

No. 8.88 instructs the jury on the procedure used in weighing the aggravating and 

 

8 Because the words ―aggravating‖ and ―mitigating‖ are commonly 

understood terms, a definitional instruction is not required. (People v. Brasure, 

supra, 42 Cal.4th at p. 1066.)
63

mitigating circumstances in determining the appropriate penalty. It states, in 

relevant part:

―The weighing of aggravating and mitigating circumstances does not mean 

a mere mechanical counting of factors on each side of an imaginary scale, or the 

arbitrary assignment of weights to any of them. You are free to assign whatever 

moral or sympathetic value you deem appropriate to each and all of the various 

factors you are permitted to consider. In weighing the various circumstances, you 

determine under the relevant evidence which penalty is justified and appropriate 

by considering the totality of the aggravating circumstances with the totality of the 

mitigating circumstances. To return a judgment of death, each of you must be 

persuaded that the aggravating circumstances are so substantial in comparison 

with the mitigating circumstances that it warrants death instead of life without 

parole.‖

It appears that the trial court intended to give CALJIC No. 8.88, but 

inadvertently omitted part of the instruction, including the above paragraph. The 

record indicates that the trial court meant to divide the instruction into two parts 

and to give each part separately. It gave a modified version of the second part of 

CALJIC No. 8.88 as the concluding instruction, but inexplicably failed to give the 

first part of the instruction.9 

CALJIC No. 8.88 was drafted in response to People v. Brown (1985) 40 

Cal.3d 512 (Brown). Former CALJIC No. 8.84.2 (the predecessor to CALJIC No. 

 

9 The trial court instructed: ―You shall now retire and select one of your 

number to act as foreperson. He or she will preside over your deliberations. In 

order to make a determination as to the penalty, all twelve jurors must agree. As 

soon as you have agreed upon a verdict so that, when polled, each may state 

truthfully that the verdict expresses his or her vote, have it dated and signed by 

your foreperson and then return it to this courtroom. Return any unsigned verdict 

forms.‖ 
64

8.88) instructed, in the unadorned language of section 190.3, that the jury ―shall‖ 

impose a sentence of death if it concludes that the aggravating circumstances 

outweigh the mitigating circumstances. Conversely, it instructed that the jury 

―shall‖ impose a sentence of confinement in state prison for life without possibility 

of parole if it concludes that the aggravating circumstances do not outweigh the 

mitigating circumstances. (People v. Myers (1987) 43 Cal.3d 250, 273; People v.

Allen (1986) 42 Cal.3d 1222, 1276.) In Brown, we held that an instruction using 

this language could confuse and mislead the jury regarding the manner in which 

penalty should be determined. (Brown, supra, 40 Cal.3d at p. 544, fn. 17.) ―One 

danger is that the jury will perform the weighing process in a mechanical fashion 

by comparing the number of factors in aggravation with the number in mitigation, 

or by the arbitrary assignment of weights to the factors. [Citation.] The other 

danger is that the jury will fail to understand that our statutory scheme does not 

require any juror to vote for the death penalty unless, as a result of the weighing 

process, the juror personally determines that death is the appropriate penalty under 

all the circumstances. [Citations.]‖ (People v. Edelbacher (1989) 47 Cal.3d 983, 

1035 (Edelbacher).) 

Regarding pre-Brown cases, in which the trial court instructed in the 

unadorned language of section 190.3, we stated we would examine each prior case 

―on its own merits to determine whether, in context, the sentencer may have been 

misled to defendant‘s prejudice about the scope of its sentencing discretion under 

the 1978 law.‖ (Brown, supra, 40 Cal.3d at p. 544, fn. 17.)

Consequently, in such pre-Brown cases, we reviewed the whole record, 

including the arguments of counsel, to determine whether instructing in the 

unadorned statutory language and omitting clarifying language, may have mislead 

the jury to defendant‘s prejudice concerning the proper scope of its sentencing 

discretion. (See e.g., Edelbacher, supra, 47 Cal.3d at p. 1037; People v. Myers,
65

supra, 43 Cal.3d at p. 275 (Myers); People v. Allen, supra, 42 Cal.3d at pp. 1277-

1280 (Allen).)

