1

Filed 6/13/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S073597

v. )

)

JUAN MANUEL LOPEZ, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. PA023649

____________________________________)

An information filed in February 1997 charged defendant Juan Manuel 

Lopez and his brother Ricardo Lopez with the April 1996 murder of Melinda 

Carmody (Pen. Code, § 187)1 and four other counts: kidnapping (§ 207, 

subd. (a)), assault by means of force likely to produce great bodily injury and/or 

with a deadly weapon (§ 245, subd. (a)(1)), first degree residential burglary 

(§ 459), and second degree burglary of a vehicle (§ 459). The information also 

alleged a special circumstance that the murder was committed for the purpose of 

preventing the victim‟s testimony in a criminal proceeding and that a principal was 

armed with a firearm in the commission of the offense. (§§ 190.2, subd. (a)(10), 

former 12022, subd. (a)(1), as amended by Stats. 1995, ch. 377, § 8, p. 1948.)2

 

1 Hereafter, undesignated statutory references are to the Penal Code.

2 Defendant was jointly tried before a single jury with his brother Ricardo 

who was the actual shooter. Ricardo was convicted of murder and the witnessmurder special circumstance was found true as to him. Because Ricardo was 

(footnote continued on next page)
2

A jury convicted defendant of murder and found true the special 

circumstance and weapon allegations. The jury also convicted defendant of all 

charged crimes except the vehicle burglary count, as to which it was unable to 

reach a decision. The jury then returned a verdict of death, which the trial court 

declined to modify. This appeal is automatic. (§ 1239, subd. (b).) We affirm the 

judgment.

I. FACTS

A. Guilt Phase

1. Prosecution evidence

In 1995, defendant was the leader of the Parthenia Street gang. In March 

1995, when she was 14 years old, Melinda “Mindy” Carmody was “jumped into” 

the Baby Locas — the female adjunct of defendant‟s gang.

3 One of the girls who 

initiated her into the gang was the leader of the Baby Locas, Sandra Ramirez, who 

became Mindy‟s friend. Mindy‟s gang moniker was “Crazy” and Ramirez‟s was 

“Shy Girl.” Shortly after she joined the gang, Mindy began a relationship with 

defendant. She eventually ran away from home and moved in with defendant‟s

family. In September 1995, Mindy returned home but continued her relationship 

with defendant. 

 

(footnote continued from previous page)

under the age of 18 at the time of the crime, the prosecution did not seek the death 

penalty against him and he was sentenced to life in prison without the possibility 

of parole. 

3 To join a gang, the novice gang member is set upon by several members of 

the gang and has to fight them off; this is called being “jumped in.” Mindy had to 

fight with three members of the Baby Locas in order to join the gang. 
3

Mindy broke up with defendant in February 1996. According to Mindy‟s 

preliminary hearing testimony, defendant called her at her mother‟s home on the 

morning of March 13, 1996, and asked if he could come by to pick up some 

papers. Mindy said no, because she was afraid of defendant. While they were still 

dating, defendant had told her that if she ever broke up with him, he would kill 

her. 

About an hour after he called, defendant entered Mindy‟s house through the 

garage. He asked her if she wanted to leave with him. When she said no, 

defendant approached her with a knife. He stabbed her with the knife in the back 

of the neck and she fell onto the couch. Defendant started choking her. While he 

was choking her, he told her that if he “can‟t have [her], no one can.” She fell off 

the couch and he released her, then he pulled her to her feet by her hair and forced 

her upstairs to her bedroom. Defendant put Mindy in her closet and grabbed a bag 

and told her to get some clothes because they were leaving. After packing the bag

he pulled her downstairs. Outside of the house, he placed her into the backseat of 

a waiting car. Another man Mindy had never seen before was in the driver‟s seat. 

Before they left, defendant told her to change her shirt because there was blood on 

it. 

At the preliminary hearing Mindy testified further that they drove first to 

defendant‟s house where Mindy waited in the car while defendant went inside to 

retrieve a bag. They then went to the house of defendant‟s aunt, Maria Hernandez,

and defendant left her there. Hernandez helped clean the back of Mindy‟s neck, 

which was bleeding, and she changed her shirt again. Mindy remained at 

Hernandez‟s house for four hours but was unable to communicate with her

because Hernandez spoke Spanish and Mindy did not. Eventually, Hernandez 

drove Mindy home. 
4

Later that same day, about 5:00 p.m., Los Angeles Police Officer Robert 

Denton responded to a call to Mindy‟s home. According to the officer, Mindy was 

upset and nervous and started crying while he was talking to her. He took her to 

the police station. Photographs taken at the station showed fingerprint bruising 

and scratch marks around Mindy‟s throat and a wound to the back of her neck that 

had been oozing blood since Officer Denton first saw it. 

Police arrested defendant on the night of the incident when, responding to a 

report of a car break-in at a condominium complex near where Mindy lived, they

found him in a dirt area beneath a balcony. Defendant told the arresting officers 

that he “didn‟t do anything,” but “was in the area to see his girlfriend.” He kept 

repeating that he “loved her too much.” 

Detective Morritt interrogated defendant. After waiving his Miranda rights 

(Miranda v. Arizona (1966) 384 U.S. 436), defendant told Morritt that Mindy had 

given him permission to come to her house to pick up some papers. Defendant 

said he took a bus to Mindy‟s house and, once there, they argued and he hit and 

choked her. Nonetheless, according to defendant, Mindy voluntarily went with 

him to his house. From there, a friend drove them to the home of defendant‟s 

aunt. 

Sometime after his arrest, defendant telephoned Sandra Ramirez, the leader 

of the Baby Locas, telling her that he had stabbed Mindy in the neck and 

kidnapped her. He also told her that he wanted to take Mindy to Mexico to marry 

her. 

Mindy testified against defendant at the preliminary hearing on the 

kidnapping and assault charges on March 28, 1996. According to Detective 

Morritt, Mindy appeared frightened and upset, and cried at times during her 

testimony. At one point during Mindy‟s testimony, defendant sat forward in his 

chair and said, “I don‟t have to sit here and listen to this shit.” 
5

Defendant called Ramirez on March 26 and March 27, 1996, from the cell 

area at the court where his preliminary hearing was held. In the first call, he again 

admitted to Ramirez that he had stabbed and kidnapped Mindy. He told Ramirez 

to tell Mindy not to go to court. In the second call, he asked Ramirez to come to 

court and pick up a letter that he had written to Mindy and deliver it to her. 

Defendant was held to answer on the kidnapping and assault charges on 

March 28, 1996. Defendant‟s sister, Patricia (Patty), told police that defendant 

called her during the first week of April and asked her to set up a three-way call 

with their brother, Ricardo, also known by his gang name “Diablo,” and Jorge 

Uribe, a gang member who was known as “Pelon.” Patty set up the call but did 

not listen to the conversation.4

On April 11, defendant again called Ramirez while she was talking to Alma 

Cruz, another member of the Baby Locas. Ramirez, Cruz, and defendant all spoke 

together on a three-way call. Defendant told them they had to go to a gang

meeting that was scheduled for the following night to discuss paying dues to the 

Mexican Mafia. They also talked about the girls‟ plan to jump in a new member, a 

girl called “Happy,” who was Mindy‟s friend. The plan was to jump Happy in at a 

park outside the gang‟s territory. Defendant insisted, however, that the girls jump 

her in at an alley claimed by the gang. Defendant explained that if Happy was 

jumped in at the park she would not be from the gang-controlled neighborhood. 

Ramirez did not believe it mattered where the new gang member was jumped in, 

 

4 After Ricardo was arrested he made a statement to police that was 

introduced into evidence against him at his joint trial with defendant after it had 

been redacted to omit any reference to defendant. Ricardo told police he and 

Uribe discussed killing Mindy before the murder and that Uribe gave him the gun 

he used. 
6

but because defendant was the gang leader she agreed. According to Cruz, 

defendant asked her “if [she] could kill one of [her] homegirls.” Cruz replied that 

it depended on whether “[the homegirl] would do something to me.” Defendant 

said, “I already have someone doing it for me.” 

Records showed that on April 10, the day before defendant‟s conversation 

with Ramirez and Cruz, there were a number of phone calls from defendant‟s 

cellblock in the jail to the Lopez residence where his brother Ricardo lived with 

their parents. On April 11, the same day defendant spoke to Ramirez and Cruz, 

calls were made from the superior court cell area at Van Nuys, where defendant 

was arraigned, again to the Lopez residence. Three calls were also made the 

following day, April 12, the day Mindy was killed, from where defendant was 

being held in custody, to the Lopez residence. 

On Friday, April 12, 1996, Baby Locas leader Ramirez drove various 

members of the gang, including Mindy, to an alley off Schoenborn Street to attend

the gang meeting and to initiate Happy into the Baby Locas. When they arrived,

the sole male gang members present were Ricardo and Uribe. According to 

Ramirez, Mindy seemed frightened by Ricardo‟s presence, but Ramirez told her 

not to worry because he “wasn‟t going to do nothing.” Ricardo was drinking beer,

as were other gang members including Mindy and Ramirez. Ricardo, Uribe, and 

other male gang members were on one side of the street and the females were on 

the opposite side. 

At some point, Ramirez went to talk to Ricardo, who was standing with

Uribe. Ricardo asked, “Why did you bring them?” and told her “[Y]ou know 

what‟s going to happen.” According to Ramirez, she did not know what he meant

by that, nor what he meant when he also told her that, “if anything happened, to 

say it was a drive by.” Ricardo then took a gun out of his waistband, pointed it at 
7

Ramirez and said he was going to shoot her. Ricardo put the gun away and 

Ramirez walked away. 

Uribe crossed the street and told Mindy that Ricardo wanted to talk to her. 

Mindy made a face as if she did not want to speak to him, but she went. Ramirez

noticed that Mindy was talking to Ricardo. She saw his gun at the side of his leg 

and then she heard Mindy scream, “Shy Girl, let‟s get out of here.” She looked 

and saw Mindy coming toward her quickly with Ricardo following her. He was 

pointing his gun at Mindy and then he started shooting. Ramirez heard 

approximately five shots. Mindy fell into the street. Ricardo walked up to her and 

shot her while she was on the ground. One of the girls present heard Ricardo say 

something about his brother. 

After Ricardo shot Mindy, he walked away with the gun to his own head. 

Ramirez and the other girls ran to Mindy and tried to move her, but 

ultimately left her at the scene because they were afraid to say anything to the 

police. The girls got into Ramirez‟s car and drove to a convenience store where 

one of them called 911. 

Meanwhile, Leticia Corona, who lived on Schoenborn Street, was returning 

home around 9:00 p.m. when she saw Mindy lying in the street. She and her sister

got out of the car to help. There was a pool of blood beneath Mindy‟s head but 

she was still alive. Although her eyes remained closed, she tried to lift herself off 

the road. Eventually, the paramedics arrived. The next morning Corona returned 

to the scene and found a smashed-up bullet near the gutter. She gave it to police

who later matched it to a gun taken from the Lopez residence. 

A Los Angeles firefighter-paramedic transported Mindy to a nearby 

hospital. He and the hospital chaplain testified that Mindy‟s pager had a message 

that read “187” and a phone number later identified as belonging to Mindy‟s 
8

mother. Mindy died at the hospital several hours after her arrival. The cause of 

death was multiple gunshot wounds. 

On April 13, 1996, the day after the shooting, defendant called Sandra 

Ramirez and asked, “What happened?” She told him that Ricardo had shot 

Mindy. Defendant asked Ramirez if she knew where Ricardo was and hung up 

after she told him she did not. Later that day, Ricardo called Ramirez and told her 

to say that Mindy‟s killing was a drive-by shooting. Defendant then called 

Ramirez a second time and asked if she had spoken to police. When she said no, 

he told her, “Don‟t say anything.” Ricardo then called Ramirez again, this time 

telling her to tell the “girls” to attend a meeting that night so they would know 

what to say about the shooting. According to Ramirez, when she told him she 

could not go, he told her that “if [she and other Baby Locas] didn‟t go [to the 

meeting], the same thing [as had happened to Mindy] was going to happen to us.” 

Phone and inmate locator records for that day show four calls were made to 

the Lopez residence from where defendant was being held in custody. 

