1

Filed 12/8/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S118384

v. )

)

ANGELO MICHAEL MELENDEZ, )

) San Joaquin County

Defendant and Appellant. ) Super. Ct. No. SP081070B

____________________________________)

A jury convicted defendant, Angelo Michael Melendez, of the first degree 

murder of Koi Wilson under the special circumstance of murder in the commission 

of robbery, of the attempted premeditated murder of Ricky Richardson, and of first 

degree residential robbery. It also found true personal firearm-use allegations. 

After a penalty trial, the jury returned a verdict of death. The court denied the 

automatic motion to modify the verdict and imposed a judgment of death. This 

appeal is automatic. We affirm the judgment.

I. THE FACTS

A. Guilt Phase

1. Overview

During the night of December 12-13, 2000, defendant and LaTroy Taylor 

entered the Stockton home of Ricky Richardson and Koi Wilson. Within a few 

minutes, Wilson was fatally shot, Richardson was shot and seriously wounded, 

and money and marijuana were taken from the house. At a joint trial, the 
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prosecution theory was that defendant and Taylor committed the robbery together

and, based largely on Richardson‟s testimony, that defendant alone shot the two 

victims. Defendant admitted he was present during the robbery, but he claimed

Taylor was the shooter, and he did not know that Taylor intended to commit a 

robbery.

1

2. Prosecution Evidence

Ricky Richardson was the only surviving eyewitness to the events in the 

house that night other than the defendants themselves. He testified that he is a rap 

artist who made and marketed compact discs. He wrote his own lyrics. He also 

sold marijuana and had a part-time job. Koi Wilson was his fiancé and the mother 

of their infant daughter. He and LaTroy Taylor were good friends and saw each 

other on a regular basis. Richardson had known defendant since he was four or 

five years old. Defendant was more than 20 years older than Richardson and had 

been a friend of Richardson‟s father. Richardson called defendant “Uncle 

Angelo.”

Richardson and Wilson were at their Stockton home the evening of

December 12, 2000. Their baby was sleeping in a back bedroom. At some point, 

Taylor came to the house. Richardson was not surprised to see Taylor, and he 

opened the front door to let him in. As he did so, to his surprise, he also saw 

defendant outside. Richardson let both of them in the house. Defendant asked to 

use the bathroom and went inside the bathroom. Richardson and Taylor went into 

the den, where Taylor asked for some marijuana. Wilson was sitting on a couch. 

Richardson also sat down, with Wilson sitting between Richardson and Taylor. 

 

1 The jury acquitted Taylor of murder and attempted murder but convicted 

him of robbery. He is not involved in this appeal.
3

Richardson and Taylor smoked some marijuana. Richardson saw that Taylor had 

a gun, but that did not surprise him because Taylor often carried a gun.

Defendant came out of the bathroom and asked Taylor whether he had 

gotten “what he came for.” Defendant then shot Richardson in the abdomen, 

causing him to “fl[y] back on the couch.” Richardson saw defendant point a

smoking gun at him. Wilson started screaming, and defendant shot her twice. 

Richardson heard a total of three shots.

Richardson pretended to be dead because he feared he might be shot again. 

But he was able to perceive Taylor taking items from the house. He heard activity 

in the back bedroom and the baby crying. Later, Richardson heard activity outside 

and was able to observe Taylor and what appeared to be another person rolling out 

two safes. Defendant was still pointing the gun in the den.

At one point, Richardson heard Taylor tell defendant, “ „Make sure they 

dead.‟ ” Defendant responded, “ „Oh, yeah. They dead.‟ ” About three to five 

minutes after the first shot, Taylor and defendant left. Richardson heard a car 

driving away. He immediately called 911 on his cellphone and told the dispatcher 

he had been shot. Police and other responders were dispatched at 1:08 a.m., 

December 13, 2000, and arrived within minutes.

Wilson was dead at the scene, having been shot twice through the chest. 

Richardson was shot once in the abdomen. He required emergency medical care, 

multiple surgeries, and a lengthy hospital stay to save his life. As of the time of 

trial, the bullet was still embedded in him, and he was paralyzed below the waist.

Police officers testified that the house appeared ransacked when they 

entered it. The baby was crying in the bedroom. Three .45-caliber Speer shell 

casings were found on the floor and two spent bullets were found under Wilson‟s

body. Criminalists testified that the three casings came from the same gun. The 

two bullets had also been fired from the same gun, possibly a .45-caliber handgun.
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Richardson testified that about $27,000 and four pounds of marijuana were 

taken from his home. Originally he had told the police about $20,000 had been 

taken, and he did not mention the marijuana. He did not want to admit to 

possessing the marijuana.

Richardson, who was in considerable pain at the time, told the original 

dispatcher that Taylor had shot him, although he also told her that defendant was 

present. He testified that at the time he was primarily interested in getting help for 

himself and Wilson, and he felt betrayed by Taylor. He believed that, but for 

Taylor, defendant would never have come to his house. He explained, “The 

reason I kept saying LaTroy was because I felt like he shot me . . . , because I 

trusted him. . . . [W]hen I woke up, I was still saying LaTroy because it was . . . 

just registered in my head that he was the one who set that up.” Detective David 

Anderson, who investigated the case, spoke with Richardson briefly on December 

19, 2000, in the hospital. At that time, Richardson said Taylor shot Wilson and 

defendant shot him. When Anderson next spoke with Richardson, on February 8, 

2001, Richardson said defendant shot both of them. At trial, Richardson testified 

positively that defendant was the one who shot both him and Wilson. He also 

testified that he never saw Taylor pull out his gun.

After the shooting, Taylor traveled to St. Louis, Missouri, where he was 

arrested. Defendant was arrested in Seattle, Washington.

3. Defense Evidence

Defendant and the codefendant, Taylor, each presented evidence attempting

to show that the other was the shooter.

a. Defendant’s Evidence

On October 1, 2000, the police confiscated a .45-caliber handgun, loaded 

with Speer ammunition, from Taylor‟s possession. A criminalist testified that a 
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gun of that caliber and with similar ammunition fired the shots in this case. The 

criminalist also testified that, due to gunpowder particles found on Wilson‟s tank 

top, at least one of the shots was fired from within a few feet of her. No 

gunpowder was found on Richardson‟s clothes, suggesting he was shot from 

farther away. The criminalist also testified about the direction of the shots and 

opined that the shooter was in the same room as the victims or in the entryway.

Stockton Police Officer Eric Gauthreaux testified that he arrived at the 

scene of the shooting at 1:08 a.m., on December 13, 2000. Richardson told him 

that “LaTroy” had shot him and Wilson. Richardson also said that “Angelo was 

with LaTroy.”

Tino Yarborough, defendant‟s nephew and a distant relative of Taylor‟s, 

testified that in the early morning hours of the night of the shooting, defendant 

came to his house. He let defendant inside, and defendant paced back and forth in 

Yarborough‟s bedroom. About 45 minutes to an hour later, Taylor arrived. He 

had a gun with a clip like a .45-caliber gun and a bag. Defendant went outside. A 

short time later, Yarborough saw defendant and Taylor “tussling” outside. 

Yarborough also saw money in Taylor‟s hand. He said that Taylor was trying to 

give defendant some money but defendant “hit the money out of his hand” and it 

fell to the ground. Defendant then went back into the house. Yarborough gave 

Taylor his cellphone and the keys to his car, and Taylor left.

Defendant testified. He said he was asleep the evening in question when 

Taylor called him on the telephone. Taylor said he wanted to speak with him 

about defendant‟s girlfriend. Taylor had called her a “bitch,” and he indicated he 

wanted to discuss the situation with defendant. Defendant agreed to see him, and 

Taylor came to his house. Defendant got in the car and, with Taylor driving, they 

left. Eventually, they drove to Richardson‟s house. Defendant did not know 

where Richardson lived and was unaware it was his house. They entered the 
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house, with Taylor saying he wanted some marijuana. Richardson hugged 

defendant and called him “uncle.”

Defendant asked to use the bathroom. While in the bathroom, he heard 

four to five gunshots. He opened the bathroom door and saw Taylor holding a 

pistol. He asked what was going on and ran out the door. He was “in shock and 

little bit [of] fear.” He ran down the street, but then he returned, grabbed Taylor 

by the collar, and “slammed him” to the ground. He asked Taylor why he did 

these things. Taylor said, “They both dead.” Defendant responded, “Who‟s both 

dead?” He punched Taylor and then asked him to take him home. They then 

drove away.

While driving, Taylor said it would be “all right” and offered to give 

defendant money. Defendant said he did not want any money. At his request, 

Taylor drove him to his sister‟s home, where Tino Yarborough lived. He “cussed” 

Taylor and hit him again. Then Taylor left. Later Taylor returned to 

Yarborough‟s house. Defendant went outside to “kick his ass.” Taylor again 

offered defendant money. Saying he did not want any, defendant slapped the

money out of Taylor‟s hand and onto the ground. Eventually, Taylor left.