In Allen, we held that it was not likely the jury was misled about the scope 

of its sentencing discretion. In making that determination, we emphasized that the 

prosecutor, during argument, did nothing to mislead the jury about the weighing 

process and its weighing discretion, but that ―he in fact left it with the 

understanding that the value to be assigned to the aggravating and mitigating 

factors was a matter to be decided by each individual juror.‖ (Allen, supra, 42 

Cal.3d at p. 1278.) Also, we noted that during argument, the prosecutor never 

misled the jury about its sole responsibility of determining the appropriate penalty 

based on its individualized weighing discretion, but instead focused on the 

appropriateness of the death penalty under all the circumstances of the case. (Id. 

at pp. 1278-1280.)

In Myers, we held that it was unlikely the jury was misled regarding the 

first source of potential confusion — the nature of the weighing process —

identified in Brown. We relied on the fact that the prosecutor and defense counsel 

correctly argued that the jury was free to ―  ̳attach whatever weight is appropriate‘

to each of the relevant factors.‖ (Myers, supra, 43 Cal.3d at p. 275.) Regarding 

the second source of potential confusion — the discretionary nature of the penalty 

determination — identified in Brown, we concluded that there ―seem[ed] no 

question but that the jury may well have been misled to defendant‘s prejudice.‖ 

(Ibid.) We noted that the prosecutor incorrectly argued that the penalty 

determination was simply a weighing process, that the determination of penalty 

was mandatory based on whether the aggravating or mitigating circumstances 

preponderated, and that when the weighing process was completed, the jury could 

not return a penalty verdict based on its personal preference. (Ibid.) In reversing 

the death judgment, we further noted that ―the prosecutor‘s characterization of the 
66

jury‘s function . . . was not refuted or corrected by the court‘s instructions.‖ (Id. at 

p. 276.)

As in Allen and Myers, the trial court in Edelbacher instructed in the 

unadorned language of section 190.3. In determining whether there was 

substantial danger that the jury was misled with respect to the two sources of 

potential confusion identified in Brown, we looked to the instructions given, the 

arguments of counsel, and the trial court‘s failure to instruct on crucial aspects of 

the penalty process. (Edelbacher, supra, 47 Cal.3d at pp. 1036-1041.)

Regarding the nature of the weighing process, we noted that the court gave 

a supplemental explanatory instruction that told the jury it was not to determine 

the ultimate punishment by simply counting the number of aggravating and 

mitigating circumstances on each side, but to determine their weight by their 

relative convincing force. On the other hand, the court refused to instruct that the 

weight to be given any factor was to be decided by each juror individually. We 

concluded that ―on the whole,‖ the arguments of counsel were ―not seriously 

misleading‖ because the prosecutor and defense counsel correctly stated in 

argument that the weighing process was qualitative and that the sheer number of 

factors in aggravation or mitigation was not determinative. (Edelbacher, supra, 47 

Cal.3d at p.1036.)

Regarding the discretionary nature of the penalty determination within the 

context of the weighing process, we noted that the trial court did not inform the 

jury that its responsibility, based on its individualized weighing discretion, was to 

determine the appropriate penalty or that the weight to be given any factor was to 

be decided by each juror individually. (Edelbacher, supra, 47 Cal.3d at pp. 1036-

1037.) We stated that, ―The failure to give any sufficient clarifying instruction on 

this crucial aspect of the penalty determination process requires us to examine the 

whole record, including the arguments of counsel, to determine whether the jury 
67

may have been misled to defendant‘s prejudice concerning the proper scope of its 

sentencing discretion.‖ (Edelbacher, supra, 47 Cal.3d at p. 1037.) 

We noted that during argument, the prosecutor repeatedly emphasized that 

the determination was simply a weighing process and that a death sentence was 

mandatory if aggravating circumstances preponderated, without reference to the 

jury‘s view of the appropriateness of the penalty. Although defense counsel 

stressed the individualized and moral or normative nature of the penalty decision

(Edelbacher, supra, 47 Cal.3d at pp. 1037-1040), we reasoned that ―[t]he 

prosecutor and defense counsel, through their arguments, constructed starkly 

different models of the sentencing process‖ and there was ―no way of knowing 

which model the jurors adopted in reaching their penalty verdict.‖ (Id. at p. 1040.) 

Thus, there was a substantial danger the jury was misled with respect to the proper 

context of the weighing process and the discretionary nature of the penalty 

determination. (Id. at p. 1036.)