Detective Oppelt interviewed defendant 12 days after the shooting. 

Defendant denied having anything to do with Mindy‟s death and said that he had 

learned of it only one week earlier when the lawyer representing him on the 

kidnapping and assault case mentioned it to him. He said he was both mad and 

sad at things Mindy testified to at the preliminary hearing. He also told the 

detective he was depressed about her death. Defendant volunteered that Mindy 

told him that she had been receiving the number 187 on her pager and that he had

assured her the message was not from anyone in his family. 

Defendant asserted that since his arrest on the assault and kidnapping 

charges he had not spoken to his brother Ricardo and he also denied having 

spoken to Jorge Uribe. He also initially claimed not to have spoken to Sandra 
9

Ramirez but then acknowledged that he had talked to her about jumping a girl into 

the gang. 

In January 1997, before the preliminary hearing in the present case, Sandra 

Ramirez‟s boyfriend received a letter from Ricardo sent from a jail facility. The 

letter instructed him to tell Ramirez “not to go to court or else” Ricardo would 

“have the homeboys take care of her.” 

2. Defense evidence

Defendant presented the testimony of his mother, aunt, and his aunt‟s 

husband. They each testified that they saw Mindy on the day she was allegedly 

kidnapped by defendant and that she did not appear to be frightened, nor was she 

injured. Defendant‟s mother testified further that defendant and Mindy wanted to 

go to Mexico to get married. His aunt testified that she talked them out of this 

plan. Defendant‟s uncle testified that he, not his wife, drove defendant and Mindy 

from his house to Mindy‟s neighborhood. He also testified that Mindy did not 

appear frightened or injured. 

In his defense, Ricardo introduced a portion of Ramon Ramos‟s 

preliminary hearing testimony after Ramos refused to testify. Ramos, whose gang 

moniker was “Oso,” testified that Ricardo was drinking beer before he shot Mindy 

and that after he shot her, he put the gun to his own head and clicked it. He also 

testified that after he took the gun from Ricardo, Ricardo said, “It‟s for my 

carnal,” meaning his brother, defendant. 

3. Prosecution rebuttal evidence

The prosecution presented Mindy‟s diary entry for the day of the assault in 

which she had written that “Bird [defendant] broke in and stabbed me and choked 

me and kidnapped me. Went to Police station, went to Grandma‟s.” She also told 

one of her schoolteachers about the incident. 
10

B. Penalty Phase Evidence

1. Prosecution evidence 

The prosecution presented evidence of defendant‟s violent acts while in 

custody. Sheriff‟s Deputies Romo and Perez testified that defendant had been 

injured in a fight with another inmate. After defendant had been treated in the jail 

infirmary, Perez prepared to use some handcuffs to transport him to the 

disciplinary building. Defendant said, “Fuck you, I ain‟t going to the hole,” and 

tried to elbow and punch Perez in the face. In the ensuing struggle, the deputy

suffered scratches, swelling and bruising. Several deputies eventually subdued

defendant. 

The prosecution also presented victim impact testimony from Mindy‟s 

stepmother, her grandmother, and her mother. Each testified that she had had a 

close relationship with Mindy and that Mindy‟s death had been devastating to her. 

2. Defense evidence

Defendant declined to present a penalty phase case. 

II. DISCUSSION

A. Jury Selection Issues

1. Limitation on voir dire

The juror questionnaire in this case included four questions that touched on 

racial or ethnic bias — defendant is Hispanic and Mindy was Caucasian —

including a question that asked prospective jurors whether they believed there was 

racial discrimination against Latinos in Southern California. (Question No. 86.) 

Prior to voir dire, the court indicated it would not ask followup questions of those 

jurors who did not respond to this question. Both defendants objected. On appeal, 

defendant contends the court abused its discretion by failing to ask such followup 

questions. We conclude otherwise. 
11

a. Background

At the time of defendant‟s trial, the trial court alone conducted voir dire. 

(See Code Civ. Proc., former § 223, added by Prop. 115, § 7, approved by the 

electorate effective June 6, 1990 [voir dire from counsel permitted only for “good 

cause”].) Nonetheless, prior to voir dire, the court and counsel collaborated on the 

juror questionnaire. 

Four questions on the questionnaire addressed the issue of racial or ethnic 

bias. Question No. 86 stated: “If you believe that there is racial discrimination 

against Latino/Mexican-Americans in Southern California, please describe the 

problem as you see it.” Question No. 82 informed prospective jurors that they 

were to use “the same standards (which will be given to you by the court) to judge 

all witnesses‟ credibility regardless of their occupation, lifestyle, race, ethnic 

background, language, sex, or sexual orientation. If you do not believe you can do 

this, or if you believe it would be difficult for you to do so, please set forth your 

thoughts about this.” Question No. 87 asked prospective jurors: “Have you ever 

been afraid of another person because of their race,” and, if so, “what was the 

circumstance?” Question No. 88 asked: “Are you a member of any private club, 

civic, professional or fraternal organization which limits its membership on the 

basis of race, ethnic origin, sex or religious convictions,” and, if so, “please 

identify the club(s) or organization(s).” 

Before the first group of prospective jurors entered the courtroom, the trial 

court made the following statement with respect to question No. 86: “I noticed in 

reading the questionnaires, as I‟m confident you did as well, that a number of 

people did not respond to the question about racial prejudice. I don‟t have any 

intention of following up on that question, ladies and gentlemen . . . . In some of 

those responses, some showed a great sensitivity to the question, others showed 

less than great sensitivity to the question. For other people it was apparently 
12

something they had a ready answer to, and that suggests perhaps something about 

them one way or the other as any person would choose to infer; but inasmuch as 

the non-Hispanic who is part of the information before the court goes, that is, the 

alleged victim, she is the only non-Hispanic, I believe, with respect to the charges 

themselves, and there does not seem to have been any kind of discriminatory 

prosecution here. I mean it‟s a simple and regular charging; and so if those people 

did not answer that, I do not intend to go over that subject matter.5” Ricardo‟s 

counsel objected “on behalf of my client, reserving any possible appeal rights, 

both on federal and state constitutional grounds.” Defendant‟s counsel joined “for 

the same purpose.”6 

b. Discussion

“At the time of trial in this matter, Code of Civil Procedure section 223,

enacted by Proposition 115 (approved by the electorate effective June 6, 1990), 

provided for court-conducted examination of prospective jurors in a criminal case, 

 

5 The trial court‟s comment about discriminatory prosecution is irrelevant to 

the issue of whether additional questions to question No. 86 were required to 

probe the issue of possible racial or ethnic bias on the part of the prospective 

jurors. 

6 The Attorney General contends this objection was insufficient to preserve 

the present claim on appeal because defense counsel failed to specify the precise 

state and federal constitutional grounds that were the basis of his objection. We 

disagree. In contrast to People v. Staten (2000) 24 Cal.4th 434, cited by the 

Attorney General, in which the defendant failed to request further questions 

regarding racial bias in addition to those on the questionnaire that defense counsel 

helped draft, defendant did object to the court‟s explicit decision not to ask 

followup racial bias questions. Moreover, although unspecified, the objection was 

on constitutional grounds. We conclude that the objection was sufficient to 

preserve the issue on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 436-

437.)
13

including death penalty cases, in the presence of the other jurors.” (People v. 

Avila (2006) 38 Cal.4th 491, 534.) “An appellate court applies the abuse of 

discretion standard of review to a trial court‟s conduct of the voir dire of 

prospective jurors.” (People v. Benavides (2005) 35 Cal.4th 69, 88.)

“Where the jury in its discretion is responsible for determining whether a 

defendant lives or dies, the need for juror impartiality is obviously most acute.” 

(People v. Williams (1989) 48 Cal.3d 1112, 1131, original italics.) Given the 

gravity of the stakes in a capital case, the United States Supreme Court has held 

that “a capital defendant accused of an interracial crime is entitled to have 

prospective jurors . . . questioned on the issue of racial bias.” (Turner v. Murray 

(1986) 476 U.S. 28, 36-37.) Mindful of these admonitions, we nonetheless 

conclude that the trial court did not abuse its discretion in this case by declining to

question prospective jurors who left blank question No. 86 regarding potential 

racial bias.

Unlike decisions cited by defendant, this is not a case in which prospective 

jurors were not questioned at all about potential racial bias. (See, e.g., Turner v. 

Murray, supra, 476 U.S. at pp. 36-37 [refusal of trial court to question prospective 

jurors about racial bias in capital case involving murder of Caucasian shopkeeper 

by African-American defendant]; Ham v. South Carolina (1973) 409 U.S. 524, 

526-527 [where defendant was a young African-American civil rights worker who 

asserted that his prosecution for drug possession was in retaliation for his civil 

rights activities, the trial court‟s refusal to ask questions about racial bias violated 

the 14th Amend.].) Here, the juror questionnaire clearly addressed the issue of 

potential bias with four questions, including question No. 86.

Defendant also cites People v. Holt (1997) 15 Cal.4th 619, in support of his 

claim. In Holt, we agreed that “adequate inquiry into possible racial bias is . . . 

essential in a case in which an African-American defendant is charged with 
14

commission of a capital crime against a White victim.” (Id. at p. 660.) However, 

we went on to observe: “Unless the voir dire by a court is so inadequate that the 

reviewing court can say that the resulting trial was fundamentally unfair, the 

manner in which voir dire is conducted is not a basis for reversal.” (Id. at p. 661.) 

We cannot so conclude in this case.

Here, four questions on the jury questionnaire addressed the issue of the 

prospective jurors‟ possible ethnic or racial bias. Question No. 86 inquired 

directly about the attitudes of prospective jurors on the issue of bias against 

Latinos in Southern California. As the trial court observed, the responses showed 

various levels of sensitivity on that issue, which presumably were useful to the 

parties during the selection process. Defendant claims, however, that the trial 

court should have questioned jurors who did not respond to that particular question 

because their silence may have masked bias against Hispanics. We disagree. 

Question No. 86 was constructed as an “if/then” question. Given that 

construction, a blank response indicated that the prospective juror did not believe 

that there existed racial discrimination against Latinos in Southern California. The

trial court did not abuse its discretion by declining to inquire about every blank 

response to ensure that this is what the prospective juror meant. Further, to the 

extent a prospective juror responded to the question, as the trial court observed, 

the answer would stand for itself and give the parties relevant information. 

(Indeed, even a blank response was informative of a prospective juror‟s attitude on 

the issue.) Thus, given that “the juror questionnaire gave the prospective jurors a 

clear opportunity to disclose views about racial bias that would warrant their 

excusal from the jury” (People v. Taylor (2010) 48 Cal.4th 574, 609), the trial 

court‟s decision not to follow up on a question that did not require an answer and, 

as to which, any answer would speak for itself, fell within the appropriate exercise 

of its discretion. 
15

Moreover, the remaining three questions that touched upon the issue of 

racial bias (questions Nos. 82, 87, and 88) were, unlike question No. 86, 

constructed in a manner that required a response from the prospective jurors. 

Thus, prospective jurors were required to answer whether they could apply the 

same standards of credibility to all witnesses despite, among other characteristics, 

their ethnic background; whether they had ever been afraid of a person of a 

different race and, if so, under what circumstances; and, whether they belonged to 

any organization that excluded people from membership for, among other reasons, 

their race or ethnic origin. Therefore, whether or not prospective jurors answered 

question No. 86, their answers to these other questions would have provided the 

parties with some insight into their attitudes about race and ethnicity.

Indeed, and notwithstanding its earlier pronouncement, the trial court asked 

three prospective jurors followup questions based on their answers to these 

questions. At the request of Ricardo‟s attorney, the trial court asked Prospective 

Juror No. 1032 question No. 83 regarding witness credibility. The trial court 

repeated question No. 87 to Prospective Juror No. 7502 regarding whether the 

juror had ever been afraid of another person because of race and posed a number 

of followup questions. Among the questions the court asked was: “Obviously the 

defendants who are before the court are Hispanic . . . . Is there anything in the fact 

that they are Hispanic that would prejudice you against the defense before you 

know anything about the case at all?” When the prospective juror seemed to 

hesitate, the court pressed, “You‟re confident of that?” and “Will you reflect on 

that and if it‟s problematic please let me know?” In response to the court‟s 

inquiry, Prospective Juror No. 0886 indicated that the prospective juror‟s 

affirmative answer to question No. 88 was wrong. 
16

Defendant suggests the court‟s questions were inadequate because “[v]ery 

few jurors would answer these questions in such a way that they would admit to 

racial prejudice.” As we have seen, the record does not support this assertion.