Defendant stayed in Stockton for several days, then went to Seattle, where 

he was arrested. He had previously intended to go to Seattle. He testified that he 

did not report the incident to the police because Taylor‟s “Sutter Street gang 

members” had threatened him.

b. Taylor’s Evidence

Taylor called as a witness Larry Rhodes, who had known defendant for 

about 40 years. On May 17, 2001, Rhodes spoke with Detective Anderson, the 

police investigator in this case, at Deuel Vocational Institute, where Rhodes was 

an inmate. Rhodes told Anderson that defendant had told him, “ „Yeah, I shot his 
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black ass,‟ ” referring to Richardson. But Rhodes testified at trial that he had lied

to Detective Anderson, and defendant did not say that. (When he testified, 

defendant also denied making the statement.) Detective Anderson testified that 

Rhodes had wanted an early discharge from custody in return for his testimony, 

but Anderson refused to make any offer. Taylor‟s investigator testified that 

Rhodes had told him that if he, Rhodes, were called to testify, he would say that 

the statement was a lie.

B. Penalty Phase

1. Prosecution Evidence

Koi Wilson‟s mother and sister testified about her and her death‟s impact 

on them. Additionally, the prosecution presented evidence of defendant‟s other

violent crimes and felony convictions.

Christine P. and Yolanda D. testified about an incident in September 1980,

when they were around 18 years old, in which defendant and Howard Gaines, 

armed with a shotgun and a rifle, took them to a field and then to Yolanda‟s 

apartment. In the apartment, Gaines raped Yolanda. Defendant tried to rape 

Christine, thrusting the shotgun under her throat and threatening to kill her in the 

process. But she successfully resisted, at one point inducing herself to vomit to 

discourage defendant. Defendant later threatened to kill Christine and her family 

after he got out of prison if she told anybody about what he had done.

Shortly after this incident, on September 19, 1980, defendant and Gaines 

assaulted two other young girls, Lynette D. and Adela J. When Adela testified, 

she claimed not to remember much of what had occurred. Accordingly, portions 

of her previous testimony were read into the record as prior inconsistent 

statements. She had testified that she, Lynette, Gaines, and defendant, went to a 

house in Sacramento. There, defendant demanded that Adela convince Lynette to 
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have sex with Gaines, and said that she was to hit Lynette if necessary. Adela 

observed Gaines hit Lynette in the face. She heard defendant say “that if they 

didn‟t kill her [Lynette], they would go to the state penitentiary for beating her 

up.”

Defendant and Gaines then drove the girls to a cornfield. Defendant said 

they were going to kill Lynette. He had a knife, and he ordered Adela not to look 

or they would cut her throat. Gaines and defendant dragged Lynette, “crying and 

just screaming,” away from the car. After a while, defendant returned, and then 

Gaines put Lynette back in the car. They drove to a house in Conway, where 

defendant obtained a gun. Defendant said he was going to shoot Lynette. When 

Adela started crying and pleading, he also threatened to shoot her in the head if 

she “didn‟t shut up.” They drove to another location, where Gaines took Lynette 

out of the car. Defendant told Adela to “shut up . . . or I was going to get what she 

got.” Adela then saw Gaines shoot Lynette. Lynette grabbed her stomach and fell 

to the ground, where Gaines shot her “again and again.”

Lynette was shot once in the stomach and twice in the head, but she 

survived. She was in the hospital for 11 months, comatose much of that time. At 

the time of trial, some 23 years after the shooting, Lynette was in a “semi-coma,” 

required care 24 hours a day, and was paralyzed from the neck down.

For this incident, defendant was convicted of assault with intent to commit 

murder, assault with a deadly weapon, and dissuading a witness.

Loretta Beck testified that on November 18, 1988, she was in a relationship 

with defendant. At trial, she claimed not to remember what happened that day, so 

her previous statements to the police were admitted as prior inconsistent 

statements. She had told the police that defendant hit her in the face with his fist, 

took her into the house, continued to hit her in the face, and choked her with his 

hands. At trial, she denied that defendant had hit her.
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Raven Lee testified that on May 24, 1998, when defendant was her 

boyfriend, they quarreled. Defendant punched a hole in the wall of her house and, 

in the presence of her children, threatened to kill them all. He also grabbed her by 

the throat, inflicting visible marks.

In 1980, defendant was convicted of shooting into an inhabited dwelling. 

In 1992, he was convicted of grand theft from the person. In 1994, he was 

convicted of possession of cocaine.

2. Defense Evidence

Defendant‟s mother, two sisters, and a brother testified about his difficult 

childhood and good qualities. His daughter testified about her relationship with

him and her love for him. Gwen Taylor testified about the help and good advice 

she received from defendant when she very much needed it. She had lived with 

him for a while, although she could not remember which years.

Dr. Sammunkan Surulinathan, a psychiatrist, testified that defendant 

voluntarily came to see him on December 11, 2000, complaining of depression 

and hearing voices. Defendant said he had “paranoid delusions of being watched 

and followed.” He also said he liked to play with his nieces and nephews. Dr. 

Surulinathan prescribed Prozac for his depression, as well as an antipsychotic 

medication.

II. DISCUSSION

A. Prosecutor’s Use of Peremptory Challenges

During jury selection, defendants objected that the prosecutor exercised 

peremptory challenges against three African-American prospective jurors for 

reasons of group bias in violation of their state and federal constitutional rights. 

(See Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 

258.) The trial court found a prima facie case of discriminatory challenges but 
10

denied the motion after the prosecutor explained his reasons for the challenges. 

Defendant contends the court erred. We disagree.

1. Factual Background

The prosecutor exercised three of his first 19 peremptory challenges against 

the only three African-American prospective jurors who had become available for 

challenge. After the third challenge, both defendants objected. One of

defendant‟s attorneys noted that the most recent challenge was to “the third of 

three African-Americans who so far, out of the 90 or so people in the panels one 

and two, who have made it into the box. All three of the African-Americans have 

been struck.” The court found defendants had made a prima facie showing that 

the challenges were improper and required the prosecutor to state his reasons for 

the challenges.

The prosecutor began by explaining that during the time between receipt of 

the completed juror questionnaires and voir dire, he had filled out a form for each 

prospective juror and rated them on a scale of 1 to 10 as possible jurors. He stated 

that he never looked at the question on the questionnaires that indicated race. He 

noted that before the jury selection process began, he had filed a motion arguing

the questionnaires should not ask about the juror‟s race, but the court overruled the 

objection. He stated, “I pleaded with the Court through my motion not to have 

that question on there. I don‟t think it‟s relevant. . . . I don‟t care whether it‟s on 

there, so I paid no . . . mind to it.” He stated that therefore “my evaluation of a 

juror is completely race neutral before I walk in the court and see their faces.” He 

then stated his reasons for each of the three challenges at issue.

The prosecutor said that he had immediately rated the first of the three, 

D.W., “a no way, never will he ever sit on one of my juries.” He stated several 

reasons. He explained that D.W. had been court-martialed while in the Navy. His 
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brother-in-law was serving six years in state prison, which D.W. did not think was 

fair. D.W. “believes that police officers gather in the hallway to corroborate their 

false stories before they testify, believes that judges presume guilt before anybody 

testifies, had negative comments about the District Attorney, had negative 

comments about the Public Defender. He believed that people who sold drugs got 

what they deserved. He believed that the District Attorney would have an 

increased burden in the guilt phase.” The prosecutor gave specific examples from 

the questionnaire to support these statements. He added, “And then he said that he 

would not be able to follow the law in the penalty phase questions. And then he 

said he was afraid of jury retaliation on the juror. And then when he testified here, 

he gave some long-winded confusing stories which also indicated that he would 

not be a proper juror.”

The prosecutor stated he had originally rated the second juror in question, 

S.C., a 5 on a scale of 1 to 10, but after listening to her, “I rated her a no way will 

she ever sit on one of my juries.” He noted that she had been arrested for drugs 

and it was dismissed, and her brother and nephew were in state prison for robbery. 

“She doesn‟t read any newspapers or watch any news. I think it‟s important to 

have a juror who sits in a death penalty panel to be aware of his or her 

surroundings and their place in the community. A person who doesn‟t watch the 

news and doesn‟t read the newspaper has a limited view of their surroundings and 

has a limited connection with their community. She had absolutely no feelings on 

the death penalty. I would be requesting people to go in there and actually have 

feelings on the death penalty one way or the other. . . . I think when you don‟t 

have feelings about the death penalty — which I think is odd especially when 

you‟re 43 years old — that now is not the time to try to figure out where you 

stand, especially not when it‟s not one defendant but it‟s two defendants . . . . In 

addition, what knocked her from a five which is an extremely low score and 
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knocked her into the never going to be sitting on my jury list is her answers to 

[one of the defense attorneys] in which she was a witness in a 245 [assault]. And 

she said essentially that the police officers weren‟t telling the truth about what she 

said. And in this particular case there‟s going to be a lot of what the police officer 

said. In addition, her answers were — the way she delivered the answers were in a 

cavalier manner which indicates she was entirely bored with the system. . . . I 

need people who care. I need people who are going to see it the way through.”