In People v. Brasure, supra, 42 Cal.4th 1037 (a post-Brown case), the trial 

court substituted its own instruction for CALJIC No. 8.88. It told the jury it 

―  ̳shall impose a sentence of death if the jury concludes that the aggravating 

circumstances outweigh the mitigating circumstances‘ ‖ and ―omitted the 

language of CALJIC No. 8.88 providing that to return a death verdict each juror 

 ̳must be persuaded that the aggravating circumstances are so substantial in 

comparison with the mitigating circumstances that it warrants death instead of life 

without parole.‘ ‖ (People v. Brasure, supra, 42 Cal.4th at pp. 1060-1061.) 

After considering the totality of the instructions and arguments, we 

concluded that there was no reasonable likelihood the trial court's failure to 

instruct as directed in Brown misled the jurors as to the scope of their sentencing 

discretion or responsibility. (People v. Brasure, supra, 42 Cal.4th at pp. 1062, 

1064-1065.) 
68

Unlike the above cases, the trial court here did not give a confusing or 

misleading instruction, but failed to instruct the jury at all on the procedure used in 

determining penalty. (See Henderson v. Kibbe (1977) 431 U.S. 145, 155 [―[a]n 

omission, or an incomplete instruction, is less likely to be prejudicial than a 

misstatement of the law‖].) However, after considering the instructions given, the 

arguments of counsel, and the court‘s response to the jury‘s note during 

deliberations, we conclude that the court‘s failure to instruct in the pertinent 

language of CALJIC No. 8.88 did not mislead the jury or leave it without adequate 

guidance as to the scope of their sentencing discretion or responsibility. (People v.

Brasure, supra, 42 Cal.4th at pp. 1062, 1064-1065; cf. People v. Moon, supra, 37 

Cal.4th at p. 39 [omission of evidentiary instructions at penalty phase, though 

error, was harmless; defendant failed to demonstrate that instructions given, to a 

reasonable likelihood, precluded jury from considering any constitutionally 

relevant mitigating evidence].)

Before the court instructed the jury, the parties gave their closing 

arguments. Neither party objected to the opposing party‘s comments on the 

procedure used in determining the appropriate penalty. During argument, the 

prosecutor never suggested that the weighing process was a mechanical, 

quantitative process, but instead told the jury it involved a qualitative process, 

allowing each juror the choice to assign any moral or sympathetic value to each of 

the factors. In this regard, the prosecutor argued: 

―In this phase, you must consider any sympathetic aspect of the defendant‘s 

character or anything else that he has coming to him for mitigation. You must 

consider that and weigh it. That‘s only fair. So go ahead and do that.‖

The prosecutor further stated: 

―If [defendant] deserves any sympathy, again, then give it to him. If he is 

sincere about finding God, then good for him. But what he has done is simply not 
69

sufficient to override — I‘m sorry — what he feels about sympathy is simply not 

sufficient to override all this horrible stuff he‘s done here. The aggravating factors 

clearly and substantially outweigh any of that.

―And none of you, in your jury questionnaires, said  ̳Well, you know, I 

don‘t care what a guy‘s done or how bad it is, as long as he says he‘s sorry. If he 

says he‘s sorry, then I‘ll give him a pass. I‘ll let him have LWOP.‘ None of you 

said that. And you shouldn‘t, of course. I mean, you take it into account, but 

you‘re supposed to weigh it. If the aggravating circumstances outweighs 

mitigating, that‘s what you do. 

―His soul may belong to God, but under our law, his life belongs to the 

State because of our system of justice, which requires that you weigh and consider 

both. And if the aggravating substantially outweighs the mitigating, death penalty. 

That‘s the way our law is. And that‘s what you must follow.‖ 

Defense counsel reinforced that the weighing function was a qualitative 

assessment, explaining: ―Now you are free to assign your own sympathetic or 

moral value to each one of these factors. The law doesn‘t — doesn‘t require you 

to set certain values. You do this on your own values.‖ 

Moreover, unlike Myers and Edelbacher, the prosecutor never suggested 

that a death sentence was mandatory if aggravating circumstances simply 

preponderated, but instead conveyed that the penalty determination was 

discretionary and rested on the jury‘s view of the appropriateness of the penalty. 

He stated:

―In this case we‘re asking a very serious decision be made here. And I‘m 

fully aware of how serious it is and what I‘m asking you to do. I‘m asking you to 

give [defendant] the death penalty. And the way I‘m asking you to arrive at that 

decision, which I believe to be the just decision, is to engage in a weighing 

process. 
70

―The judge is going to instruct you that what you need to do is to weigh all 

these various aggravating and mitigating factors that we kind of touched upon in 

the first part of the trial. And the notion is that you must weigh all of this together. 