In People v. Booker (2011) 51 Cal.4th 141, in which the defendant was 

African-American and his victims were not, the defendant claimed the trial court 

erred by failing to question prospective jurors about racial bias. We rejected the 

claim, observing that “other than the bare fact of the difference between the races 

of defendant and the victims, nothing about the circumstances of this crime 

suggests race played any role.” (Id. at p. 169.) The same is true here. (See also 

People v. Roldan (2005) 35 Cal.4th 646, 695 [“This was not a case in which racial 

prejudice was an obvious issue”].) In these circumstances, we find no abuse of 

discretion in the trial court‟s decision not to question prospective jurors who left 

blank question No. 86.7 

Although we find no abuse of discretion here, we take this opportunity to 

remind trial courts in capital cases to “closely follow the language and formulae 

for voir dire recommended by the Judicial Council in the Standards [of Judicial 

Administration] to ensure that all appropriate areas of inquiry are covered in an 

 

7 As noted, defendant‟s specific objection was to the trial court‟s decision not 

to ask further questions of prospective jurors who chose not to respond to question 

No. 86. To the extent he is also arguing that all four questions on the juror 

questionnaire — which his counsel helped draft — were inadequate to assess 

racial bias, his argument is forfeited. Defendant did not ask the court to pose 

followup questions with respect to questions Nos. 82, 87 or 88 nor did he 

generally argue that the questionnaire failed to adequately assess racial bias. (See 

People v. Taylor, supra, 48 Cal.4th at pp. 607-608.) Even were this claim not 

forfeited, we conclude that on the record before us, voir dire on this issue, both in 

the form of the questionnaire and the trial court‟s followup questions was 

“ „ “reasonably sufficient to test the jury for bias or partiality.” ‟ [Citation.]” 

(People v. Cleveland (2004) 32 Cal.4th 704, 737.)
17

appropriate manner. Failure to use the recommended language may be a factor to 

be considered in determining whether a voir dire was adequate, but the entire voir 

dire must be considered in making that judgment.” (People v. Holt, supra, 15 

Cal.4th at p. 661.)8 

2. Prosecutor’s exercise of peremptory challenges

Defendant contends the trial court erroneously denied his claim under 

People v. Wheeler (1978) 22 Cal.3d 258 that the prosecutor used peremptory 

challenges in an allegedly impermissibly discriminatory manner.

9

a. Background

After the prosecutor used a peremptory challenge to excuse an AfricanAmerican juror — after having excused another African-American juror the day 

before — defense counsel lodged a Wheeler objection. Defense counsel pointed 

out that, with the excusal of this prospective juror, “there appear to be . . . no other 

Blacks in the entire pool,” and maintained that the dismissed juror “seems 

otherwise qualified. She has prior jury experience, including sitting on a jury on a 

 

8 As relevant to this case, “Section 8.5(b)(18) [now redesignated as 

4.30(b)(20)] of the California Standards of Judicial Administration (West‟s Ann. 

Cal. Codes, Rules (Appen.) (1996 ed.) p. 663) (Standards), suggests this inquiry: 

„It may appear that one or more the parties, attorneys or witnesses come from a 

particular national, racial or religious group (or may have a life style different than 

your own). Would this in any way affect your judgment or the weight and 

credibility you would give to their testimony?‟ ” (People v. Holt, supra, 15 

Cal.4th at p. 660, fn. 13.) Unlike question No. 86 in this case, the standardized 

question requires prospective jurors to provide an answer.

9 Defendant also cites Batson v. Kentucky (1986) 476 U.S. 79, which is 

essentially Wheeler‟s federal constitutional counterpart. Notwithstanding his 

failure to cite Batson in the trial court, “the Wheeler objection preserves the 

Batson claims.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008, fn. 9.)
18

murder case [and] indicated in her questionnaire she could personally impose the 

death penalty if it was appropriate . . . .” 

The trial court rejected defendant‟s Wheeler claim, concluding that a prima 

facie case of discrimination had not been made with respect to the dismissed juror. 

The court found that the prospective juror “doesn‟t seem to be quite tuned in 

sometimes,” and noted that she worked “a swing shift at night so that she‟s in 

court all day and working during the night. I noticed when she was sitting in the 

audience when we originally met her, [she] seemed to be behaving in a relatively 

unusual kind of way, leaning over her seat, not tuning in and paying attention to 

what we were doing. She had to leave once during the proceedings, as you may 

recall, and I can‟t say that that‟s what the exercise [of the peremptory challenge] 

was based on, but it would certainly appear to me from what she said and from the 

information, that might explain her . . . relatively noticeable conduct in court, that 

perhaps added together, that was sufficient.” 

Although the court did not find a prima facie case, it invited the prosecutor 

to state his position for the record. The prosecutor said, “I think there was quite 

enough evidence in the way — in the uncandid manner she answered particularly 

on her jury experience to justify my exercise of a peremptory.” Ricardo‟s counsel, 

but not defendant‟s, objected to the sufficiency of the prosecutor‟s explanation for 

his exercise of his peremptory challenge. Ricardo‟s counsel said she disagreed 

that any lack of candor by the prospective juror was sufficient to justify excusal. 

The court replied, “If it [were] for cause, I would certainly disagree as well, but 

it‟s not for cause. It‟s peremptory and it is a sufficient reason.” 

b. Discussion

We recently summarized the law governing defendant‟s claim in People v. 

Clark (2011) 52 Cal.4th 856. “ „ “Under Wheeler, supra, 22 Cal.3d 258, „[a] 
19

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.]‟ 

[Citation.] „Such a practice also violates the defendant‟s right to equal protection 

under the Fourteenth Amendment. [Citations.]‟ ” ‟ (People v. Taylor (2010) 48 

Cal.4th 574, 611.) [¶] 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.” [Citation.] 

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 raceneutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral 

explanation is tendered, the trial 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).) [¶] Under 

Johnson, a defendant establishes a prima facie case „by producing evidence 

sufficient to permit the trial judge to draw an inference that discrimination has 

occurred.‟ (Johnson, supra, 545 U.S. at p. 170; see also People v. Taylor, supra, 

48 Cal.4th at p. 614.) . . . When, as here, it is unclear from the record whether the 

trial court employed [a former, now] disapproved-of standard, „ “we review the 

record independently to „apply the high court‟s standard and resolve the legal 

question whether the record supports an inference that the prosecutor excused a 

juror‟ on a prohibited discriminatory basis.” [Citations.]‟ [Citation.]” (Id. at 

pp. 903-904.)
20

Defendant contends the statistical disparity in the prosecutor‟s use of 

peremptory challenges in which half (two out of four) were directed at the only 

African-American prospective jurors raises an inference of discriminatory 

purpose. In an analogous factual situation we rejected a similar claim. “Bonilla 

relies principally on the fact that all African-Americans — two of two — were 

struck from the juror pool. It is true that the prosecution used peremptories to 

challenge both African-Americans in the pool, but „the small absolute size of this 

sample makes drawing the inference of discrimination from this fact alone 

impossible. “[E]ven the exclusion of a single prospective juror may be the product 

of an improper group bias. As a practical matter, however, the challenge of one or 

two jurors can rarely suggest a pattern of impermissible exclusion.” ‟ [Citations.]” 

(People v. Bonilla (2007) 41 Cal.4th 313, 342-343, fn. omitted.) As in Bonilla, the 

size of the sample in this case does not lend itself to an inference of discriminatory 

purpose. 

Defendant also contends that the trial court‟s reference to the dismissed 

juror‟s work schedule as the potential cause of her noticeable inattentiveness relied 

on knowledge not in the prosecutor‟s possession. However, the issue is not 

whether the prosecutor knew the reason for the prospective juror‟s inattentiveness 

and, for purposes of our analysis, we do not consider the trial court‟s hypothesis 

regarding the reason for her inattention. Our focus is solely on the trial court‟s 

observations regarding the prospective juror‟s lack of attention, which it referred 

to as “unusual” and “noticeable.” These observations are relevant to the question 

whether the record supports an inference of discriminatory excusal because they 

suggest a race-neutral reason for excusing the prospective juror. Defendant does 

not challenge the trial court‟s observations that the prospective juror was 

unusually and noticeably inattentive. The existence of such an apparent raceneutral reason further supports our conclusion that defendant has failed to raise the 
21

inference that the prosecutor excused the prospective juror on the basis of her race. 

(See People v. Taylor, supra, 48 Cal.4th at p. 616 [no inference of discriminatory 

purpose where review of the record disclosed race-neutral reasons for excusing an 

Afrrican American prospective juror].) 

Finally, defendant argues that the trial court should not have credited the 

prosecutor‟s proffered explanation for excusing the prospective juror — her 

asserted lack of candor in responding to questions about her prior jury service —

and suggests that a comparative analysis also undermines the prosecutor‟s 

explanation. If, however, we determine that the trial court correctly found no

prima facie case of discriminatory purpose in the prosecutor‟s exercise of his 

peremptory challenges, we need not address his proffered explanation or engage in 

comparative analysis. “We have found it proper for trial courts to request and 

consider a prosecutor‟s stated reasons for excusing a prospective juror even when 

they find no prima facie case of discrimination; indeed, we have encouraged this 

practice. [Citations.] However, the trial court is not required to do this at the first 

stage of a Wheeler/Batson analysis, and the trial court‟s invitation [to have done so 

here] did „not convert [this] first-stage Wheeler/Batson case into a third-stage 

case.‟ [Citations.] [¶] Finally, because the trial court‟s request did not „convert 

[this] first-stage Wheeler/Batson case into a third-stage case‟ [citation], we also 

„decline defendant‟s invitation to engage in comparative juror analysis‟ [citation].” 

(People v. Taylor, supra, 48 Cal.4th at pp. 616-617.)

Accordingly, we conclude that the trial court correctly denied defendant‟s 

Wheeler motion on the ground that he failed to make a prima facie showing that 

the prosecutor‟s use of his peremptory challenge was motivated by group bias.
22

3. Defendant’s absence from in-chambers voir dire questioning

Defendant contends the trial court violated his statutory rights under 

section 977 as well as his state and federal constitutional rights to due process and 

a trial by jury by conducting some voir dire questioning in chambers and outside 

his presence.10 His argument is without merit.

During voir dire, the trial court said it wished to speak to some prospective 

jurors privately to determine if they were subject to excusal for cause. The court 

indicated that it preferred to do so in chambers to avoid having to send the rest of 

the prospective jurors into the hallway. The court told defense counsel: “If your 

clients are willing, and if you are willing, I‟ll bring [the prospective jurors] in here 

one at a time, we‟ll do it on the record, and you can talk to your clients about 

anything you want to talk about with them in between, or whatever. So we‟ll go 

back out [into open court], and I‟ll list who it is I want to talk to privately, and 

then I‟ll ask you if we can come back here or if we‟ll do it in the courtroom.” 

Both defense counsel agreed to this procedure. The trial court returned to the 

courtroom, called the names of two prospective jurors, and obtained both sides‟ 

agreement that these prospective jurors could be questioned in chambers. After

questioning, the court excused one of the two prospective jurors for cause, over 

 

10 To the extent defendant asserts constitutional claims on appeal not raised 

below, we entertain such claims only if “the new arguments do not invoke facts or 

legal standards different from those the trial court itself was asked to apply, but 

merely assert that the trial court‟s act or omission, insofar as wrong for the reasons 

actually presented to that court, had the additional legal consequence of violating 

the Constitution. . . . [¶] In [this] instance, of course, rejection, on the merits, of a 

claim that the trial court erred on the issue actually before that court necessarily 

leads to rejection of the newly applied constitutional „gloss‟ as well. No separate 

constitutional discussion is required in such cases, and we therefore provide 

none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see People v. Partida 

supra, 37 Cal.4th at pp. 433-439.)
23

defendant‟s objection. The prosecution eventually exercised a peremptory 

challenge against the remaining prospective juror. 