The prosecutor stated that he had originally rated the third juror in question, 

M.J., a 4 because “one, he had no opinion about anything. This is a 58-year-old 

man who was in the Marines.” He gave specific examples about the lack of an 

opinion, then added, “And when I asked him . . . he gave exactly the same 

response he gave on the questionnaire, nothing. I can‟t have again a person 

deciding where they stand on the death penalty, where they stand on drug dealing, 

where they stand on rap artists, whether they can tell if somebody is telling the 

truth or not in the middle of my trial.”

The prosecutor described another factor that concerned him about M.J.: 

“The other thing . . . is the fact that he‟s killed before. And I‟ve only had one juror 

who said that before. And that was my last death penalty case. And that was a 

tank commander, and he had killed before. And he was the one juror who held the 

jury out the longest. And the reason he told me was because he had taken a life 

before, and now he‟s being put in the same position. And he hadn‟t realized it 

before he got on the jury, but that decision — because he had taken a life before, 

the decision to take a life again personally caused him great distress. So if [M.J.] 

was going to decide during the penalty phase where he stood on the issue of 

capital punishment and then in the background having taken at least one human 

life before — and he served in Vietnam from 1966 to 1968, and I assume he‟s 
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taken more than one life — then I think he would have grave reservations on 

whether he could impose the death penalty in this particular case.”

In arguing the matter, counsel for defendant noted that the prosecutor did 

not ask M.J. any questions about taking a life which, he argued, showed “bad 

faith.” The court responded by stating, “Actually he did.” When the attorney for 

codefendant Taylor said, “It was me,” the court replied, “Somebody did.”

Defendants also argued that the prosecutor had not challenged other allegedly 

similar non-African-American jurors. During this discussion, the court made clear 

that it had reviewed the relevant juror questionnaires. After the parties finished 

arguing the matter, the court denied the motion with an oral order.

The court began by stating that it had no “trouble” with the first two 

challenges, but it “had more of a problem with regard to [M.J.], and I was waiting

to hear what [the prosecutor] said with regard to [M.J.]. But I‟ll have to say that 

after listening to him, he has me convinced, actually.”

The court then discussed D.W., the first of the challenged jurors, and found

“a perfectly good reason for using a challenge, and I don‟t think its inconsistent 

with the other challenges here. It is true that he did go through a court-martial 

when he was in the military. He does have relatives in prison, and he did express 

in the questionnaire a very negative attitude towards courts and lawyers as far as 

that goes. And nobody has been able to show me where the DA has passed over 

people or at least has had plenty of opportunity and passed over people like that at 

this point.”

The court also discussed S.C., the second of the challenged jurors, and 

found her to be “an obvious exclusion situation because . . . I remember listening 

to her and seeing the way she said that the police tend to put words in your mouth 

or in her mouth anyway in regard to an incident that she observed. And it was 

obvious that she felt that the police are not to be trusted. She also has relatives in 
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state prison for felonies. And it is true that her comment about never watching any 

news whether it be in the newspaper or on TV is probably a good reason for 

excluding anybody.”

The court then returned to the prosecutor‟s challenge to M.J., the one it was 

initially concerned about. The court said this prospective juror “was an absolutely 

neutral juror with regard to his questionnaire, and for that reason I really did have 

some question about his exclusion. However, it is true that probably a person who 

expresses no opinion whatsoever — and it is correct that his entire questionnaire 

he just kept writing over and over again no opinion. He just checked off boxes 

without ever writing anything down, which probably other people have done as 

well. But he really did leave an absolute blank page with regard to opinions.

“However, that is not the most important thing. And I have to say this is 

the first time I‟ve heard this one, and it does have a certain ring of logic to it with 

regard to the fact he has taken human life before in combat. And . . . if somebody 

can show me the DA has passed over somebody else who has done that, I might be 

more convinced. But I do see the logic in why it may be a problem. Especially if 

that has been a problem before, I can kind of see why somebody that might have 

done that and then expresses no opinion — I can see it if the person had been in 

combat before and then made some comment about how they‟ve adjusted to it, it 

might be different. But it is true after doing that he indicates no opinions at all 

about the effect on him or his ability to make a decision with regard to death or 

life in this case. So I have to say that that does tend to convince me. I think that 

that shows it is a nonprejudicial and neutral basis for exercising a challenge.”

The court found all three challenges to be nondiscriminatory and, for that 

reason, denied the motion.
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2. Applicable Legal Principles

The United States and California Constitutions prohibit exercising 

peremptory challenges based on race. When a defendant alleges discriminatory 

use of peremptory challenges, the defendant must first make a prima facie 

showing of impermissible challenges. If the trial court finds a prima facie case, 

the prosecutor must then state nondiscriminatory reasons for the challenges. At 

that point, the trial court must determine whether the reasons are credible and 

whether the defendant has shown purposeful discrimination under all of the 

relevant circumstances. The defendant has the ultimate burden of persuasion. 

(People v. O’Malley (2016) 62 Cal.4th 944, 974 (O’Malley).)

Here, the trial court found a prima facie case. In that situation, we must 

determine whether the trial court correctly ruled that the defense did not 

demonstrate discriminatory purpose at the third stage. The prosecutor‟s 

justification does not have to support a challenge for cause, and even a trivial

reason, if genuine and race neutral, is sufficient. The inquiry is focused on 

whether the proffered neutral reasons are subjectively genuine, not on how 

objectively reasonable they are. The reasons need only be sincere and 

nondiscriminatory. We review the trial court‟s determination with restraint, 

presume the prosecutor has exercised the challenges in a constitutional manner, 

and defer to the trial court‟s ability to distinguish genuine reasons from sham 

excuses. When the trial court makes a sincere and reasoned effort to evaluate the 

prosecutor‟s reasons, the reviewing court defers to its conclusions on appeal, and 

examines only whether substantial evidence supports them. (O’Malley, supra, 62 

Cal.4th at p. 975; People v. Lenix (2008) 44 Cal.4th 602, 613.)

At this stage, a defendant may engage in “comparative juror analysis”; that 

is, may compare the responses of the challenged jurors with those of similar 

unchallenged jurors who were not members of the challenged jurors‟ racial group. 
16

Such analysis is not necessarily dispositive, but it is one form of relevant 

circumstantial evidence. When comparative juror arguments are made for the first 

time on appeal, as to some extent in this case, the prosecutor was not asked to 

explain, and therefore generally did not explain, the reasons for not challenging 

other jurors. In that situation, the reviewing court must keep in mind that 

exploring the question at trial might have shown that the jurors were not really 

comparable. Accordingly, we consider such evidence in light of the deference due 

to the trial court‟s ultimate finding of no discriminatory purpose. (O’Malley, 

supra, 62 Cal.4th at pp. 975-976.)

3. Application to This Case

Defendant asserts that the trial court made “nothing more than a 

perfunctory review of the prosecutor‟s stated reasons,” and that, for this reason, 

the court‟s findings are not entitled to deference. The record is to the contrary. 

The court considered the prosecutor‟s reasons very carefully and made a sincere 

and reasoned effort to evaluate them. Accordingly, we defer to its conclusions. 

(People v. Williams (2013) 58 Cal.4th 197, 281.)

Defendant also argues the court erred as to all three prospective jurors at 

issue when it found genuine, race-neutral reasons for the challenges. He stresses 

that the prosecutor challenged African-Americans at a rate far higher than their 

percentage in the overall jury pool; indeed, he challenged all three AfricanAmerican jurors who were available for challenge. These circumstances certainly 

justify the trial court‟s finding of a prima facie case. They also warrant close 

scrutiny of the prosecutor‟s proffered reasons, which the trial court undertook, and 

which we now review.
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a. D.W.

D.W. stated on the jury questionnaire that he had been court-martialed

while in the Navy. He stated that his brother-in-law was serving six years “in 

jail,” and he believed the criminal justice system had treated him unfairly. 

Regarding criminal defense attorneys, he said, “If you know (gut feeling) if your 

client is guilty it seems they‟re in it for the money.” Regarding prosecutors, he

said, “No need to badger or confuse witnesses just move on.” Regarding judges, 

he said, “I‟ve seen two judges in action and one seems as if you are guilty before 

sentenced.” Regarding police, he said they “[t]alk in groups before court to get 

each other on track.” He stated he believed that anyone involved in marijuana 

sales “gets what they deserve.” Among his answers to penalty phase questions, he 

said he could not set aside his personal feelings regarding what the law ought to be 

and follow the law as the court explained it, “because I may have saw or felt 

something no one hasn‟t seen.” He said that in a death case, he would raise the 

prosecution‟s burden of proof to a standard other than reasonable doubt. He also

expressed concern about retaliation against a juror.