And if the aggravating factors, particularly A, B, and C, which I‘ll get to in a 

second, if they substantially outweigh the mitigating factors and you believe that‘s 

the proper verdict, then you should vote for the death penalty. And that‘s what 

we‘re asking you to do here.‖10 (Italics added.) 

As with the prosecutor, defense counsel reiterated the applicable standard 

as set forth in CALIC No. 8.88. He told the jury that ―to return a judgment of 

death, each of you must be persuaded that the aggravating circumstances . . . are 

so substantial in comparison to the mitigating circumstances it warrants death 

instead of life without possibility of parole. So the factors in aggravation have to 

be so substantial in your mind in comparison to the mitigating factors that you are 

going to kill this man.‖ 

 

10 Defendant claims that the prosecutor improperly argued that if the 

aggravating circumstances outweighed the mitigating circumstances, death was 

mandatory. He points to the following passage in which the prosecutor argued: 

―The law says we give the death penalty where the aggravating factors 

substantially outweigh the mitigating factors in a given case. That means there‘s a 

line, a line you just don‘t cross. And if you cross that line, if you go over that line, 

you go too far, then you‘ve done a crime that requires the death penalty. [¶] And 

you need to ask yourselves and ask your hearts, is this the kind of crime that is so 

heinous, so wicked, so mean spirited that it requires the death penalty? Even if 

you find some sympathy for [defendant] for one reason or another, your job is to 

act as the conscience of the community and to exercise your own conscience and 

say,  ̳I‘m sorry, [defendant]. I might feel sorry for you for this reason or that, but 

you crossed the line, you went too far. You committed this most heinous of 

murders.‖ 

When taken in context, the prosecutor was simply arguing that once the 

floor has been established, where the aggravating factors substantially outweigh 

the mitigating ones, the death penalty was the appropriate penalty in light of the 

circumstances of the crime.
71

Also, defense counsel clarified even further the individualized and moral or 

normative nature of both the weighing process and the ultimate, penalty 

determination. He emphasized that the jury could apply sympathy or moral values 

to specifically designated factors, stating ―[y]ou could apply some value to it, 

sympathy or moral value of your own. You own feelings, not somebody else‘s.‖ 

(Italics added.) Counsel further emphasized that the final decision regarding 

penalty was an individual one: ―[y]ou have to decide whether or not he lives or 

dies. That has to come from you. You have to apply your sympathetic and moral 

values that you have on your own.‖ 

Defense counsel concluded his argument with the final remarks:

―When you go back there and decide and think of this and look at this, 

remember that the letter of the law allows you as an individual, as a person, to 

decide whether or not you are going to accept a factor or you are going to apply 

some less value to one factor than you will the other factor. That is you, as 

individuals, must do that in your own conscience, your own way. 

―We need each and every one of your decisions, your judgment. We need 

for you to go in there and talk and discuss it with each other and not get angry with 

each other, and discuss it with each other, so that you can come to a reasonable 

verdict. Whatever the law requires. We need for you to listen to the others when 

the others are against you or for the people that are against one or two persons. 

Listen. The one or two persons, maybe they might have something to offer. But 

whatever it is, we need each and every one of you individually to come up with a 

decision.‖ 

The trial court then instructed that the jury was to determine which penalty 

to impose, death or confinement in the state prison for life without possibility of 

parole, and that the ―law expressly states that it voices no opinion as to which 

penalty is preferred.‖ It instructed, in the language of CALJIC No. 8.85, that ―[i]n 
72

determining which penalty is to be imposed on defendant, you shall consider all of 

the evidence which has been received during any part of the trial of this case.‖ 

The court further enumerated various factors in aggravation and mitigation and 

instructed that the jury ―shall consider, take into account and be guided by [those] 

factors, if applicable.‖ (Ibid.) One of those factors told the jury to consider ―[a]ny 

other circumstance which extenuates the gravity of the crime even though it is not 

a legal excuse for the crime and any sympathetic or other aspect of the defendant‘s 

character or record that the defendant offers as a basis for a sentence less than 

death, whether or not related to the offense for which he is on trial.‖ (Ibid.; see 

§ 190.3, factor (k).)

Regarding another factor, other criminal activity involving the use of, 

attempted use of, or threat to use force or violence (§ 190.3, factor (b)), the trial 

court instructed in the language of CALJIC No. 8.87, that ―[i]t is not necessary for 

all jurors to agree. If any individual juror is convinced beyond a reasonable doubt 

that the criminal activity occurred, that juror may consider that activity as a fact in 

aggravation. If a juror is not so convinced, that juror must not consider that 

evidence for any purpose.‖ (Italics added.)