The following day the court followed the same procedure with two other 

prospective jurors. The parties stipulated to the excusal of one of these jurors 

because of his wife‟s medical condition. Defendant eventually exercised a 

peremptory challenge against the other juror. 

The trial court also employed this procedure during the selection of 

alternate jurors, questioning five prospective jurors in chambers. One of those 

questioned was excused for cause because of her language difficulties. 

“ „[A] criminal defendant has a right to be personally present at certain 

pretrial proceedings and at trial under various provisions of law, including the 

confrontation clause of the Sixth Amendment to the United States Constitution, 

the due process clause of the Fourteenth Amendment to the United States 

Constitution, section 15 of article I of the California Constitution, and sections 977 

and 1043. [Citation.]‟ [Citation.] The right is not absolute, however. Under 

federal constitutional principles, a defendant is entitled to be present at a certain 

proceeding only if his or her appearance „is necessary to prevent “interference 

with [his] opportunity for effective cross-examination” ‟ or if the proceeding 

represents a „ “stage . . . that is critical to [the] outcome” and “his presence would 

contribute to the fairness of the procedure.” [Citation.]‟ [Citation.] Our state 

Constitution‟s right to personal presence is circumscribed in a similar manner, as 

are sections 977 and 1043, which codify that right. [Citations.]” (People v. Clark, 

supra, 52 Cal.4th at pp. 1003-1004, fn. omitted.)11 “This court has made it clear 

 

11 Under section 977 a felony defendant must be personally present at certain 

specified portions of trial, such as arraignment and imposition of sentence, and “at 

all other proceedings unless he or she shall, with leave of court, execute in open 

(footnote continued on next page)
24

that neither the state nor the federal Constitution, nor the statutory requirement 

that a defendant be present at „all . . . proceedings‟ (§ 977, subd (b)(1)), provides a 

criminal defendant with the right to be personally present in chambers or at bench 

discussions outside the jury‟s presence on questions of law or other matters as to 

which his presence bears no reasonable, substantial relation to his opportunity to 

defend the charges against him.” (People v. Harris (2008) 43 Cal.4th 1269, 1306,

fn. omitted.)

In circumstances analogous to this case, we have rejected the claim that a 

defendant‟s absence from sidebar or chambers conferences during which 

prospective jurors were questioned violated the defendant‟s right to be present. 

For instance, in People v. Ochoa (2001) 26 Cal.4th 398, the trial court questioned 

two prospective jurors during sidebar conferences at which the defendant‟s 

counsel was present but the defendant was not. We rejected his claim that his 

absence from these conferences deprived him of his right to be present at trial. We 

observed: “Defendant has not indicated any way in which his presence at the 

sidebar conferences bore a reasonably substantial relation to his opportunity to 

defend himself. He admits the impossibility of knowing what sudden impressions 

and unaccountable prejudices he might have formed. Because there must be a 

„reasonably substantial relation‟ to defendant‟s ability to defend himself, and not a 

mere „shadow‟ benefit, we must reject such claims based on undue speculation. 

[Citations.]” (Id. at p. 433.) 

 

(footnote continued from previous page)

court, a written waiver of his or her right to be personally present . . . .” (§ 977, 

subd. (b)(1).) Section 1043 requires that a felony defendant “be personally present 

at the trial.” (§ 1043, subd. (a).) 
25

In this case, defendant asserts that his exclusion from these conferences 

“made it impossible for [him] to assist his counsel when jurors were challenged

and excused,” but he fails to offer any specific explanation how his absence 

inhibited his ability to defend himself. Defendant also suggests that because he 

remained in the courtroom with the rest of the jury panel, the “prospective jurors 

were left with the impression that [defendant] was either too dangerous to 

participate in the proceedings in chambers or not interested in doing so.” This 

assertion is unsupported by the record and, in any event, irrelevant to the claim he 

is making, which is that his exclusion from sidebar conferences made it impossible 

for him to have assisted defense counsel regarding juror selection. We reject 

defendant‟s claim.

B. Evidentiary Claims

1. Admission of three-way call evidence

Defendant contends that admission of evidence that he, his brother Ricardo, 

and another gang member were on a three-way telephone call before Mindy‟s 

murder violated a stipulation entered into by the parties to exclude reference to 

that call. Alternately, he contends the evidence was either irrelevant or, if 

relevant, more prejudicial than probative. We reject these claims. 

a. Background

After defendant‟s brother Ricardo was arrested he was interrogated by 

police. During the interrogation, he revealed that he, defendant, and Jorge Uribe 

(also known as Pelon) had a three-way telephone conversation initiated by 

defendant, who was then in custody on the kidnapping and assault charges 

involving Mindy. Ricardo told police that in the course of that conversation, 

defendant made statements implicating himself in the plan to murder Mindy. 
26

Defendant brought a pretrial motion to sever his case from Ricardo‟s based 

solely on his concern that introduction of Ricardo‟s statement to police would 

violate defendant‟s confrontation rights because neither Ricardo nor Uribe would 

be testifying at the joint trial. 

This type of motion is commonly known as an Aranda/Bruton motion after 

People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 

U.S. 123. The Aranda/Bruton rule “declares that a nontestifying codefendant‟s 

extrajudicial self-incriminating statement that inculpates the other defendant is 

generally unreliable and hence inadmissible as violative of that defendant‟s right 

of confrontation and cross-examination, even if a limiting instruction is given.” 

(People v. Anderson (1987) 43 Cal.3d 1104, 1120.) As defendant acknowledged 

in his motion, as an alternative to severance, Ricardo‟s statement to police would 

be admissible against Ricardo if it was redacted to omit any portion that 

incriminated defendant. For this proposition he cited Richardson v. Marsh (1987) 

481 U.S. 200 (Richardson). In Richardson, the United States Supreme Court held 

“the Confrontation Clause is not violated by the admission of a nontestifying 

codefendant‟s confession with a proper limiting instruction when, as here, the 

confession is redacted to eliminate not only the defendant‟s name, but any 

reference to his or her existence.” (Id. at p. 211.)

At the hearing on defendant‟s motion, the prosecutor informed the court 

that to avoid severance he intended to confer with defense counsel to reach an 

agreement regarding Ricardo‟s statement. At the next pretrial conference, the 

prosecutor read into the record the agreed-upon stipulation: “[O]ur agreement is 

that any reference to [defendant], anything that he said, the fact that he was 

involved in any conversations with Mr. Ricardo Lopez, the fact that there were 

even three-way [telephone] conversations [between defendant, Ricardo and 

Uribe], which would indicate that this was a missing third party there, those will 
27

be deleted. Our agreement is, however, that any references to those conversations, 

since they were three-party conversations, will only include reference to the fact 

that this was a conversation between Ricardo Lopez and this person George [sic]

Uribe, also known as Pelon, during which the murder of Miss Carmody was 

discussed, but there will not be any reference to the fact that this was a three-way 

conversation or that [defendant] was involved. [¶] I believe we‟ve looked this 

over. We‟ve looked together. We‟re aware of what the prevailing case law is in 

this area, and we believe that this is in conformance with Richardson v. Marsh.”12 

Defense counsel added: “So stipulated, with the further proviso, so I understand

that [the prosecutor] will instruct his investigating officers, if they testify to any 

portion of Ricardo Lopez‟s statement, that they will not inadvertently, or 

otherwise, refer to those passages that have been redacted.” The prosecutor agreed 

to this condition and the court accepted the stipulation. 

In the prosecutor‟s opening statement, he told the jury that he would be 

calling Patty Lopez, defendant‟s sister, to testify that in the days before Mindy‟s 

killing Patty arranged a three-way call among defendant, Ricardo and Uribe. 

Defense counsel objected, arguing that evidence that Patty set up a three-way call 

violated the stipulation. According to counsel, “The agreement was not only that 

the content of the conversation not be admissible, not be presented to the jury, but 

the very fact of a three-way conversation likewise [be] totally off limits.” He 

requested a mistrial. 

 

12 Although the stipulation refers to three-way conversations in the plural, the 

only conversation at issue here is the one to which Ricardo referred in his 

statement to the police during which he, defendant, and Uribe discussed killing 

Mindy. 
28

The prosecutor maintained that the stipulation related solely to Ricardo‟s 

statement to the police and did not preclude other, independent testimony about 

the existence of the three-way call. He stated that he had disclosed to defense 

counsel that he intended to call Patty Lopez. The court found, however, that the 

prosecutor‟s opening statement “appeared to be violative of the spirit, if not the 

absolute language of the stipulation,” and took the mistrial motion under 

submission. 

The next day, there was further discussion of the matter. The prosecutor 

insisted that the stipulation applied only to Ricardo‟s statement and that its sole 

purpose was to comply with Richardson, supra, 481 U.S. 200, and avoid 

severance. 

The following day, the court reviewed the stipulation on the record and 

agreed with the defense that it precluded “mention of a three-way conversation.” 

Again, however, the prosecutor argued that the stipulation covered only Ricardo‟s 

statement, adding “I would no way enter into any agreement limiting my ability to 

present other evidence in this case. And I did not do that, and it was never my 

intention to do that.” The prosecutor pointed out that Patty Lopez‟s testimony 

about setting up the three-way call impeached defendant‟s statement to police that 

he had not spoken to his brother in the days before the shooting. He observed

further that, unlike Ricardo, who did not plan to testify, Patty Lopez would testify 

and could be cross-examined, as could other witnesses who would be testifying 

regarding the phone records and what they showed. 

At the conclusion of the hearing, the trial court denied the mistrial motion. 

In the court‟s view there was “not a meeting of minds” with regard to the 

stipulation and it considered any agreement to be “limited as set forth by [the 

prosecutor].” Defendant‟s counsel argued that if the content of the three-way 

conversation was inadmissible under the stipulation, the existence of any such call 
29

would be irrelevant or lead to impermissible speculation about the content. The 

court disagreed, observing that the existence of the call itself had some relevance. 

Defendant renewed his objection prior to Patty Lopez‟s testimony, making 

the further argument that, even if relevant, the testimony would be more 

prejudicial than probative. The trial court again remarked that the stipulation was 

not clear and overruled the objection. 

When questioned about the call, Patty Lopez initially claimed a loss of 

memory, even when confronted with her statement to police admitting that she set

up three-way calls before and after the shooting. Ultimately, she admitted she had 

told police she had set up a three-way call among defendant, Ricardo, and Uribe 

the week before the shooting. The prosecution later called Detective Michael 

Oppelt, who interviewed defendant after the shooting. Oppelt explained that 

defendant told him the last time he had spoken to Ricardo was when defendant 

was initially arrested on the kidnapping and assault charges several weeks before 

the shooting. According to the detective, defendant also said he had not spoken to 

Uribe after he was arrested. 

b. Discussion

Defendant contends that the admission of Patty Lopez‟s testimony violated 

the stipulation regarding the redaction of Ricardo‟s statement to police.

As noted, the prosecutor argued — and the trial court ultimately agreed —

that the stipulation was intended solely to avoid severance of defendant‟s trial 

from Ricardo‟s trial by redacting Ricardo‟s statement to eliminate any reference to 

defendant pursuant to Richardson, supra, 481 U.S. 200. Defendant contends that 

the stipulation could be given effect only by interpreting it to exclude all

references to the three-way phone conversation, including Patty Lopez‟s 
30

testimony, and that the trial court erred by interpreting the stipulation to permit her 

testimony. 

The trial court initially agreed that the stipulation was at first blush broad 

enough to lend some support to defendant‟s interpretation of it. After hearing the 

prosecutor‟s explanation, which evidently the court credited, the court concluded 

there had been no meeting of the minds between the parties. It then construed the 

stipulation to limit it to Ricardo‟s statement to the police. We conclude that the 

stipulation itself was broadly worded in parts and that the trial court‟s ultimate 

interpretation of it was reasonable in light of the circumstances that led the parties 

to agree to the stipulation and defense counsel‟s further proviso. The record 

reveals that those concerns dealt exclusively with the admissibility of Ricardo‟s 

statement to police in such a way that would not require severance. To achieve 

this goal, Richardson required the redaction of Ricardo‟s statement but not the 

preclusion of Patricia Lopez‟s testimony. The trial court‟s interpretation of the 

stipulation gave the parties what they had bargained for.