During voir dire, regarding whether he thought police officers were less 

truthful than others, D.W. said: “Well, I mean, I haven‟t been on jury duty. And 

I‟ve seen just like real cases on TV basically, so I‟m like watching TV. And I‟ve

seen like basically three incidents where police officers that show taped — they 

didn‟t show what the police officers did, but they wound up lying on the stand. So 

they‟re trying to like putting their facts together, you know, so you know what 

they‟re going to say. So that‟s what I‟ve seen.” He added that he did not mean 

that every police officer did that. Regarding his concern about retaliation, he said, 

“I‟m not really scared. I just — I don‟t really want to be in a situation where 

things happen.” He also told some stories that could be described as long-winded 

and confused.
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Contrary to defendant‟s arguments, this record supports the reasons the 

prosecutor gave for his challenge, and they are race neutral.

Defendant argues that the fact D.W. had a brother-in-law in state prison is 

not race neutral because more African-Americans have relatives in prison than 

members of other groups. He cites Hernandez v. New York (1991) 500 U.S. 352

(Hernandez). There, the group at issue was Latinos. (Id. at p. 355.) One reason 

the prosecutor gave for two of the challenges was that the prospective jurors were 

bilingual and, based on their responses and demeanor, he was concerned that they

might have difficulty listening to and following the interpreter. (Id. at p. 356-357.) 

The defendant argued that this reason was not race neutral because many Latinos 

speak Spanish.

No opinion in Hernandez garnered majority support.2 The plurality 

opinion found the prosecutor‟s reason to be race neutral. “A neutral explanation in 

the context of our analysis here means an explanation based on something other 

than the race of the juror. . . . Unless a discriminatory intent is inherent in the 

prosecutor‟s explanation, the reason offered will be deemed race neutral.” 

(Hernandez, supra, 500 U.S. at p. 360.) The plurality explained that the defendant

argued “that Spanish-language ability bears a close relation to ethnicity, and that, 

as a consequence, it violates the Equal Protection Clause to exercise a peremptory 

challenge on the ground that a Latino potential juror speaks Spanish. He points to 

the high correlation between Spanish-language ability and ethnicity in New York, 

 

2 Justice Kennedy authored the plurality opinion in Hernandez, supra, 500 

U.S. 352, speaking for four members of the court. Justice O‟Connor, speaking for 

herself and Justice Scalia, authored a concurring opinion. The concurring opinion 

agreed with the plurality that the prosecutor‟s reason was race neutral. (Id. at pp. 

372-375.) All further references to the Hernandez opinion will be to the plurality 

opinion.
19

where the case was tried.” (Ibid.) It said it “need not address that argument here, 

for the prosecutor did not rely on language ability without more, but explained that 

the specific responses and the demeanor of the two individuals during voir dire

caused him to doubt their ability to defer to the official translation of Spanishlanguage testimony.” (Ibid.)

“The prosecutor here offered a race-neutral basis for these peremptory 

strikes. As explained by the prosecutor, the challenges rested neither on the 

intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions 

about Latinos or bilinguals. The prosecutor‟s articulated basis for these challenges 

divided potential jurors into two classes: those whose conduct during voir dire

would persuade him they might have difficulty in accepting the translator‟s 

rendition of Spanish-language testimony and those potential jurors who gave no 

such reason for doubt. Each category would include both Latinos and nonLatinos. While the prosecution‟s criterion might well result in the 

disproportionate removal of prospective Latino jurors, that disproportionate 

impact does not turn the prosecutor‟s actions into a per se violation of the Equal 

Protection Clause.” (Hernandez, supra, 500 U.S. at p. 361.)

In language defendant cites, the plurality did find that a disparate impact 

would be relevant to the overall inquiry. “While the disproportionate impact on 

Latinos resulting from the prosecutor‟s criterion for excluding these jurors does 

not answer the race-neutrality inquiry, it does have relevance to the trial court‟s 

decision on this question. „[A]n invidious discriminatory purpose may often be 

inferred from the totality of the relevant facts, including the fact, if it is true, that 

the [classification] bears more heavily on one race than another.‟ [Citation.] If a 

prosecutor articulates a basis for a peremptory challenge that results in the 

disproportionate exclusion of members of a certain race, the trial judge may 

consider that fact as evidence that the prosecutor‟s stated reason constitutes a 
20

pretext for racial discrimination.” (Hernandez, supra, 500 U.S. at p. 363.) “The 

trial judge can consider these and other factors when deciding whether a 

prosecutor intended to discriminate.” (Id. at p. 364.) Ultimately, the plurality 

concluded that the “state courts came to the proper conclusion that the prosecutor 

offered a race-neutral basis for his exercise of peremptory challenges. The trial 

court did not commit clear error in choosing to believe the reasons given by the 

prosecutor.” (Id. at p. 372.)

Under Hernandez, supra, 500 U.S. 352, defendant‟s argument that more 

African-Americans have relatives in prison than members of other groups, even if 

factually correct, does not establish that the criterion is not race neutral. However,

as the Hernandez plurality explained, this circumstance is relevant to the inquiry 

as to whether the reasons were sincere and not merely pretextual.

Here, no reason appears for the trial court to find this reason was pretextual. 

The prosecutor did not excuse D.W. solely because he had a brother-in-law in 

prison, but also because he believed the criminal justice system had treated the 

brother-in-law unfairly. A “negative experience with law enforcement” is a valid 

basis for a peremptory challenge. (People v. Montes (2014) 58 Cal.4th 809, 855.) 

Moreover, the prosecutor cited many other race-neutral reasons for the challenges 

which the record supports and which the trial court credited. D.W. had been 

court-martialed in the Navy; he made critical comments about prosecutors, 

defense attorneys, and judges; he exhibited distrust of police; he said he could not 

follow the law as the court explained it; he said he would hold the prosecution to a 

higher standard than reasonable doubt. Each of these factors would justify the 

challenge. In combination, they do so strongly. (People v. Salcido (2008) 44 

Cal.4th 93, 140 [life experiences, including court-martial, justify challenge].)

Defendant engages in comparative juror analysis regarding D.W. But, 

given the many valid reasons the prosecutor gave for challenging D.W., none of 
21

the sitting jurors defendant cites were similar to D.W. for these purposes. “In 

order for a comparison to be probative, jurors need not be identical in all respects 

(Miller-El v. Dretke (2005) 545 U.S. 231, 247, fn. 6), but they must be materially 

similar in the respects significant to the prosecutor‟s stated basis for the 

challenge.” (People v. DeHoyos (2013) 57 Cal.4th 79, 107.) For example, 

defendant notes that some of the sitting jurors had relatives who were in prison or 

otherwise involved in the criminal justice system. But, unlike D.W., each of them 

had also stated the belief that the criminal justice system had treated the relatives 

fairly. D.W. said the opposite. These and other jurors defendant cites did not give 

overall responses remotely similar to the many responses the prosecutor cited for 

the challenge.

Defendant also argues the prosecutor did not question D.W. sufficiently for 

his reasons to be genuine. The prosecutor questioned him only briefly about his 

attitude towards someone who shoots a drug dealer. Although relevant, this factor 

is of little significance here, where the prosecutor had a detailed jury questionnaire 

to review and heard the attorneys for both defendants question D.W. at some 

length. (People v. Dement (2011) 53 Cal.4th 1, 20-21; People v. Taylor (2010) 48 

Cal.4th 574, 615-616.) “Under these circumstances, we place little weight on the 

prosecutor‟s failure to individually or more thoroughly question a prospective 

juror before exercising a peremptory challenge.” (Dement, at p. 21.)

b. S.C.

S.C. stated on the jury questionnaire that she had been arrested or charged 

for “drugs,” that the charge was dismissed, and that her brother and nephew were 

charged with and went to prison for robbery. She said she does not “read the 

paper or watch the news.” She generally had no opinions or feelings regarding the 

death penalty.
22

During voir dire, she said that on one occasion she had to testify about a 

crime she had witnessed. She said the experience was “all right,” but she added, 

“I just didn‟t like the fact that the officers put words into your mouth, you know, 

that you didn‟t say.” On further questioning, she confirmed that the officers “put 

words into [her] mouth.” She said the officer‟s statement was “totally different” 

than her testimony. She added that the experience had not left her with a distrust 

of police or the criminal justice system. In response to questions from the 

prosecutor, she reiterated that she had no feelings about the death penalty, and that 

she did not “read the paper” or “go on the Internet.” She did not like the news.

Contrary to defendant‟s arguments, this record also supports the reasons the 

prosecutor gave for his challenge, and they are race neutral.