The trial court further instructed that the People and the defendant ―have a 

right to expect that you will . . . exercise your discretion conscientiously, and reach 

a just verdict,‖ and ―are entitled to the individual opinion of each juror,‖ and that 

―[e]ach of you must decide the case for yourself.‖ 

Thus, the instructions informed the jurors that the penalty verdict was an 

individual, discretionary decision, and that as to at least one factor, each juror was 

to determine individually whether that factor was an aggravating circumstance.11 

 

11 Defendant contends that the trial court erred in informing the jury there had 

been a prior penalty phase trial because it was reasonably likely that the jurors 

(footnote continued on next page)
73

Most telling were the events that occurred during deliberations. After 

deliberating for approximately six and a half hours, the jury sent the following 

note to the trial court:

―Assume the aggravating circumstances in the case, as stated in 8.85, 

significantly outway [sic] the mitigating circumstances, may we still select life 

without the possibility of parole?

―Is the opinion of the juror(s) that the circumstances presented in this case 

do not meet the minimum standards for the sentence of death allowed as a 

mitigating circumstance?‖ 

The trial court responded: ―Under the law you are permitted to reach any 

verdict you wish as to the appropriate penalty.‖ 

The note‘s first question strongly indicates that despite the omission of the 

portion of CALJIC No. 8.88 at issue, the jury understood its duty to engage in a 

weighing process. It further indicates that the jury‘s deliberations were guided by 

the ―so substantial‖ standard by which it was to weigh the aggravating and 

mitigating circumstances. Indeed, because the word ―significantly‖ has a 

qualitative connotation, the jury‘s use of that word further suggests it was aware of 

the normative nature of the weighing process. 

Defense counsel did not object to the trial court‘s response, indicating 

counsel believed it was a correct statement of the law. Although the trial court 

 

(footnote continued from previous page)

would believe another jury would decide the penalty after them and thus, lessen 

their sense of responsibility. During voir dire, the trial court informed the 

prospective jurors about the prior penalty trial to determine whether they had been 

exposed to any publicity about that trial. Because the court explained that a 

decision had not been made at the previous penalty trial, defendant‘s supposition 

appears unlikely. 
74

should have responded with the giving of CALJIC No. 8.88, nevertheless, it 

reaffirmed that it was within the jury‘s discretion to arrive at the appropriate 

penalty. The court‘s response correctly informed the jurors that even after they 

engaged in the weighing process, they had the discretion to vote for life without 

possibility of parole. 

Defendant argues that the note‘s second question shows that certain jurors 

did not believe that death was the appropriate penalty, but were unsure whether 

this merely constituted a mitigating circumstance that should be weighed against 

aggravating circumstances or whether their belief that death was not the 

appropriate penalty was sufficient to vote for life even if aggravation outweighed 

mitigation. However, as the Attorney General argues, defendant reads too much 

into the question. The note could also be interpreted as asking whether the 

absence of an aggravating circumstance is a mitigating circumstance. (Cf. People 

v. Jackson, supra, 45 Cal.4th at p. 695 [trial court not required to instruct that the 

absence of a mitigating factor is not aggravating].) 

Twenty-two minutes after the trial court sent its response to the jury, the 

jury sent another note stating, ―We cannot all come to a verdict. No unanimous 

verdict.‖ The trial court informed the jurors that it would not be in session on 

Friday or the following Monday and directed them to return the following Tuesday 

after a four-day break. The jury resumed deliberations on Tuesday morning and 

reached a verdict that afternoon. 

As the Attorney General argues, the jury‘s deadlock indicates that the jury 

understood they could vote for life without parole even under the circumstances 

presented in the note, i.e., where the aggravating circumstances substantially 

outweighed the mitigating circumstances or as defendant argues, where one or 

more jurors felt the case did not meet the minimum standards for death. The 

jury‘s deadlock further shows that at least one juror chose to exercise his or her 
75

discretion to vote for life without parole, as permitted by the court‘s response to 

the jury‘s note. It was only after further deliberations that the jury unanimously 

agreed death was the appropriate verdict. When polled by the court, each juror 

answered that the death verdict was his or her ―personal verdict.‖ 

Accordingly, after considering the instructions given, the arguments of 

counsel, the jury‘s note and the trial court‘s response, and the subsequent events 

suggesting the jury was aware of its proper role in weighing the aggravating and 

mitigating circumstances, we conclude that there was no reasonable likelihood the 

trial court's failure to instruct in the relevant language of CALJIC No. 8.88 misled 

the jurors or left them without adequate guidance as to the scope of their 

sentencing discretion or responsibility.12

2. Admission of Photographs and Tape Recording of Victim in the 

Ambulance

Defendant claims that admission of two photographs showing injuries to 

the victim and the tape recording of the victim‘s screams during the ambulance 

ride to the hospital violated Evidence Code section 352 and his federal 

constitutional rights. The trial court did not abuse its discretion in admitting the 

evidence.