In the analogous case of People v. Dyer (1988) 45 Cal.3d 26, 54 (Dyer), the 

defendant made a motion under People v. Beagle (1972) 6 Cal.3d 441, 451-454, to 

exclude his three prior felony convictions for impeachment purposes should he 

testify in his defense. The prosecutor orally agreed that he would not impeach 

defendant with those prior convictions. Defense counsel asked whether the 

prosecutor also intended to refrain from asking character witnesses about the 

defendant‟s prior convictions. The prosecutor replied, “ „It would apply to that,‟ ” 

and explained he would ask his witnesses not to volunteer any information about 

the defendant‟s prior convictions. (Dyer, supra, at p. 55.) He stated further, “ „we 

assent to [the defendant‟s] request not to bring out in any way before this jury in 

this [guilt] phase of the trial any evidence of any nature concerning any prior 

convictions suffered by the defendant in this phase of the trial.‟ ” (Ibid.)
31

Later, defense counsel asked a defense witness about the defendant‟s 

reputation. The trial court interrupted the witness‟s testimony to confer with 

counsel regarding the extent of the prosecutor‟s stipulation. The question on 

which the court sought clarification was whether the prosecutor had intended by 

the stipulation to refrain from asking a witness who testified to the defendant‟s 

reputation for nonviolence about the prior convictions. Defense counsel argued 

that the stipulation barred the prosecutor from asking about the prior convictions 

with respect to any character evidence. The prosecutor rejected that interpretation, 

arguing it was never his intention to allow the defendant to present unchallenged 

reputation evidence “ „because then it would be basically asking me if I would let 

the jury hear false information about the defendant. . . . So it was never clearly 

stated to me [by the defense] that there was an attempt to get me to be silent when 

the jury gets this false notion that this defendant has been nonviolent in his past. 

And I would not have acceded to those things, and I don‟t think the Court would 

require me to do that.‟ ” (Dyer, supra, 45 Cal.3d at p. 55.)

The trial court agreed. It found that there had been no “ „meeting of the 

minds‟ ” regarding the stipulation. (Dyer, supra, 45 Cal.3d at p. 56.) It concluded 

further that the prosecutor‟s interpretation in the context in which the stipulation 

arose — the defendant‟s Beagle motion — was correct; that the prosecutor had 

intended to agree only that he would not raise the issue of the defendant‟s prior 

convictions through his own witnesses. “The court observed that there was no 

reason for the prosecutor intentionally to forgo his right to impeach defendant‟s 

character witnesses, and defense counsel never indicated that he meant to obtain 

from the prosecutor a waiver of his right to impeach any witness on defendant‟s 

veracity or his lack of violent propensities.” (Ibid.)

We found the trial court‟s ruling to be proper. We observed that a party 

may seek relief from the burdensome effect of a stipulation “ „by enforcement of 
32

the stipulation in a reasonable and nonburdensome way.‟ [Citation.] The court 

followed that procedure here; it did not purport to release the prosecutor from his 

stipulation, but merely interpreted it to reflect the probable intention of the 

parties.” (Dyer, supra, 45 Cal.3d at p. 57.) We noted that the “court could have 

simply released the prosecutor from the stipulation,” but, instead, “in effect found 

here that the stipulation, as interpreted by defense counsel, should not be binding.” 

(Ibid.)

Although factually distinguishable, Dyer provides some guidance in the 

present case. As in Dyer, the trial court in the present case found there was no 

meeting of the minds regarding the meaning and scope of the stipulation at issue. 

The defense argued the purpose of the stipulation was to prohibit any evidence of 

the existence of the three-way call. The prosecutor argued the sole purpose of the 

stipulation was to comply with Richardson and to permit the admission of 

Ricardo‟s confession and avoid severance. The trial court concluded the 

prosecutor‟s interpretation was the more reasonable one. We agree.

Defendant‟s severance motion specifically referred to redaction under 

Richardson as an alternative to severance. The prosecutor‟s initial comments to 

the court indicated that he hoped to reach agreement with the defense to redact 

Ricardo‟s confession to avoid the need for severance. Additionally, when the 

stipulation was entered into the record the prosecutor stated that it was “in 

conformance with Richardson v. Marsh.” These circumstances support the trial 

court‟s conclusion that the prosecutor did not intend by the stipulation to preclude 

evidence about the existence of the three-way call other than by Ricardo‟s 

statement to the police.

The trial court‟s ruling is consistent with Richardson itself. Under 

Richardson, a defendant‟s confrontation clause rights are protected at a joint trial 

by the redaction of any reference to the defendant in his or her codefendant‟s 
33

confession even if the redacted confession incriminates the defendant when linked 

to other evidence introduced at trial. (People v. Mitcham (1992) 1 Cal.4th 1027, 

1046-1047.) In accordance with this principle, compliance with Richardson did 

not require the exclusion of Patty Lopez‟s testimony even if that testimony, when 

linked to Ricardo‟s redacted confession, might incriminate defendant. 

Defendant next contends that any ambiguity in the stipulation should be 

construed in his favor. He provides no decisional support for such a rule. As the 

stipulation was construed by the court, defendant received what he was entitled to 

receive under Richardson — the redaction of Ricardo‟s statement to eliminate any 

reference to him. As noted, Richardson does not require the exclusion of other 

evidence that, when linked with the redacted statement, might incriminate 

defendant. That evidence, moreover, had relevance beyond any possibly 

incriminatory effect when linked to Ricardo‟s redacted statement in that it 

impeached defendant‟s statement to police that he did not speak to Ricardo or 

Uribe in the days leading up to Mindy‟s killing.

We also reject defendant‟s argument that any ambiguity should be 

construed in his favor because the prosecutor caused the uncertainty. The record 

reveals that the stipulation was the fruit of negotiations between both parties. 

Defense counsel had an opportunity to speak up before accepting the stipulation 

and did, in fact, add to it his understanding that the prosecutor would instruct his 

police witnesses to refrain from referring to any portion of Ricardo‟s interview 

that had been redacted. We see no reason to hold any ambiguity against the 

prosecution. Nor are we persuaded by defendant‟s claim that he relied on the 

stipulation when he withdrew his severance motion because he believed it 

protected defendant‟s confrontation clause rights. In line with the requirements of 

Richardson, the stipulation did protect his rights, even as ultimately construed by 

the trial court.
34

Defendant next argues that the evidence was either irrelevant or, if relevant, 

that its probative value was outweighed by its prejudicial effect. (Evid. Code, 

§ 352.) “ „Except as otherwise provided by statute, all relevant evidence is 

admissible.‟ [Citations.] „Evidence is relevant if it tends “ „logically, naturally, 

and by reasonable inference‟ to establish material facts . . . .” ‟ ” (People v. Clark, 

supra, 52 Cal.4th at p. 892.) “[T]he trial court has broad discretion to determine 

the relevance of evidence. [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 

727.) Applying this standard, we conclude that Patty Lopez‟s testimony was 

clearly relevant both as tending to show defendant‟s participation in the planning 

of Mindy‟s killing and to impeach defendant‟s statement to police that he had not 

spoken to either Ricardo or Uribe after his initial arrest for the kidnapping and 

assault.

Nor, contrary to defendant‟s claim, did the trial court abuse its discretion 

when it denied his motion to exclude the testimony as more prejudicial than 

probative under Evidence Code section 352. Under this section, the court may 

exclude even relevant evidence if “its probative value is substantially outweighed 

by the probability that its admission will . . . create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) 

We review the trial court‟s rulings under this section for abuse of discretion. 

(People v. Waidla (2000) 22 Cal.4th 690, 724.) “The prejudice which exclusion of 

evidence under Evidence Code section 352 is designed to avoid is not the 

prejudice or damage to a defense that naturally flows from relevant, highly 

probative evidence.‟ . . . „The “prejudice” referred to in Evidence Code section 

352 applies to evidence which uniquely tends to evoke an emotional bias against

the defendant as an individual and which has very little effect on the issues. In 

applying section 352, “prejudicial” is not synonymous with “damaging.” ‟ 

[Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) The evidence that 
35

defendant participated in the three-way call with his brother and Uribe was 

undoubtedly damaging to him. But it was not prejudicial under Evidence Code 

section 352, as articulated above.

Defendant‟s arguments to the contrary are not persuasive. Defendant 

asserts that Patty Lopez‟s testimony was only minimally probative because 

defendant‟s denial that he had spoken to Ricardo or Uribe did not show a 

consciousness of guilt about anything related to the crime. Patty Lopez testified 

that defendant spoke to the two men responsible for Mindy‟s murder in the days 

before the shooting. Given this evidence, defendant‟s denial that he had spoken to 

Uribe or Ricardo in that time frame raised a strong inference of consciousness of 

guilt. Defendant asserts furthermore that the testimony was prejudicial because 

the jury could have inferred that defendant‟s conversation with Ricardo and Uribe 

was in furtherance of the plan to kill. Indeed, that was one of the purposes for 

which the evidence was introduced. Although the evidence arguably “prejudiced” 

defendant in the same way that all evidence linking him to the crime was 

“prejudicial,” it did not prejudice him within the meaning of Evidence Code 

section 352. (People v. Karis, supra, 46 Cal.3d at p. 638.) 

Defendant also argues that Patty Lopez‟s testimony was cumulative to other 

evidence that he called and spoke to a number of people while in custody. But her

testimony was the only direct evidence that defendant spoke to Ricardo and Uribe 

in the days before the murder. The only other evidence was the Lopez family‟s

phone records and records of defendant‟s location while in custody. These records 

established that defendant called his family‟s residence from custody but did not 

establish to whom he spoke. Patty Lopez‟s testimony was not cumulative of other 

evidence. Moreover, to the extent her testimony was cumulative, it weakens 

defendant‟s claim that it was prejudicial within the meaning of Evidence Code 

section 352. The inferences to be drawn from Patty Lopez‟s testimony that he 
36

finds objectionable — that he planned the killing with Ricardo and Uribe — could

also have been drawn from the documentary evidence cited above. 

The court did not abuse its discretion when it admitted Patty Lopez‟s 

testimony.

2. Ramon Ramos’s preliminary hearing testimony

Defendant contends the trial court erred when it admitted evidence against 

him of codefendant Ricardo‟s state of mind on the night of the murder. We agree 

with defendant but conclude that the error was harmless.

Ricardo presented the preliminary hearing testimony of Ramon Ramos in 

his defense after Ramos refused to testify at the trial and the trial court declared 

him unavailable. (Evid. Code, § 240.)13 Ricardo‟s counsel requested that only 

certain portions of Ramos‟s prior testimony be read into evidence, including his 

statements that he and Ricardo were drinking on the night of the murder, that 

Ricardo and Mindy spoke to each other in loud voices, and that after Ricardo shot 

Mindy he put the gun to his own head. The prosecutor requested that other 

portions of Ramos‟s testimony also be read, specifically his statement that when 

Ricardo pointed the gun to his head, he said, “It‟s for my carnal,” which meant, 

“It‟s for my brother.” Defendant‟s counsel objected that the statement was 

inadmissible hearsay and improper rebuttal. The prosecutor countered that the 

statement “was consistent with other testimony we received from the other 

witnesses, and that one of the witnesses testified that she heard the word „brother‟ 

 

13 Under Evidence Code section 240, subdivision (a)(6), a witness is 

unavailable if he or she is “[p]ersistent in refusing to testify concerning the subject 

matter of the declarant‟s statement despite having been found in contempt for 

refusal to testify.” Ramos refused to testify despite being advised by the court that 

he had no right to do so. This would appear to have been the basis of the finding 

of unavailability even though the court declined to sanction Ramos. 
37

when [Ricardo] was doing it.” The court overruled the defense objection, 

concluding that the phrase did not refer to any conversation between Ricardo and 

defendant, but only to Ricardo‟s state of mind at the time of the shooting. After 

Ramos‟s testimony on this point was admitted, defendant‟s counsel renewed his 

objection and added an objection that the testimony “calls for a conclusion.” The 

court overruled the objection. 