The trial court found S.C. to be “an obvious exclusion situation,” primarily 

because of her statements about the police putting words into her mouth. It found

it “obvious that she felt that the police are not to be trusted.” Defendant quarrels 

with the court‟s finding on various grounds and notes S.C.‟s statement that the 

experience did not make her distrust the police. But the court was present and 

observed her demeanor, which this court cannot do. “In assessing credibility, the 

court draws upon its contemporaneous observations of the voir dire.” (People v. 

Lenix, supra, 44 Cal.4th at p. 613.) As part of this assessment, it considers the 

prospective juror‟s demeanor. (Id. at p. 614.) Additionally, and especially in 

combination with this concern, the facts that she had once had drug charges that 

were dismissed, and had close relatives in prison for robbery, were valid grounds 

for the challenge. Unlike D.W., this prospective juror did not express the belief 

that her relatives had been treated unfairly, thus making defendant‟s argument 

somewhat stronger that this reason was pretextual. (See Hernandez, supra, 500 

U.S. at p. 363.) But, given the overall circumstances, this factor alone did not 

compel the court to find the reason a pretext. The prosecutor‟s concern that she 
23

never read newspapers or watched the news, which the court also credited, were 

also race neutral. We have no basis to overturn the trial court‟s finding.

Defendant makes comparative juror analysis arguments. But, again, none 

of the other jurors he cites were at all similar to S.C. None, for example, exhibited 

distrust of police to the extent the trial court found S.C. did.

c. M.J.

M.J. stated on the jury questionnaire that he had served as a Marine from 

1966-1968, had experienced combat, and had taken human life. He had no 

opinions on several matters. During voir dire, in response to questions from the 

attorney for codefendant Taylor, he said he had had to take a human life in combat 

in Vietnam, but that the experience would not make him hesitate to serve as a juror

in this case. In response to questions from the prosecutor, he reiterated that he had 

no opinions on the criminal justice system or the death penalty.

This record also supports the prosecutor‟s statement of reasons, and they 

are race neutral.

The trial court was initially concerned about this challenge because in some

ways M.J. appeared to be a fine juror for the prosecution. The main reason the 

court cited in finding the challenge nondiscriminatory was the prosecutor‟s 

concern about M.J.‟s having killed in Vietnam. The prosecutor explained that 

after a previous death penalty trial, a juror who had also killed before — and had 

“held the jury out the longest” — told him he had found it distressing to have to 

decide whether to take a life again. The juror had not realized this problem before 

he was on the jury. Because of this, the prosecutor was concerned that M.J. might 

similarly have difficulties imposing the death penalty. This explanation is unusual 

but credible. It is also race neutral. The court, who was able to observe the 
24

prosecutor‟s demeanor, believed the explanation. We have no basis to overturn 

the court‟s finding that the reason was genuine and nonpretextual.

Additionally, the prosecutor expressed concern that M.J. seemed to have no 

opinions. The trial court also credited this reason, noting that this juror “really did 

leave an absolute blank page with regard to opinions.” M.J.‟s lack of opinions, or 

refusal to express them, was a valid, race-neutral reason for striking him.

Defendant argues that the prosecutor did not question M.J. about his having 

killed before. But a party need not question a prospective juror about every factor 

that might cause concern before exercising a peremptory challenge. (People v. 

Dement, supra, 53 Cal.4th at p. 21.) Additionally, as the trial court noted when 

the defense made the same argument at trial, one attorney did question M.J. about 

it. The prosecutor was not required to accept M.J.‟s statement that his experience 

did not make him hesitate to serve as a juror in the case, especially since, as the 

prosecutor explained, the previous juror had not realized the problem until he was 

actually a deliberating juror. The prosecutor could reasonably believe that further 

questioning could not obviate his concern.

Defendant also engages in comparative juror analysis regarding M.J. He 

argues, for example, that some of the nonexcused jurors similarly expressed no 

opinions. But, as the trial court noted in rejecting the comparative juror analysis

argument at trial, “if somebody can show me the DA has passed over somebody 

else who” had killed in combat, it might have been more convinced. M.J. was 

unique in this regard among the prospective jurors. Again, no reason appears to 

overturn the trial court‟s ruling.

In short, substantial evidence supports the trial court‟s determination that 

the prosecutor‟s stated reasons as to each of the challenges were genuine and race 

neutral. (People v. Williams, supra, 58 Cal.4th at pp. 284-285.) The court 

properly denied the motion.
25

B. Exclusion of a Document

Before trial, defendant filed a written motion to admit into evidence a 

single piece of paper containing handwriting that had apparently been found in 

Taylor‟s jail cell, and that the prosecution had provided to defendant in discovery.

He contended that the handwriting was a rap song that Taylor had written “in 

which he claims to be the killer in this case.” Taylor filed a written objection to 

admitting the writing.

When the matter was heard, the court asked the prosecutor whether he 

intended to offer the document into evidence. He said not at the guilt phase, 

although possibly at the penalty phase. Later, the prosecutor stated he took no 

position on its admissibility. The court asked the parties whether there was any 

handwriting analysis or “anything tying it to anybody here.” Counsel for

defendant said no. But he noted that near the top of the paper was written, “L.T. 

AKA Papa,” which, because of the initials, he interpreted as referring to Taylor. 

He argued that some of the song‟s lyrics indicated that Taylor had shot the victims 

of this case.

Specifically, defendant‟s attorney argued that on the piece of paper, “he 

talks about he was just doing his job. He‟s a hit man. His duty was to kill for the 

mob. „That nigga from out south opened his mouth.‟ Mr. Richardson lives out 

south. „All in the family business.‟ That is dope dealing, which I think is the 

Richardson family business. „He lost his wife.‟ That is, Koi Wilson was killed. 

„Damn near his kid.‟ His child was almost taken away by CPS. That‟s a 

proceeding that has happened since that time. Then he goes back, goes on to talk 

about the things that they used to do together, going to clubs and so forth, 

describing his relationship with Ricky Richardson. He goes on later to indicate 

that he had to set up shop in a different coast. „The feds was on me.‟ He was 
26

dealing drugs in St. Louis, Missouri, when he was arrested for the crime in this 

case. And he was arrested by the FBI, which I think is the reference to the feds.”

The court asked counsel what words he believed indicated that Taylor, 

rather than defendant, actually pulled the trigger. Counsel referred to these words: 

“It‟s nothing personal I was just doing my job,” and “I am a hit man duty was to 

kill up the mob.” After further discussion regarding the words, the court 

expressed the view that it was “speculation,” and that “there‟s nothing that I‟ve 

seen that would indicate that that‟s true or that you can support that in any way.”

In objecting to admitting the document, Taylor‟s attorney argued that it

contained only song lyrics; that even if defendant‟s interpretation of the words was 

correct, there was no reason to believe the lyrics stated anything that had actually 

happened; that the paper was not authenticated; and that there was no basis to 

believe Taylor wrote it rather than someone else who then gave it to him.

The court excluded the document. It found no “foundational evidence to 

show at this point either that Mr. Taylor wrote this, number one, or, number two, 

that it actually is related to the facts of this case.” It believed there was not 

“enough things that fit here . . . . And without some further support to show that 

this is really related to this case in the sense that it is . . . an indirect confession, I 

don‟t think that it is probative enough to outweigh its prejudicial effect. It clearly 

has a very prejudicial effect in this sense, that the person writing this suggests that 

they‟re out killing people for the mob, and so forth. But . . . that‟s just pure 

speculation. And there just isn‟t a sufficient offer of proof in my view to justify 

admitting this. So, I think you need a lot more before that would be admissible.” 

In response to an inquiry from defendant‟s attorney, the court stated, “You can try 

again if you want to, but I just don‟t see any basis for it at this point.” Defendant 

did not raise the matter again.
27

Defendant contends the court erred in excluding the document. The 

Attorney General responds that the court acted within its discretion. Preliminarily, 

defendant argues that, because the prosecutor did not object to the document at 

trial or argue that it was not properly authenticated, and in fact left open the 

possibility of seeking its admission at the penalty phase, the prosecution has 

forfeited the right to make these arguments on appeal. We disagree. It is true that 

the prosecution did not itself object to the document‟s admission; it took no 

position on the dispute between the two defendants. Instead, Taylor objected, and 

the court ruled, as it had to. As defendant argues, in some circumstances, a party

might be estopped from changing positions in litigation to gain an advantage. (See 

generally New Hampshire v. Maine (2001) 532 U.S. 742, 749-750.) But the 

prosecution is not changing positions in order to gain an advantage; it remained 

neutral at trial. It may now defend the court‟s ruling in order to defend the 

judgment. Contrary to defendant‟s argument, doing so is not playing “fast and 

loose” with the courts.