 

12 The trial court further erred in instructing, pursuant to CALJIC No. 1.00, 

that ―[b]oth the People and the Defendant have a right to expect that you will 

conscientiously consider and weigh the evidence, apply the law, and reach a just 

verdict regardless of the consequences.‖ This instruction applies only to guilt and 

should not be given in the penalty phase of trial because it has the potential to 

diminish the jury‘s responsibility for the penalty decision. (People v. Ray (1996) 

13 Cal.4th 313, 354; People v. Jennings (1988) 46 Cal.3d 963, 991.) For the same 

reasons omission of CALJIC No. 8.88 was not prejudicial, there was no 

reasonable likelihood the jurors would have understood that the single, 

inapplicable phrase reduced their responsibility for choosing the appropriate 

consequence of life without parole or death. (People v. Kipp (1998) 18 Cal.4th 

349, 380; People v. Babbit (1988) 45 Cal.3d 660, 717-719.)
76

Before the penalty retrial, defense counsel moved to exclude photographs 

of the victim‘s injuries and the ambulance recording as irrelevant. Counsel argued 

that defendant had already been convicted of committing murder by torture at the 

guilt phase and that the only purpose for admitting the photographs and ambulance 

tape would be to inflame the jury. The prosecutor argued that the evidence was 

relevant to show the circumstances of the crime (§ 190.3, factor (a)) and was 

particularly important to the jury‘s understanding of the nature and extent of 

Yolanda‘s injuries since this was not the same jury that had heard the guilt phase 

evidence. The prosecutor further argued that the ambulance tape was relevant as 

victim impact evidence. Defense counsel responded that the proffered evidence 

did not show the circumstances of the crime, only occurrences ―after the fact.‖ 

The trial court admitted two of the photographs and the ambulance tape as factor 

(a) evidence and as victim impact evidence. It expressly determined that the 

probative value of the evidence outweighed its prejudicial effect. 

As stated previously, the photographs and ambulance tape were highly 

relevant to the issues relating to torture murder and the torture special 

circumstance. (See ante, at pp. 34-40.) Thus, the trial court correctly admitted the 

evidence to show the circumstances of the crime (§ 190.3, factor (a)). Also, the 

court properly admitted the evidence as victim impact evidence to show the 

immediate impact of the crime on the victim and on the children who witnessed 

their mother or aunt burning and in pain. (See People v. Hawthorne, supra, 46 

Cal.4th at pp. 101-103.) 

Given the relevance of the photographs and the ambulance tape, the trial 

court did not abuse its broad discretion in concluding the evidence was more 

probative than prejudicial. (People v. Hawthorne, supra, 46 Cal.4th at p. 103.) 

Having concluded there was no error and no prejudice, we also reject defendant‘s 

federal constitutional claims. (Ibid.)
77

3. Lingering Doubt

Defendant claims the trial court: (1) improperly instructed that the jury 

must accept the previous jury‘s verdicts as having been proved beyond a 

reasonable doubt and (2) improperly refused his proposed instructions on the 

elements of the crimes and the concept of lingering doubt. He contends that his 

federal and state constitutional rights were violated because the court‘s rulings 

removed his lingering doubt defense from the jury‘s consideration. There was no 

error.

During the instructional conference, the trial court stated it intended to give 

the prosecution‘s proposed instruction which stated: ―You must accept the 

previous jury‘s verdicts as having been proved beyond a reasonable doubt.‖ 

Defendant asked the court to instruct on the elements of the offenses and special 

circumstances, and on the concept of lingering doubt. The court refused to give 

both requested instructions. It reasoned that those elements were not relevant 

since the issue of defendant‘s guilt and the truth of the special circumstances had 

already been determined by the previous jury. The court further reasoned that 

lingering doubt was a proper subject for argument, but not for instruction and that 

the proposed instruction was inappropriate because it was addressed to jurors who 

voted for conviction at the guilt phase. 