The parties agree that the trial court admitted the statement for the 

nonhearsay purpose of showing Ricardo‟s state of mind at the time of the 

shooting. (Evid. Code, §§ 1250, 1251.)14 They disagree, however, as to whether 

the state of mind evidence was relevant. (People v. Bunyard (1988) 45 Cal.3d 

1189, 1204 [“[A]n out-of-court statement is not made admissible simply because 

its proponent states a theory of admissibility not related to the truth of the matter 

asserted. . . . „The trial court must also find that the nonhearsay purpose is 

relevant to an issue in dispute.‟ ”].) Defendant maintains that Ricardo‟s state of 

mind was irrelevant to any issue involving him. He contends further that the 

evidence was improper rebuttal because he had not placed Ricardo‟s state of mind 

at issue. The Attorney General argues that Ricardo‟s state of mind was relevant in 

that Ramos‟s prior testimony suggested that Ricardo‟s act of shooting Mindy was 

unplanned and unpremeditated.

 

14 As relevant here, Evidence Code section 1251 states: “Subject to Section 

1252, evidence of a statement of the declarant‟s state of mind . . . at a time prior to 

the statement is not made inadmissible . . . if: [¶] (a) The declarant is unavailable 

as a witness; and [¶] (b) The evidence is offered to prove such prior state of 

mind, . . . and the evidence is not offered to prove any fact other than such state of 

mind . . . .” Evidence Code section 1252 states: “Evidence of a statement is 

inadmissible under this article if the statement was made under circumstances such 

as to indicate its lack of trustworthiness.”
38

There are two problems with the Attorney General‟s theory. The first is 

that the statement “It‟s for my carnal,” is as consistent with an impulsive action as 

a planned one. The second problem is that such evidence would tend to show

premeditation only if it were admitted for its truth — that Ricardo shot Mindy on 

behalf of, or at the behest of, his brother. We agree with defendant that the 

evidence was improper rebuttal because he had not placed Ricardo‟s state of mind 

at issue and to the extent the evidence was used against defendant, it was admitted 

in error. 

We disagree, however, with defendant‟s further assertion that the error was 

prejudicial. This testimony was fleeting and — as we discuss more fully below 

(pt. II.C., post) in addressing defendant‟s sufficiency of the evidence claim —

there was more than sufficient evidence that Ricardo committed the murder at 

defendant‟s behest. Indeed, as the Attorney General points out, the prosecution 

had presented testimony in its case-in-chief that when Ricardo was shooting 

Mindy he said something to her about his brother. On this record, we conclude 

that the error was harmless. (People v. Jablonski (2006) 37 Cal.4th 774, 820-821 

[in light of overwhelming evidence of the defendant‟s guilt, the erroneous 

admission under Evidence Code section 1250 of the victim‟s statement that she 

feared the defendant was harmless under either state or federal standards of 

assessing prejudice].) 

3. The 187 evidence

Over defendant‟s objection, the trial court admitted the testimony of two 

witnesses who indicated that they saw the number 187 — inferentially a reference 

to section 187, the murder statute — on the victim‟s pager after she was shot. A 

paramedic saw the number 187 on the pager as he transported Mindy to the 

hospital. The hospital chaplain also saw a series of 187‟s and a phone number 
39

later identified as belonging to Mindy‟s mother. The pager indicated the message

had been received at 8:42 p.m. The precise time of the shooting was not 

established, but a witness testified that it was about 9:00 p.m. when she found 

Mindy lying in the street, still alive. When defendant spoke to police two weeks 

after the shooting, he spontaneously said that Mindy told him that she had been 

receiving the number 187 on her pager. He assured her the message was not from 

anyone in his family. 

Defendant contends that the 187 evidence was irrelevant and speculative or, 

even if relevant, its probative value was outweighed by its prejudicial effect.

We find no abuse of discretion. Evidence that a shorthand reference to the 

Penal Code‟s murder statute appeared on the victim‟s pager near the time she was 

shot tended to support the prosecution‟s theory that the shooting was premeditated 

and not the result of Ricardo‟s impulsive action. Defendant asserts that the 

evidence was speculative because the identity of the person who sent the message

was not established. Although no direct evidence proved the sender‟s identity, the 

existence and timing of the message tended to raise the reasonable inference that 

the page was sent by defendant or at his request. Notably, during defendant‟s 

custodial interrogation, he spontaneously volunteered that Mindy had told him the 

number 187 had appeared on her pager. The jury reasonably could have 

disbelieved defendant‟s claim that he had learned of this from the victim herself, 

particularly because there was no evidence that he had spoken with Mindy in the 

days before her murder. Rather, the jury could have concluded that defendant 

offered this explanation to police preemptively before the police could confront 

him with the evidence that the number had been observed on her pager after she 

was shot. The appearance of the number 187 on the victim‟s pager when coupled 

with defendant‟s spontaneous attempt to deflect any responsibility for it was

indisputably relevant to the issue of defendant‟s involvement in the shooting. Nor 
40

was the probative value of the evidence outweighed by its prejudicial effect under 

Evidence Code section 352. It was simply not the kind of evidence that 

“ „ “ „uniquely tends to evoke an emotional bias against the defendant as an 

individual and which has very little effect on the issues.‟ ” ‟ ” (People v. Doolin

(2009) 45 Cal.4th 390, 439.) Accordingly, the trial court did not abuse its 

discretion in admitting the pager evidence.

4. Limitations on cross-examination of Susan Carmody

Defendant contends the trial court erroneously sustained prosecution 

objections to three questions that his counsel asked during cross-examination of 

the victim‟s mother, Susan Carmody. Specifically he asserts that the trial court 

erred when it prevented counsel from asking (1) how many times Mindy had run 

away from home before she moved in with defendant‟s family, (2) whether Mindy

returned home of her own volition or because she was frightened, and (3) whether 

Carmody had once said that Mindy dressed “like a [W]hite girl” when she and 

Carmody were together but “like a chola” when they were not. (Defendant 

explains that “chola” is a slang word for a Latina gang member.) 

The trial court did not abuse its considerable discretion in sustaining the 

prosecutor‟s objections to these questions. Carmody testified that Mindy had run 

away from home before she moved in with defendant‟s family and that at the time 

Mindy moved in with defendant, she was 14 or 15 years old. Carmody testified 

further that she did not demand that Mindy return home because she felt Mindy 

was safe and being cared for at the home of defendant‟s family. 

Defendant contends that evidence regarding the number of times Mindy ran 

away from home was necessary because otherwise he might have been perceived 

as the person responsible for, or as having contributed to, the victim‟s problems 

with her mother. This is not persuasive. Testimony by a mother that her 14- or
41

15-year-old daughter had run away from home more than once before she moved 

in with her boyfriend‟s family was plainly indicative of a troubled family dynamic 

that predated defendant‟s relationship with Mindy. Indeed, Carmody‟s further 

testimony that she allowed her daughter to remain with defendant‟s family 

because Mindy was safe and being cared for would have put defendant and his

family in a positive light. The exclusion of testimony regarding the number of 

times Mindy had run away from home was not an abuse of discretion.

Nor did the court abuse its discretion when it sustained the prosecution‟s 

objection to defense counsel‟s question whether the police had frightened Mindy 

into returning home from defendant‟s house. Carmody had already testified it was 

possible Mindy returned home because “some police officers scared her into doing 

so.” She testified further that Mindy maintained her relationship with defendant 

even after she returned home. Defendant asserts the court should have allowed 

him further examination of Carmody concerning the circumstances under which 

Mindy returned home to dispel any implication that Mindy did so because she had 

rejected defendant. But the jury was aware that Mindy continued her relationship 

with defendant after she returned home and that her return home may have been 

the result of police intervention. The court did not err in declining to allow further

questioning on this minor and peripheral point.

Finally, defendant asserts the trial court erred in prohibiting him from 

questioning Carmody regarding her reputed statement concerning Mindy‟s manner 

of dressing because it was relevant to explore Carmody‟s state of mind and her 

bias in this case as a result of her daughter‟s relationship with defendant. Defense 

counsel had already elicited testimony from Carmody that she was upset about 

Mindy‟s relationship with defendant and that she had chosen to live with him. 

Moreover, Carmody‟s bias would have been unmistakable to the jury, given that 

defendant stood accused of arranging Mindy‟s killing. The trial court did not 
42

abuse its discretion in prohibiting a question the main point of which appeared to 

be to attempt to establish that Carmody was generally prejudiced against Latinos.

5. Evidence of the victim’s demeanor at the kidnapping preliminary 

hearing

After the victim‟s preliminary hearing testimony was read into the record, 

the prosecutor questioned one of the detectives who had been present when Mindy 

testified, regarding Mindy‟s demeanor. Defendant objected that the testimony was 

irrelevant and speculative. The objection was overruled. The detective testified 

briefly that Mindy was “frightened, upset and sometimes crying,” and, at one 

point, was given tissues by the trial judge, who asked her, “ „Would you like to go 

on?‟ ” 

Defendant renews his claim that testimony regarding the victim‟s demeanor 

at the preliminary hearing was irrelevant and may have led the jury to speculate 

that she was frightened to be giving testimony against defendant. The Attorney 

General asserts the evidence was relevant to the jury‟s assessment of Mindy‟s 

demeanor for purposes of judging her credibility at the prior hearing. (Evid. Code, 

§ 780.) Defendant responds that such assessment must be made 

contemporaneously with the witness‟s testimony and not by secondhand evidence 

in the witness‟s absence.

Evidence Code section 780 provides in pertinent part: “Except as 

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

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

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

to any of the following: [¶] (a) His demeanor while testifying and the manner in 

which he testifies.” “[A] witness‟s „demeanor is always relevant to credibility.‟ 

[Citations.]” (People v. Scott (2011) 52 Cal.4th 452, 493.) The Attorney General 

argues that Evidence Code section 780 does not limit demeanor evidence to the 
43

jury‟s firsthand observations of the witness as he or she is testifying before the 

jury but, when the witness is unavailable, such evidence may be supplied by other 

witnesses. Defendant contends that permitting secondhand testimony regarding 

demeanor may violate the confrontation clause because the defendant is unable to 

effectively challenge such evidence.

We need not decide whether admission of this testimony was error because 

any error would have been harmless under any standard of prejudice. The 

testimony was brief and the prosecutor did not emphasize the officer‟s 

observations in his closing argument. Furthermore, the jury reasonably could have 

found from Mindy‟s preliminary hearing testimony that she was frightened by 

defendant. Mindy testified, for example, that she refused to allow defendant to 

come to her house because “I‟m scared of him,” and that she was frightened when 

defendant pushed her into his car. We conclude any error in permitting the officer 

to testify regarding Mind‟s demeanor at the preliminary hearing was harmless.

6. Evidence of Mindy’s diary entry and her statements to one of her

teachers

During the defense case, defendant‟s mother, aunt and uncle testified that, 

on the day Mindy was allegedly kidnapped and assaulted, she appeared to them to 

have been uninjured and unafraid and that she was with defendant of her own 

volition. In rebuttal, and over defendant‟s objection, the prosecution introduced a 

passage from Mindy‟s diary and a statement she made to one of her teachers that 

were consistent with her testimony at the preliminary hearing that defendant had 

assaulted and kidnapped her. The diary entry read: “[Defendant] broke in and 

stabbed me and choked me and kidnapped me. Went to Police station, went to 

Grandma‟s.” Mindy‟s teacher testified that Mindy told him defendant had broken 

into her house, threatened her, held a knife to her neck and taken her to his aunt‟s 

house. 
44

On appeal, defendant argues the rebuttal evidence was improperly admitted 

because it did not constitute a prior consistent statement and it violated his 

confrontation and due process rights and his right to a reliable capital trial. His 

argument is meritless.

Defendant‟s confrontation clause claim is not preserved on appeal because 

he did not object to the admission of the rebuttal evidence on that ground. (People 

v. Riccardi (2012) 54 Cal.4th 758, 801 & fn. 21 (Riccardi).) His claim, based on 

Crawford v. Washington (2004) 541 U.S. 36, also is without merit. In Crawford, 

the United States Supreme Court held that “ „[t]estimonial statements of witnesses 

absent from trial [can be] admitted only where the declarant is unavailable, and 

only where the defendant has had a prior opportunity to cross-examine.‟ ” 

(Williams v. Illinois (2012) ___ U.S ___ [132 S.Ct. 2221, 2232].) But neither the 

diary entry nor Mindy‟s statement can be deemed testimonial within the meaning 

of Crawford. Under the circumstances of this case, Mindy‟s recording of the 

day‟s events in her private diary and her disclosure of the incident to a trusted 

teacher, like other “informal statement[s] to a person not affiliated with law 

enforcement,” fall outside the scope of the confrontation clause, which is 

concerned with “formal and solemn accusatory statements . . . in the context of 

criminal investigations or inquiries.” (People v. Cage (2007) 40 Cal.4th 965, 987, 

italics omitted; see id. at pp. 986-991 [assault victim‟s statement to a hospital 

physician identifying the defendant as his assailant was nontestimonial].) 