Turning to the merits, we see no error. Only relevant evidence is 

admissible. (Evid. Code, § 350.) To be relevant, and thus admissible, a writing 

must be authenticated as being what it is claimed to be. (Evid. Code, §§ 1400, 

1401; People v. Lindberg (2008) 45 Cal.4th 1, 52-53.) “When the relevance of 

proffered evidence depends on the existence of a disputed material fact or facts, 

the proponent of that evidence bears the burden of establishing all preliminary 

facts pertinent to the question of relevance. (Evid. Code, § 403, subd. (a)(1); 

People v. Kaurish (1990) 52 Cal.3d 648, 693.) The disputed evidence is 

inadmissible unless the court finds evidence sufficient to sustain a finding that 

those pertinent preliminary facts exist. (Evid. Code, § 403.) The trial court is 

accorded broad discretion in determining the relevance of evidence.” (People v. 

Lucas (2014) 60 Cal.4th 153, 229.)
28

The court did not abuse its discretion. The piece of paper lacked

foundation in several respects. It appears undisputed that it was found in Taylor‟s 

jail cell, but no evidence was presented at trial — such as handwriting comparison 

testimony (see People v. Lucas, supra, 60 Cal.4th at p. 229) — that he wrote it. 

Despite the initials, it might not refer to Taylor at all. No evidence was presented 

that Taylor was also known as “Papa.” It is not certain that the words refer to this

case. The words also do not indicate that “L.T.” was the actual perpetrator rather 

than some other kind of participant in whatever events the words referred to. 

Moreover, it appears the words were merely rap lyrics. No reason appears to 

assume they relate actual events. As counsel for Taylor aptly noted in arguing the 

matter, if, hypothetically, a piece of paper were found in Don McLean‟s home 

containing the handwritten words, “Drove my Chevy to the levee but the levee 

was dry,” that would not mean that McLean personally drove a Chevrolet to a 

levee and discovered it lacked water.

Additionally, even if we assume the document had some marginal 

relevance, the court additionally acted within its discretion when it found that its 

prejudicial effect outweighed any probative value. (Evid. Code, § 352; People v. 

Linton (2013) 56 Cal.4th 1146, 1182-1183.) As the court noted, the document was 

prejudicial to Taylor when it suggested he was involved with the “mob.” No 

evidence exists that the crime of this case was gang related.

C. Admission of a Letter for a Nonhearsay Purpose

Tino Yarborough testified for defendant. On direct examination, he said 

that Taylor had threatened him. When asked to explain, he said, “I have a letter 

right here.” Defendant‟s attorney asked whether Taylor had given him the letter. 

He responded, “Yes. I‟m in the hole right now, and a trustee slid it under my 

door.” Taylor‟s attorney objected that the answer was nonresponsive, which the 
29

court sustained. Defendant‟s attorney asked the witness whether Taylor had 

personally said anything to him. He responded, “Not to me personally.” 

Defendant‟s attorney then asked, “Are you saying the only thing that‟s happened 

is somebody slid something under your cell door?” When Taylor‟s attorney 

objected, the court stated, “the question is whether Mr. Taylor said anything to you 

himself. And the answer I take it is no; is that correct?” The witness answered 

yes, and the questioning went on to other matters.

Later, outside the jury‟s presence, defendant‟s attorney said that he had 

already seen the note the witness referred to during his testimony. Stating that 

everyone should see it, the court directed the witness to produce the note, and the 

attorneys reviewed it. Taylor‟s attorney then argued that the “answer regarding 

the threat still stands. We‟ve now got a copy of this letter in which the only threat 

says, basically, I didn‟t do it and don‟t get up on the stand and lie, which is hardly 

a threat. . . . [T]he fact that that particular answer, that he received a threat from 

Mr. Taylor, still stands before the jury . . . leaves the jury with an improper 

impression.” She asked to be able to admit the note so the jury could see for itself 

that it did not contain a threat. Over defendant‟s objection, the court allowed the 

jury to hear the contents of the letter.

Accordingly, on cross-examination by Taylor‟s attorney, Yarborough 

identified the letter as the one from Taylor that he believed contained the threat. 

He cited language, “I‟ll feel sorry for you,” as being threatening. Then the 

prosecutor had the witness read the letter to the jury. The letter said that the 

witness‟s uncle, i.e., defendant, “did that” and was trying to blame Taylor. The 

letter concluded, “I love you little nigga, but don‟t go up there lying. If you do, 

I‟ll feel sorry for you little cousin. Real talk, love you little cuzzo.”

At defendant‟s request, and over Taylor‟s objection, the court agreed to 

give the jury a limiting instruction regarding the letter. It instructed, “Evidence of 
30

the contents of the letter produced in court by the witness Tino Yarborough was 

not admitted for the truth of the matters stated in the letter, but only on the 

question of the truthfulness of Mr. Yarborough‟s testimony that the letter did or 

did not contain a threat. Do not consider this evidence for any purpose except the 

limited purpose for which it was admitted.”

Defendant contends the court erred in permitting the jury to hear the 

contents of the letter. However, because his own witness testified about the 

supposed threat in the letter, the court properly allowed the jury to hear of the 

letter‟s contents so it could judge for itself whether it contained a threat.

Evidence Code section 356 provides: “Where part of [a] . . . writing is 

given in evidence by one party, the whole on the same subject may be inquired 

into by an adverse party; . . . and when a detached act, declaration, conversation, 

or writing is given in evidence, any other act, declaration, conversation, or writing 

which is necessary to make it understood may also be given in evidence.” “The 

purpose of this section is to prevent the use of selected aspects of a conversation, 

act, declaration, or writing, so as to create a misleading impression on the subjects 

addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.)

The witness, Yarborough, produced the letter that he claimed contained a 

threat. The letter said that defendant “did that” and was trying to blame Taylor, 

and it told Yarborough not to lie. Yarborough interpreted this language as a threat, 

but the jury was entitled to interpret it otherwise. In order to do so, it had to know 

what the letter said. Contrary to defendant‟s argument, the court did not have to 

admit only the portion of the letter exhorting Yarborough not to lie. That portion, 

standing alone, could not be fully understood without the earlier statement that 

defendant had done it and was trying to blame Taylor. Without knowing all of the 

letter‟s contents, the jury might have had a misleading impression of the subject. 
31

The entire letter was relevant to determining whether it contained the threat about 

which the witness testified.

The letter was not admitted for its truth but only as it bore on the witness‟s 

claim of a threat, and the court so instructed the jury. Because the witness claimed 

the letter contained a threat, whether it actually did so was relevant to his 

credibility. (See People v. Burgener (2003) 29 Cal.4th 833, 869.) “Inasmuch as 

the jury was promptly and correctly instructed as to the limited purpose of the 

evidence, we cannot say that the trial court abused its discretion under Evidence 

Code section 352 in allowing the testimony.” (Id. at p. 870.)

Citing Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda

(1965) 63 Cal.2d 518, defendant contends admitting the letter‟s contents violated 

his confrontation rights. However, he did not object on that basis at trial and thus 

may not make the claim on appeal. (People v. Pearson (2013) 56 Cal.4th 393, 

460.) The claim also lacks merit for two reasons. First, Evidence Code section 

356 “ „is founded on the equitable notion that a party who elects to introduce a part 

of a conversation is precluded from objecting on confrontation clause grounds to 

introduction by the opposing party of other parts of the conversation which are 

necessary to make the entirety of the conversation understood.‟ ” (People v. Vines

(2011) 51 Cal.4th 830, 862, quoting People v. Parrish (2007) 152 Cal.App.4th 

263, 272-273.) For this reason, nothing in the line of cases defendant cites 

“speaks to this situation.” (Vines, at p. 863.) Second, the contents of the letter 

were not offered for their truth but for the nonhearsay purpose of allowing the jury 

to determine whether they contained a threat. “[T]here are no confrontation clause 

restrictions on the introduction of out-of-court statements for nonhearsay

purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.)
32

D. Exclusion of Evidence of the Contents of a Letter by Defendant

Codefendant Taylor called as a witness inmate Larry Rhodes, who had told 

Detective Anderson that defendant had told him that he, defendant, had shot 

Richardson. At trial, Rhodes admitted telling the detective that but said he had 

lied. He also said that Detective Anderson had come to question him about a letter 

he had “supposedly” received from defendant but no longer possessed. He refused 

to give Detective Anderson the letter. Rhodes said nothing more about the letter.

Taylor called Detective Anderson to testify about Rhodes‟s statement. The 

direct examination and the prosecutor‟s cross-examination did not mention the 

letter. But defendant‟s attorney cross-examined him about it. Detective Anderson 

testified on defendant‟s cross-examination that when he interviewed Rhodes, 

Rhodes handed him a letter that he, Rhodes, said had come from defendant. The 

detective read the letter, but Rhodes refused to let him keep it.

Outside the jury‟s presence, defendant‟s attorney sought to have Detective 

Anderson testify about the letter‟s contents. As an offer of proof, he stated that, 

according to the detective‟s report, in the letter, defendant denied involvement in 

the shooting, although he admitted that he was present. Counsel argued that the 

letter was part of the same conversation in which Rhodes had said that defendant 

told him he shot Richardson. Finding the letter to be hearsay, the court refused to 

admit it.