The trial court properly instructed the jury that the penalty phase jury must 

conclusively accept the previous guilt phase jury‘s findings on defendant‘s guilt 

and on the truth of the special-circumstance allegations. (People v. Harrison

(2005) 35 Cal.4th 208, 256; see also People v. Gay (2008) 42 Cal.4th 1195, 1223 

[defendant may not contest legality of prior guilt phase jury‘s adjudication of 

guilt]); People v. DeSantis (1992) 2 Cal.4th 1198, 1237-1238 [same].) The court‘s 

instruction did not remove the question of lingering doubt from the jury, but only 

told it the truth: that in the penalty phase defendant‘s guilt was conclusively 
78

presumed as a matter of law. (People v. DeSantis, supra, 2 Cal.4th at p. 1238.) 

Because the penalty jury could not relitigate defendant‘s guilt and the truth of the 

special-circumstance allegations, the trial court correctly refused to instruct on the 

elements of the offenses and special circumstances. 

Although it is proper for the penalty jury to consider lingering doubt, there 

is no constitutional right to instructions on lingering doubt. (People v. Hamilton

(2009) 45 Cal.4th 863, 948; People v. Brown (2003) 31 Cal.4th 518, 567.) ― 

 ̳Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and 

any other circumstance extenuating the gravity of the crime (id., factor (k)), 

together with defense argument highlighting the question of lingering or residual 

doubt, suffice to properly put the question before the penalty jury.‘ ‖ (People v.

Hamilton, supra, 45 Cal.4th at p. 948.) 

The court here instructed the jury to consider the circumstances of the 

crime and any other circumstances extenuating the gravity of the crime.

Defendant presented extensive evidence of lingering doubt as to his state of mind 

at the time he committed the crime, which was the only disputed issue open to 

lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223-

1226 [prejudicial error to exclude lingering doubt evidence contesting defendant‘s 

guilt as shooter when coupled with court‘s instruction to jury to disregard defense 

counsel‘s opening statement that it would hear lingering doubt evidence and 

instruction on conclusiveness of prior guilt jury‘s findings].) Defense counsel 

extensively argued lingering doubt during opening and closing arguments, in 

which he urged the jury to reconsider defendant‘s guilt and his state of mind. 

Thus, contrary to defendant‘s claim, the trial court‘s rulings did not remove the 

concept of lingering doubt from the jury‘s consideration. 
79

4. CALJIC No. 8.87

In connection with defendant‘s threats against the victim‘s siblings during 

his search for his family, the trial court instructed the jury with CALJIC No. 8.87, 

the standard instruction for considering other criminal activity under section 190.3, 

factor (b). Defendant argues that the instruction‘s reference to ―the criminal act 

which involved the express or implied use of force or violence or the threats of 

force or violence‖ removed from the jury the issue whether defendant‘s acts 

involved the use or threat of force or violence and improperly directed the jury to 

find that the other crimes involved force or violence. 

Initially, we reject the Attorney General‘s argument that the issue is 

forfeited because defendant failed to object at trial to the instruction. (People v.

D‘Arcy, supra, 48 Cal.4th at p. 302; People v. Gray (2005) 37 Cal.4th 168, 235.) 

On the merits, we have repeatedly rejected defendant‘s claim. CALJIC No. 

8.87‘s ―  ̳characterization of other crimes as involving express or implied use of 

force or violence, or the threat thereof, is a legal question properly decided by the 

court.‘ ‖ People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker, supra, 44 

Cal.4th at p. 745.)

5. Misdemeanor Conviction as an Aggravating Circumstance

Defendant contends that the trial court committed prejudicial error in 

instructing the jury it could consider his prior misdemeanor conviction under 

section 190.3, factor (c). Although we agree that the instruction was error, we find 

that it was not prejudicial. 

The jury was instructed that: ―Evidence has been introduced for the purpose 

of showing that the defendant has been convicted of the crimes of assault with a 

firearm, a violation of Penal Code section 245(a)(2), and shooting at an inhabited 

dwelling, Penal Code section 246, a misdemeanor, prior to the offense of murder 

in the first degree of which he has been found guilty in this case. [¶] Before you 
80

may consider any of such crimes as an aggravating circumstance in this case, you 

must first be satisfied beyond a reasonable doubt that the defendant was, in fact, 

convicted of the prior crimes.‖ (CALJIC No. 8.86.) 