Defendant‟s Crawford claim fails.

We turn now to whether this evidence was properly admitted, over 

defendant‟s objection, under the exception to the rule against admitting hearsay to 

prove prior consistent statements. 

“To be admissible as an exception to the hearsay rule, a prior consistent 

statement must be offered (1) after an inconsistent statement is admitted to attack 
45

the testifying witness‟s credibility, where the consistent statement was made 

before the inconsistent statement or (2) where there is an express or implied 

charge that the witness‟s testimony recently was fabricated or influenced by bias 

or improper motive, and the statement was made prior to the fabrication, bias, or 

improper motive. (Evid. Code, §§ 791, 1236.)” (Riccardi, supra, 54 Cal.4th at 

p. 802.) Here, as in Riccardi, we “are presented with the latter situation — an 

express or implied charge that [Mindy‟s] testimony recently had been fabricated or 

influenced by bias or improper motive — governed by subdivision (b) of Evidence 

Code section 791.” (Ibid.)

Defendant contends this second exception is inapplicable for two reasons. 

First, he argues there was no suggestion in the testimony of his witnesses that 

Mindy had fabricated her preliminary hearing testimony, thus opening the door to 

rehabilitating her testimony with the admission of her diary entry and the 

statement to her teacher. We are not persuaded. The statute itself speaks of an 

“express or implied charge” of fabrication. (Evid. Code, § 791, subd. (b), italics 

added.) “ „[R]ecent fabrication may be inferred when it is shown that a witness 

did not speak about an important matter at a time when it would have been natural 

for him to do so,‟ and in such a circumstance, „it is generally proper to permit 

rehabilitation by a prior consistent statement.‟ [Citations.]” (Riccardi, supra, 54 

Cal.4th at p. 803; see also People v. Manson (1976) 61 Cal.App.3d 102, 143.) In 

this case, defendant‟s mother and aunt were specifically asked whether Mindy told 

them she was being held against her will. Both said no. Additionally, defendant‟s 

aunt testified that Mindy did not complain of any injuries. Plainly, the purpose of 

this testimony was to imply that Mindy‟s preliminary hearing testimony was of 

recent fabrication. 

Second, defendant argues that Mindy‟s diary entry and statement to the 

teacher do not qualify as prior consistent statements because they were made after 
46

defendant‟s relatives had observed and spoken to her and after she had spoken to 

the police and accused defendant. Defendant argues “[a]t that point, she had 

already spoke[n] to [defendant‟s] relatives and any motive to fabricate the 

evidence was already present. Accordingly, Melinda‟s statements were 

inadmissible hearsay because they were not made before any other inconsistent 

statements or before she had a motive to fabricate [defendant‟s] guilt.” We 

disagree.

As noted, Mindy‟s statements fall under subdivision (b) of Evidence Code 

section 791 (section 791(b).) Pursuant to section 791(b), a prior consistent 

statement is admissible to corroborate later testimony which is impliedly or 

expressly alleged to have been fabricated if the prior consistent statement was 

made before the motive for fabrication arose. The specific timing question in this 

case, then, is whether Mindy‟s diary entry and her statement to her teacher were 

made before any motive to fabricate arose. But defendant does not identify the 

moment at which a motive to fabricate arose before Mindy‟s diary entry or her 

statement to the teacher. Rather, although he casts his argument as a timing claim, 

what he is actually asserting is that Mindy‟s silence could not provide the 

predicate for the admission of these statements to support her preliminary 

testimony because what was at issue was not her silence, “but her positive 

interactions with [defendant‟s] family and their observations about her physical 

and mental state.” In other words, he is simply repeating his earlier claim that the 

testimony of his witnesses about their interactions with, and observations of, 

Mindy on the day of the kidnapping did not imply that her failure to tell them 

about the kidnapping was inconsistent with her later preliminary hearing 

testimony.

As we have already explained, Mindy‟s silence was at issue. The premise 

of the defense was that if, as Mindy testified at the preliminary hearing, she had 
47

been assaulted and kidnapped by defendant, she would have said something to his

mother, aunt, and uncle. From the evidence she said nothing to them, the jury was 

invited to infer that her preliminary hearing testimony was fabricated. The use of 

her silence by the defense for this purpose opened the door to admission of prior 

statements consistent with her preliminary hearing. 

It has long been recognized that when, as in this case, a witness‟s silence is 

presented as inconsistent with his or her later testimony, a statement made at the 

earliest opportunity after the silence that is consistent with the witness‟s later 

testimony may be admissible as a prior consistent statement under section 791(b). 

(People v. Gentry (1969) 270 Cal.App.2d 462, 474 (Gentry).)

In Gentry, the defendant presented evidence at trial that when the witness, 

Turner, was first questioned by police he failed to provide them with the damaging 

information about the defendant‟s involvement in the crime to which he later 

testified at trial. To rebut the implication that Turner‟s trial testimony was 

fabricated, the prosecution was allowed to introduce evidence of a second 

statement Turner made to the police the following day in which he did include the 

information to which he testified at trial. The Court of Appeal held the trial court 

properly admitted the second statement. As the court observed, at the time of 

Turner‟s initial interrogation by the police on the night of the crime he was 

“groggy and half asleep,” having gone to sleep drunk. (Gentry, supra, 270 

Cal.App.2d at p. 474.) But, “he made a full statement to the sheriff‟s officers of 

what he knew relevant to the case at the earliest opportunity after he had recovered 

his senses. The explanation was corroborated by one of the officers to whom the 

statement had been made and by the statement reporter who recorded the 

statement.” (Ibid.)

Gentry‟s conclusion that Turner‟s later statement to the police was 

admissible as a prior consistent statement focuses on two factors; that at the time 
48

of his initial silence he suffered from an incapacity that prevented him from 

speaking and that he made the prior consistent statement at the “earliest 

opportunity” after the incapacity was removed. (Gentry, supra, 270 Cal.App.2d at 

p. 747.) In this case, Mindy‟s failure to report defendant‟s assault on her to his 

relatives can easily be explained by a concern for her safety; namely, she may not 

have been inclined to alert defendant‟s relatives to the kidnapping and assault for 

fear of repercussions from defendant. Once she was no longer incapacitated by 

fear of defendant, she recorded the incident in her diary and told her teacher about 

it two days later. This time frame falls within Gentry‟s “earliest opportunity” 

limitation. (Ibid.)15

Accordingly, we conclude that the trial court properly admitted Mindy‟s 

diary entry and her statement to her teacher as prior consistent statements.

C. Sufficiency of the Evidence Supporting Defendant’s Conviction of 

First Degree Murder

The prosecution‟s theory of defendant‟s liability was that he orchestrated 

Mindy‟s murder while in custody on the assault and kidnapping case in retaliation 

for her preliminary hearing testimony in that case and to prevent her from 

testifying against him at the trial of those charges. Because defendant was not the 

 

15 Although Mindy was interviewed by the police before she made the diary 

entry, there was no evidence of what she told the police. The officer who spoke to 

her did testify that she was upset and nervous and that she wept while he was at 

her residence. She was then taken to the police station where her injuries were 

photographed. From the officer‟s testimony, one can surmise that Mindy was still 

traumatized when she spoke to the police, that is, still to some degree 

incapacitated by the events. Accordingly, we would not deem inadmissible her 

diary entry on the ground that her “earliest opportunity” to speak would have been 

when police interviewed her. (People v. Gentry, supra, 270 Cal.App.2d at p. 474.) 

Rather, the officer‟s description of her emotional state and the photographs of her 

physical injuries corroborate her diary entry in the same way that the officer‟s 

testimony in Gentry corroborated Turner‟s statement. (Ibid.) 
49

shooter, the prosecution theorized that he was guilty of murder as an aider and 

abettor or a coconspirator and the jury was so instructed. Defendant contends 

there is insufficient evidence to support his conviction of first degree murder as an

aider and abettor. We conclude that the evidence sufficed.

As we have explained, “[w]hen a defendant challenges the sufficiency of 

the evidence,„ “[t]he 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.]‟ [Citations.] . . . „Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn from that evidence. 

[Citation.]‟ [Citation.] We „ “ „presume in support of the judgment the existence 

of every fact the trier could reasonably deduce from the evidence.‟ ” [Citation.]‟ 

[Citation.]” (People v. Clark, supra, 52 Cal.4th at pp. 942-943.)

“The elements of a charge of murder are an unlawful killing with malice 

aforethought.” (People v. Catlin (2001) 26 Cal.4th 81, 139.) Murder perpetuated 

by any kind of willful, deliberate and premeditated killing with express malice 

aforethought, or that is immediately preceded by lying in wait is murder in the first 

degree. (§ 189.) Here, the jury was instructed with both these theories of first 

degree murder. Defendant does not challenge the sufficiency of the evidence to 

prove first degree murder. His concern is with his liability for that offense.

A person may be liable for a criminal act as an aider and abettor. Section 

31 defines “principals” in a crime to include persons who “aid and abet in its 

commission, or, . . . have advised and encouraged its commission.” (§ 31.) This 

court has interpreted section 31 to require that an aider and abettor must act with 

“knowledge of the direct perpetrator‟s unlawful intent and an intent to assist in 

achieving those unlawful ends, and . . . conduct by the aider and abettor that in fact 
50

assists the achievement of the crime. [Citation.]” (People v. Perez (2005) 35 

Cal.4th 1219, 1225.)

Defendant contends there was insufficient evidence that he was a principal 

under section 31 because there was no direct evidence that he instigated the 

murder or encouraged or advised its commission. His contention fails. 

Preliminarily, the substantial evidence rule does not require that the evidence 

supporting defendant‟s conviction be direct evidence. For purposes of the rule, 

substantial evidence encompasses circumstantial evidence and any reasonable 

inferences to be drawn from such evidence. (People v. Clark, supra, 52 Cal.4th at 

p. 943.) 

There is no question that the evidence shows defendant had a strong motive 

for the murder: to retaliate against Mindy for testifying against him at the 

preliminary hearing on the assault and kidnapping case and to prevent her from 

testifying at trial. This was demonstrated by his call to Sandra Ramirez before the 

preliminary hearing in which he told Ramirez to tell Mindy not to go to court,

followed by his second call to Ramirez in which he asked her to come to court and 

pick up a letter from him to Mindy; by the disturbance he caused at the 

preliminary hearing when, during Mindy‟s testimony, he said, “I don‟t have to sit 

here and listen to this shit”; and by his statement to police after the killing that he 

was angry about Mindy‟s testimony at the preliminary hearing. The presence of 

motive is a circumstance that may establish guilt. (People v. Estep (1996) 42 

Cal.App.4th 733, 738.)

There was also strong evidence of defendant‟s active involvement in the 

murder even though he was in custody. Defendant orchestrated Mindy‟s presence 

at the alley where she was murdered by insisting that Mindy‟s friend “Happy” be 

initiated into the girls‟ gang in the alley rather than in the park where the girls had 

originally planned to jump her into the gang. Documentary evidence 
51

demonstrated that one and two days before the shooting and on the day of the 

shooting calls were made from where defendant was being held in custody to his 

family‟s residence where his brother Ricardo lived. 

Moreover, Patty Lopez, the sister of defendant and Ricardo, told police she 

had arranged a three-way call between defendant and Uribe — who supplied the 

weapon — in the days before the killing. The jury could reasonably have inferred 

from this evidence that the subject matter of defendant‟s conversation with 

Ricardo and Uribe was Mindy‟s murder. The jury could reasonably also have 

concluded that defendant‟s insistence that Mindy be brought to the alley was part 

of the plot. There also was defendant‟s question to gang member Alma Cruz the 

day before the shooting in which he asked her whether she could kill a “homegirl,”

followed by his statement, “I already have someone doing it for me.” The jury 

reasonably could have inferred that the “homegirl” in question was Mindy.