Later, again outside the jury‟s presence, defendant sought to admit at least 

testimony that defendant did not admit shooting Richardson in the letter. He 

argued that “where it stands now . . . , [the] impression that the jury has is that the 

letter corroborates this statement Mr. Rhodes made, when in fact it doesn‟t. It 

says the exact opposite.” The prosecutor argued there was no implication that 

defendant admitted shooting Richardson in the letter. Taylor‟s counsel objected, 

arguing that “it‟s a backhanded way of trying to get in a self-serving declaration.” 
33

After further discussion, and partly due to concerns about authenticating the letter, 

the court denied the request. It found that such testimony would be more 

prejudicial than probative under Evidence Code section 352.

Defendant contends the court erred in not admitting evidence of the letter‟s 

contents. He argues this situation was similar to the situation regarding the letter 

that his witness, Yarborough, had produced and claimed contained a threat. He 

argues that if the letter Yarborough produced was admissible, so too was 

testimony about the contents of the letter Rhodes mentioned. But the two 

situations are different. The letter Rhodes mentioned was not part of the 

conversation in which, according to what Rhodes told Detective Anderson, 

defendant said he had shot Richardson. Citing the portion of Evidence Code 

section 356 that states that “when a detached act, declaration, conversation, or 

writing is given in evidence, any other act, declaration, conversation, or writing 

which is necessary to make it understood may also be given in evidence,” 

defendant argues the letter was necessary to understand the statement. We 

disagree. The letter was separate from the statement. Defendant‟s offer of proof 

did not show that anything in the letter was necessary, or helpful, to understand 

defendant‟s statement, if in fact he made it. Excluding evidence of the letter‟s 

contents did not create a misleading impression of the significance or meaning of 

that statement. Contrary to defendant‟s argument, the evidence was also not 

necessary to avoid a misleading impression of the conversation between Rhodes 

and Detective Anderson. Whatever was in that letter was inadmissible hearsay.

Defendant notes that Rhodes, whom codefendant Taylor called, mentioned 

the letter. But Rhodes said nothing suggesting what its contents might be. 

Nothing in Rhodes‟s brief mention of it opened the door to defendant‟s admitting 

the letter‟s contents. Defendant also argues that Detective Anderson‟s testimony 

created the misleading impression that the letter corroborated defendant‟s 
34

purported statement that he shot Richardson, when in fact it did the opposite. We 

see no such false impression. Indeed, the facts that Detective Anderson seemed 

uninterested in the letter, and only defendant‟s attorney questioned Rhodes about 

it, would, if anything, suggest to the jury that the letter‟s contents were favorable 

to defendant. In any event, any misleading impression was defendant‟s doing, as 

only he questioned Detective Anderson about the letter.

If defendant wished to present evidence that he denied shooting 

Richardson, he had to use evidence that is admissible under the Evidence Code, as 

he actually did when he testified that he did not shoot Richardson and denied 

telling Rhodes that he had shot him. The trial court acted within its discretion in 

not admitting evidence about the letter‟s contents.

E. The Codefendant’s Questioning Defendant About Gang Affiliation

When defendant testified, his attorney asked him why he had not reported 

the shooting to the police. He responded that, after the shooting, he “was 

threatened by Troy Taylor‟s Sutter Street gang members.” On cross-examination 

by the prosecutor, he reiterated that he was not afraid of Taylor but was afraid of 

“his Sutter Street gang friends.” On cross-examination by codefendant Taylor, he 

testified that he did not associate with the Sutter Street gang but knew them and 

their parents. He testified, “I knew they were gang members. They carry guns. I 

don‟t.”

Taylor‟s attorney then asked defendant, “Now, you knew they were gang 

members because you were a long-time member of the Black Guerrilla Family, 

right?” He responded, “About 20 some years ago, right.” Defendant objected to 

the testimony, which the court overruled. Taylor‟s attorney then asked, “You 

were a gang member at one point, but you weren‟t any longer, so that‟s why you 

were scared of those kids?” Defendant responded, “That‟s not the reason why I 
35

was scared of them. I was scared of them because of what they told me.” 

Defendant‟s testimony then went onto other areas, and the matter of defendant‟s 

gang membership was never again mentioned.

Defendant contends the trial court erred in overruling his objection, and that 

the testimony about his former gang membership rendered the trial fundamentally 

unfair. We disagree.

Trial courts should carefully scrutinize evidence of a defendant‟s gang 

membership because such evidence “creates a risk the jury will improperly infer 

the defendant has a criminal disposition and is therefore guilty of the offense 

charged.” (People v. Carter (2003) 30 Cal.4th 1166, 1194.) We review the trial 

court‟s ruling for abuse of discretion. (Ibid.) Here, the prosecution presented no 

evidence of gang membership, and the case contained none at all until defendant 

himself branded Taylor a gang member. Once defendant interjected Taylor‟s 

alleged gang membership, the court had discretion to permit this brief questioning 

by Taylor to present a more balanced picture and to aid the jury in evaluating 

defendant‟s claim that he was afraid of Taylor‟s gang. (See People v. Jordan 

(2003) 108 Cal.App.4th 349, 365-366 [defendant‟s interjection of gang issue 

opened door to evidence of his gang membership].)

Moreover, in this case, there was little danger of prejudice. The jury knew 

there was no evidence the charged offense was gang related. Taylor was the only 

one who elicited evidence of defendant‟s gang membership and only then in 

response to defendant‟s testimony about Taylor‟s membership. The sole disputed 

factual issue for the jury to resolve was whether defendant or Taylor had shot 

Richardson and Wilson. There were no other candidates. But the jury heard that 

both had been gang members — although defendant only many years earlier. 

Thus, it was unlikely the jury would rely on gang membership in resolving this 

dispute. We see no abuse of discretion and no prejudice.
36

F. Claims of Instructional Error

Defendant reiterates two claims of instructional error we have repeatedly 

rejected. Contrary to his contentions: (1) the trial court did not err in instructing 

the jury on first degree murder even though the information only charged murder 

under Penal Code section 187 without specifying the degree (People v. Jones

(2013) 57 Cal.4th 899, 967-969); and (2) the trial court need not instruct the jury it 

had to agree unanimously on a particular theory of first degree murder (id. at p. 

973).

G. Admission of Evidence of the Injuries One of Defendant’s Victims 

Suffered

During the penalty phase, the prosecution sought to bring into the 

courtroom Lynette D., the victim of the September 19, 1980, shooting, so the jury 

could see what defendant and his cohort, Gaines, had done to her. Due to her 

condition, she was incapable of testifying. When defendant objected, the court 

refused to allow Lynette herself to appear but, over defendant‟s further objection, 

it allowed the prosecution to present evidence of the injuries she had suffered.

Lynette‟s mother testified about how she and her husband had learned of 

Lynette‟s shooting and about her injuries. Lynette had been in a hospital for 11 

months, was a semi-comatose quadriplegic at the time of trial, and required 

intensive care 24 hours a day, including ventilator treatments every hour for a 

respiratory problem. At one point, the mother testified that her husband had had a 

“nervous breakdown through all this” and could not cope. The court sustained 

defendant‟s objection to this testimony on relevance grounds and instructed the 

jury “to consider only the young lady‟s present condition.”

Defendant contends the court erred in permitting the prosecution to present 

evidence of Lynette‟s injuries. It did not err. At a penalty phase, evidence of the 

defendant‟s other crimes of violence is admissible under Penal Code section 
37

190.3, factor (b). Such evidence may include the impact of the crime on the 

victim, including the injuries suffered. Indeed, although the court did not allow 

such evidence in this case, we have held that such evidence may include the 

impact of the crime on the victim‟s friends and family. (People v. Johnson (2016) 

62 Cal.4th 600, 643-650; see id. at pp. 660-661 (conc. opn., of Cuéllar, J.)

[agreeing that evidence of the injuries the victim suffered is admissible while 

arguing that evidence of the impact on the family and friends is inadmissible].) 

The court acted within its discretion when it did not allow the prosecution to 

present Lynette to the jury but allowed her mother to testify about her injuries.

H. Admission of Evidence of Defendant’s Parole History

During the penalty phase, over defendant‟s objection, the court admitted 

into evidence a prison packet that proved his convictions for assault with intent to 

commit murder, assault with a deadly weapon, and dissuading a witness. The 

packet also contained a “chronological history” with handwritten notations of 

defendant‟s prison history from May 12, 1981 to February 8, 1991. The latter 

included information about his release on parole and subsequent arrest or

revocation of parole on certain occasions.