A misdemeanor conviction may not be introduced in aggravation. (People 

v. Osband (1996) 13 Cal.4th 622, 735; People v. Montiel (1993) 5 Cal.4th 877, 

936.) Despite the erroneous instruction, the prosecutor and defense counsel, 

during argument, correctly referred only to the prior felony assault conviction as 

section 190.3, factor (c) evidence. Here, the error was harmless because the jury 

could properly consider under section 190.3, factor (b), the violent criminal 

conduct underlying the misdemeanor offense, i.e., shooting into a house with 

adults and children inside. (People v. Bunyard (2009) 45 Cal.4th 836, 857 

[§ 190.3, factor (b) applies to misdemeanor violent activity as well as felony 

activity]; People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [evidentiary and 

instructional error allowing jury to consider subsequent felony conviction under 

§ 190.3, factor (c) harmless; underlying violent criminal conduct properly 

admitted under § 190.3, factor (b)].) The danger that the jury would assign 

significant additional aggravating weight to the fact of conviction was minimal. 

(People v. Montiel, supra, 5 Cal.4th at p. 936.)

6. Challenges to the Death Penalty Law

Defendant challenges California‘s death penalty law for reasons previously 

rejected by this court in other cases. He raises no basis for reconsideration of 

these rulings.

―Specifically, the death penalty law adequately narrows the class of deatheligible defendants.‖ (People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Section 

190.3, factor (a), is not applied in such a ―wanton and freakish‖ manner that it 

results in the arbitrary and capricious imposition of the death penalty in violation 
81

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

Constitution. (People v. Mendoza (2011) 52 Cal.4th 1056, 1096.) ―  ̳ ―The jury 

need not make written findings, or achieve unanimity as to specific aggravating 

circumstances, or find beyond a reasonable doubt that an aggravating 

circumstance is proved (except for other crimes), that aggravating circumstances 

outweigh mitigating circumstances, or that death is the appropriate penalty. 

[Citations.] The death penalty statute is not unconstitutional for failing to provide 

the jury with instructions of the burden of proof and standard of proof for finding 

aggravating and mitigating circumstances in reaching a penalty determination.‖ ‘ ‖ 

(People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Moreover, jury unanimity is 

not required with regard to unadjudicated criminal activity. (People v. Dykes

(2009) 46 Cal.4th 731, 799.) The trial court was not required to instruct the jury 

that there is no burden of proof at the penalty phase, and that the beyond-areasonable-doubt standard and requirement of jury unanimity do not apply to 

mitigating factors. (People v. Mendoza, supra, 52 Cal.4th at pp. 1096-1097.) 

Defendant was not entitled to an instruction regarding a presumption of life. 

(People v. McKinnon (2011) 52 Cal.4th 610, 698.) The use of such adjectives in 

the sentencing factors statute as ―extreme‖ (§ 190.3, factors (d) & (g)), and 

―substantial‖ (§ 190.3, factor (g)) is constitutional. (People v. Mendoza, supra, 52

Cal.4th at p. 1098.) A trial court is not required to delete inapplicable sentencing 

factors or to instruct that statutory mitigating factors are relevant solely as 

potential mitigators. (Id. at p.1097.) Intercase proportionality review is not 

constitutionally required. (People v. McKinnon, supra, 52 Cal.4th at p. 698.)

Equal protection principles do not require the same procedural safeguards that 

apply to sentencing determinations in noncapital trials. (People v. Clark, supra,

52 Cal.4th at p. 1008.) Finally, defendant‘s sentence does not violate international 

law, ―as no authority  ̳prohibit[s] a sentence of death rendered in accordance with 
82

state and federal constitutional and statutory requirements.‘ ‖ (People v.

McKinnon, supra, 52 Cal.4th at p. 698.)

7. Cumulative Prejudice in Guilt and Penalty Phases

Defendant contends that the cumulative prejudicial effect of the errors in 

both the guilt and penalty phases mandates reversal of his conviction and sentence 

of death. We have rejected nearly all of defendant‘s claims of error. Where we 

have found error, we have determined defendant was not prejudiced. Whether 

such claims are considered individually or together, we find no prejudicial error at 

either phase of the proceedings.

DISPOSITION

We affirm the judgment. 

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Streeter

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S078027

Date Filed: June 7, 2012

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Bob N. Krug

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Andrew S. Love, 

Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary S. Schons, Assistant Attorney General, Annie Featherman Fraser and Melissa 

Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew S. Love

Deputy State Public Defender

221 Main street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

Melissa Mandel

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2211