When defendant objected, the court noted that the packet showed “the 

history of his incarceration,” but it stated it did not “see anything particularly 

prejudicial in it.” The prosecutor contended that the time defendant was in prison 

was relevant in light of Gwen Taylor‟s testimony. He argued that Taylor “seemed 

to indicate that she did not want to get Mr. Melendez in further trouble by 

testifying that he had a sexual or romantic relationship with her . . . during her 

minority, which would have been 1977 to 1981. Which means that any type of 

relationship that she had with him had to occur [in] 1981 and subsequent to that 

point. Unfortunately though, . . . she knew and that‟s why she said she couldn‟t 
38

remember. She knew that Mr. Melendez was incarcerated during that period of 

time. So she couldn‟t have had that type of relationship until he was released 

from prison on the Lynette [D.] shooting. So more likely than not, any sexual or 

romantic relationship that she had with him was when Mr. Melendez was an adult, 

21 years of age or around that period of time, and she was between the ages [of] 

14 and 18.”

The court asked about the significance of this. The prosecutor responded 

that the significance was “the willingness of individuals, one, to essentially lie for 

Mr. Melendez just to shape their testimony to help him . . . . But now this person 

is willing to do it. And it also goes to — I mean, it seems to be a pattern that Mr. 

Melendez preyed on underage girls during this period of time.” The court 

interjected that the latter point was not admissible at the penalty phase. It stated 

that “the only thing it‟s really relevant to is admissible to her credibility certainly. 

So it is significant in that regard.” It found nothing prejudicial in the records 

“because everybody knows that the defendant was in prison. And there‟s nothing 

in these records that . . . in any way reflects badly on him, so I don‟t see any 

prejudice to it.” It admitted the packet on that basis, finding that it “does create 

some reasonable evidentiary inferences.”

Defendant contends the court erred in permitting the jury to see that portion 

of the packet that provided the parole information. He argues that, contrary to 

what the court stated, it did contain information that reflected badly on him, 

namely, a few entries indicating rearrests and parole revocations. But these were 

just summary handwritten notations that would be of little meaning to the jurors 

and that contained no information about why he was arrested or why his parole 

was revoked. None of that history was mentioned in any of the arguments to the 

jury. The history of defendant‟s incarceration was relevant for the reason the court 

identified, and any prejudice was minimal. We see no abuse of discretion in 
39

admitting the entire document and no prejudice in light of the case as a whole. 

(People v. Martinez (2003) 31 Cal.4th 673, 695-696.)

I. Failure to Conduct a Hearing on the Admissibility of Other Crimes 

Evidence

At the outset of the penalty phase, defendant‟s attorney requested an offer 

of proof regarding any of the other crimes the prosecution sought to prove for 

which there was no conviction. He explained that the prosecution had to prove the

crimes beyond a reasonable doubt and that “there‟s a problem of prejudice there if 

you get halfway through it.” He was concerned that a witness might not want to 

testify, and the prosecution might not be able to prove its case. The court denied 

the request.

The prosecution called a witness who testified that she had been shot in 

1978 and lost her leg. But the witness did not identify anyone as the gunman. The 

prosecution presented no other evidence about this incident. Later, outside of the 

jury‟s presence, the court asked about the relevance of this testimony. The 

prosecutor explained that defendant had been convicted of a misdemeanor arising 

out of this incident, and that he thought the witness would identify defendant. 

(Only felony convictions are admissible in aggravation under Pen. Code § 190.3, 

factor (c).) He also explained that he had tried but failed to obtain the testimony 

of another witness who could identify defendant. He agreed that he had not 

proven the crime. Defendant requested the court to admonish the jury not to 

consider the evidence, and the court agreed to do so. The court also found that the 

evidence had been offered in good faith.

The court admonished the jury “that there was a witness that was offered in 

the penalty phase at the very beginning of the penalty phase. You may recall Rita 

Moppins-Brown. She was the lady that testified she had lost her leg and had an 

artificial leg. The court has granted a motion to strike that — all that testimony, 
40

that witness‟s testimony. So I‟m going to admonish you to disregard all the 

testimony of Rita Moppins-Brown. Tear it out of you notes, pretend it never 

existed. You may not consider that testimony in making your decision in this 

phase of the case, so that — that testimony is stricken from the record.” When it 

instructed the jury at the end of the penalty phase, the court reiterated that, “as you 

recall, I specifically instructed you to disregard the evidence relating to the 

testimony of Rita Moppins-Brown as the court has excluded that evidence.”

In People v. Phillips (1985) 41 Cal.3d 29, 72, footnote 25, a plurality of this 

court stated that “in many cases it may be advisable for the trial court to conduct a 

preliminary inquiry before the penalty phase to determine whether there is 

substantial evidence to prove each element of the other criminal activity.” 

Defendant contends the court erred in not holding such a hearing in this case.

Preliminarily, the Attorney General contends defendant has forfeited the 

claim because he requested only an offer of proof rather than a hearing under 

Phillips, supra, 41 Cal.3d 29. We disagree. Defendant did not specifically cite 

Phillips, but he did not have to do so. His request came with an explanation that 

he was trying to avoid the problem Phillips addressed. That was sufficient to 

preserve the contention.

On the merits, we see no error and no prejudice. In People v. Phillips, 

supra, 41 Cal.3d 29, we did not require a preliminary inquiry. “Nor did we 

predicate the admission of evidence of unadjudicated criminal conduct on the 

outcome of such an inquiry. [Citation.] Therefore, the trial court did not err in 

denying his request to conduct a Phillips hearing.” (People v. Young (2005) 34 

Cal.4th 1149, 1209.) Although the problem Phillips was concerned about actually

occurred in this case, that circumstance did not make the earlier ruling erroneous. 

Indeed, an offer of proof of the kind defendant requested might not have 
41

uncovered the problem that later occurred. Although we once again reiterate that 

holding such a hearing may be advisable, we see no error in this case.

Defendant also suffered no prejudice. On two occasions, the court firmly 

instructed the jury to disregard the testimony, and we presume the jury did so. 

(People v. Ervine (2009) 47 Cal.4th 745, 776.) Defendant argues the court should 

have given a stronger admonition. But he did not request one at trial, and we 

believe the actual one was sufficient.

What occurred here was unfortunate, but it is the sort of event that 

sometimes happens in a trial. As the Attorney General notes, “Trials are dynamic 

processes and not every aspect is predictable or perfectly orchestrated.” Witnesses 

sometimes blurt things out or, as here, testify in unanticipated ways. We have to 

trust the trial court to take corrective measures when necessary, as the court here 

did, and the jury to follow the court‟s instructions. It would be easy for the jury to 

understand that no evidence was ever introduced to show that defendant was 

responsible for the witness‟s injury, and therefore it had to disregard her 

testimony. We have no basis even to speculate that the jury based its verdict on 

the stricken testimony rather than the evidence it properly heard.

J. Cumulative prejudice

Defendant contends the cumulative effect of the errors he asserts was 

prejudicial. However, we have found no error to cumulate. Any assumed error 

was also harmless, even accumulated.

K. Other Contentions

Defendant reiterates many challenges to California‟s death penalty law that 

we have repeatedly rejected. We see no reason to reconsider our previous 

holdings.
42

Penal Code section 190.2 is not impermissibly broad, and Penal Code 

section 190.3, factor (a), does not make the death penalty arbitrary or capricious. 

Jurors do not have to find aggravating factors true beyond a reasonable doubt 

except for other crimes and prior convictions. The court does not have to instruct 

the jury on burden of proof. Except for the verdict itself, the jury does not have to 

achieve unanimity, and it does not have to make written findings. (People v. 

Cordova (2015) 62 Cal.4th 104, 150.) Use of the words “so substantial” and 

“warrants” rather than other words does not render the standard instructions 

invalid. (People v. Contreras (2013) 58 Cal.4th 123, 169-170.) The court did not 

improperly fail to inform the jury that it must return a verdict of life without the 

possibility of parole if the mitigating circumstances outweigh the aggravating 

circumstances, and the court need not instruct the jury on a presumption of life. 

(People v. Johnson (2015) 60 Cal.4th 966, 997.) Penal Code section 190.3‟s use 

of the adjectives “extreme” and “substantial” to describe some of the mitigating 

factors does not limit the jury‟s consideration of factors in mitigation. (Cordova, 

at p. 150.) The trial court did not have to delete inapplicable sentencing factors or 

instruct that mitigating factors were relevant solely in mitigation. (People v. 

Rountree (2013) 56 Cal.4th 823, 863.) Intercase proportionality review is not 

required. California‟s differing treatment of capital and noncapital defendants 

does not violate equal protection, and use of the death penalty does not violate 

international law. (Cordova, at p. 150.)
43

III. CONCLUSION

We affirm the judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Melendez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S118384

Date Filed: December 8, 2016

__________________________________________________________________________________

Court: Superior

County: San Joaquin

Judge: Terrence Van Oss

__________________________________________________________________________________

Counsel:

Saor E. Stetler, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Sean McCoy and 

A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Saor E. Stetler

P.O. Box 2189

Mill Valley, CA 94942-2189

(415) 388-8924

A. Kay Lauterbach

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 327-7876