Subsequent to the shooting, defendant acted and made statements in a 

manner from which the jury reasonably could have inferred consciousness of guilt

that, in turn, provided additional evidence of his participation in the killing as a 

principal. The day after the shooting, defendant called Sandra Ramirez and asked 

her, “What happened?” When she told him Mindy had been killed, instead of 

professing shock or grief, he asked her if she knew where Ricardo was and hung 

up when she said she did not. In a second call later that day, defendant asked her 

if she had spoken to police, and advised her not to say anything to them. When 

interviewed by police approximately two weeks after the shooting, defendant lied 

when he was asked when he had learned about Mindy‟s killing. He told Detective 

Oppelt he had learned about it only one week after it had happened. Defendant 

also lied about not having spoken to either his brother or Uribe in the days before 

the shooting. Defendant also initially lied to police about whether he had spoken 

to Ramirez, but then admitted he had talked to her about initiating a girl into the 
52

gang. This statement corroborated Ramirez‟s testimony that she and defendant 

had spoken about this matter. Around the time Mindy was shot, the number 187 

was sent to her pager. Defendant spontaneously volunteered to police that Mindy 

had complained to him about the number appearing on her pager and he said he 

had told her the message was not from his family. From the fact that defendant 

admitted knowing about this incident and went out of his way to exculpate 

himself, the jury could have inferred the message originated from him or at his 

behest.

Viewed in the light of the substantial evidence rule, the evidence was more 

than sufficient for the jury to have concluded that defendant instigated Mindy‟s 

killing, assisted in its planning, and advised and encouraged his brother to carry it 

out and was therefore guilty of first degree murder as a principal under an aiding 

and abetting theory.

As noted, the prosecution alternatively argued that defendant could be 

convicted of Mindy‟s murder under a conspiracy theory. Although defendant does 

not specifically challenge the sufficiency of the evidence to support that theory, to 

the extent his argument may encompass such a claim, we reject it. “One who 

conspires with others to commit a felony is guilty as a principal. (§ 31.) „ “Each 

member of the conspiracy is liable for the acts of any of the others in carrying out 

the common purpose, i.e., all acts within the reasonable and probable 

consequences of the common unlawful design.” [Citations.]‟ ” (In re Hardy 

(2007) 41 Cal.4th 977, 1025-1026.)

The same evidence that supports defendant‟s conviction of first degree 

murder on an aiding and abetting theory also supports his conviction on a 

conspiracy theory of liability. That evidence shows defendant conspired with his 

brother to kill Mindy and was personally responsible for luring Mindy to the alley 

where she was shot to death. Additionally, defendant is liable for Mindy‟s murder 
53

based on the acts taken by Ricardo to carry out the crime that was the object of the 

conspiracy.

Defendant offers alternative and innocuous explanations of the evidence 

that supports his conviction. Under the substantial evidence rule, however, “ „if 

the circumstances reasonably justify the jury‟s findings, the judgment may not be 

reversed simply because the circumstances might also reasonably be reconciled 

with a contrary finding.‟ [Citation.] Accordingly, we need not — and do not —

address all of defendant[‟s] assertions of conflict[] in the evidence, or [his] 

alternative theories regarding the inference[] that should have been drawn from the 

evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)

We conclude that substantial evidence does establish that defendant was a 

principal to the crime and therefore supports his conviction of first degree murder.

D. Claim of Prosecutorial Misconduct in Guilt Phase Closing 

Argument

Defendant contends the prosecutor committed misconduct during closing 

argument by disparaging his attorney and by arguing facts not in evidence. We 

reject his claim.

“ „A prosecutor‟s misconduct violates the Fourteenth Amendment to the 

United States Constitution when it “infects the trial with such unfairness as to 

make the conviction a denial of due process.” [Citations.] In other words, the 

misconduct must be “of sufficient significance to result in the denial of the 

defendant‟s right to a fair trial.” [Citation.] A prosecutor‟s misconduct that does 

not render a trial fundamentally unfair nevertheless violates California law if it 

involves “the use of deceptive or reprehensible methods to attempt to persuade 

either the court or the jury.” [Citations.]‟ [Citations.]” (People v. Clark, supra, 

52 Cal.4th at p. 960.) “Generally, a claim of prosecutorial misconduct is 

preserved for appeal only if the defendant objects in the trial court and requests an 
54

admonition, or if an admonition would not have cured the prejudice caused by the 

prosecutor‟s misconduct. [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 

726, italics added.)

Defendant‟s first claim of prosecutorial misconduct involves statements 

made by the prosecutor at two points during his closing argument, which he argues

disparaged defense counsel. “Personal attacks on opposing counsel are improper 

and irrelevant to the issues.” (People v. Sandoval (1992) 4 Cal.4th 155, 184.)

Commenting on defense counsel‟s assertion that the prosecutor had invited 

the jury to base its verdict on speculation, the prosecutor suggested it was defense 

counsel who wanted the jury to speculate. He added, “counsel has looked you in 

the eye unblinkingly and just said straight out, butter wouldn‟t melt in their 

mouths, and I want you to think about — .” Ricardo‟s counsel immediately 

objected. The court sustained the objection. A few pages later in the transcript, 

responding to the defense argument that the prosecutor had asked the jury to 

speculate that it was defendant who broke into Margarite Pile‟s car, the prosecutor 

said: “How do you know [defendant] was in the car? Now, this is what I‟m 

talking about. I thought [defendant‟s counsel] was in the courtroom during 

[Pile‟s] testimony —.” Defense counsel objected to the “disparaging remark about 

counsel,” and the objection was sustained. 

Defendant contends the prosecutor committed reversible misconduct by 

attacking his attorney‟s integrity and implying that he was lying to the jury. The 

Attorney General argues that defendant has forfeited his argument regarding the 

first allegedly disparaging remark because cocounsel, and not defendant‟s counsel, 

made the objection. But the prosecutor‟s statement that “butter wouldn‟t melt in 

their mouths” appears to have been directed at both counsel. Once cocounsel‟s 

objection was sustained, it would have served no purpose for defendant‟s attorney 

to independently object. Under these circumstances, we find no forfeiture on the 
55

ground that defendant‟s counsel failed to object. However, as noted, to preserve 

the issue of prosecutorial misconduct on appeal, the defendant must both object 

and request a curative admonition unless such admonition would have failed to 

cure to any prejudice. (People v. Ledesma, supra, 39 Cal.4th at p. 726.) 

Defendant‟s failure to request a curative admonition as to either of the allegedly 

disparaging statements forfeits the claim. (People v. Stanley (2006) 39 Cal.4th 

913, 942 [defense counsel‟s failure to request admonition after objecting to 

prosecutor‟s guilt phase rebuttal argument forfeits the claim on appeal]; People v. 

Montiel (1993) 5 Cal.4th 877, 914.) In any event, the claim is meritless. The 

remarks in question were fleeting and rather obscure. Even if they constituted 

misconduct, they do not constitute the type of deceptive and reprehensible 

methods that require reversal. (See People v. Sandoval, supra, 4 Cal.4th at p. 184 

[prosecutor‟s comments denigrating defense counsel were a small part of the 

prosecutor‟s argument and did not require reversal].) Morever, the court sustained 

objections to the two comments that defendant claims constitute misconduct. 

(People v. Hill (1998) 17 Cal.4th 800, 845 [“[A]s to some of Morton‟s acts of 

misconduct, Blum objected and the trial court sustained the objection, thereby 

diminishing the prejudice flowing from that particular misconduct”].) 

Defendant‟s second allegation of prosecutorial misconduct asserts that the 

prosecutor argued facts not in evidence. “The prosecutor should not, of course, 

argue facts not in evidence.” (People v. Osband (1996) 13 Cal.4th 622, 698.)

During defense counsel‟s own closing argument, he attacked the credibility 

of Mindy‟s fellow gang members, Sandra Ramirez and Alma Cruz, regarding their 

testimony that defendant had asked Cruz whether she would kill a “homegirl.” In 

rebuttal, the prosecutor argued that, had Ramirez and Cruz wanted to falsely 

implicate defendant in the murder “why [didn‟t] they just come straight out and 

say it? If they really wanted to get this guy, for God knows what reason, why 
56

didn‟t they say [defendant] said, hey, I‟ve got Ricardo and [Uribe] working on it?” 

Defendant‟s counsel objected that the prosecutor was arguing facts not in 

evidence. The objection was overruled. 

Defendant contends the prosecutor‟s argument was improper because it 

assumed the two women knew that Ricardo and Uribe were both implicated in the 

crime when the only evidence implicating Uribe was Ricardo‟s statement, which 

was not admitted against defendant. He claims that this amounted to arguing facts 

not in evidence. We disagree. The evidence showed that Uribe was with Ricardo 

when Ramirez, Cruz, and the other girls arrived in the alley where Mindy was 

shot. Uribe also was present when Ricardo chastised Ramirez for bringing the 

other girls because “you know what‟s going to happen,” and when he told her that 

“if anything happened to say it was a drive by.” Uribe was there when Ricardo 

removed the gun from his waistband, pointed it at Ramirez and said he was going 

to shoot her. It was Uribe who went over to Mindy and told her that Ricardo 

wanted to talk to her. The prosecutor could properly invite the jury to infer that 

Ramirez and Cruz surmised Uribe was part of the plan to kill the victim. (People 

v. Mitcham, supra, 1 Cal.4th at p. 1052 [the prosecutor may argue his or her view 

of the inferences to be drawn from the evidence].) Accordingly, the prosecutor‟s 

rehabilitation of the witnesses‟ credibility by pointing out that, had they wanted to 

implicate defendant, they could have done so more directly, was not misconduct. 

E. Claims of Guilt Phase Instructional Error

1. Motive instruction

Defendant contends the standard instruction on motive given in this case 

(CALJIC No. 2.51) improperly shifted the burden of proof. The jury was 

instructed as follows: “Motive is not an element of the crime charged and need 

not be shown. However, you may consider motive or lack of motive as a 
57

circumstance in this case. Presence of motive may tend to establish a defendant is 

guilty. Absence of motive may tend to show that a defendant is not guilty.” 

“[T]he instruction did not shift the burden of proof. It merely told the jury it may 

consider the presence or absence of motive. [Citations.] The motive instruction 

. . . did not undercut other instructions that correctly informed the jury that the 

prosecution had the burden of proving guilt beyond a reasonable doubt.” (People 

v. Cleveland (2004) 32 Cal.4th 704, 750.) We decline defendant‟s invitation to 

revisit these conclusions.

2. Consciousness of guilt instructions

Defendant contends the consciousness of guilt instructions given in this 

case regarding false statements and suppression of evidence (CALJIC Nos. 2.03 &

2.06) were impermissibly argumentative and allowed the jury to convict him based 

on improper inferences. As given here, CALJIC No. 2.03 provided: “If you find 

before this trial a defendant made a willfully false or deliberately misleading 

statement concerning the crimes for which he is now being tried, you may 

consider such statement as a circumstance tending to prove a consciousness of 

guilt. However, that conduct is not sufficient by itself to prove guilt, and its 

weight and significance, if any, are matters for you to determine.” CALJIC 

No. 2.06 essentially tracks CALJIC No. 2.03 with respect to the suppression of 

evidence “such as the intimidation of a witness and/or by concealing evidence.” 

As defendant acknowledges, we have repeatedly rejected the same argument in 

other cases. (People v. Stitely (2005) 35 Cal.4th 514, 555 [CALJIC No. 2.03 is 

neither argumentative nor does it “generate an irrational inference of 

consciousness of guilt”]; People v. Holloway (2004) 33 Cal.4th 96, 142 [neither 

CALJIC No. 2.03 nor CALJIC No. 2.06 is argumentative or fundamentally 
58

unfair].) These conclusions apply with equal force to the case before us and 

defendant provides no persuasive reason for reconsidering the issue.

F. Penalty Phase Issues 

1. Prosecutorial misconduct

Defendant contends the prosecutor committed misconduct during his 

closing argument in the penalty phase by (1) asserting that imposition of the death 

penalty on defendant was necessary to protect witnesses who had testified against 

him, (2) contending that the rule of law required imposition of the death penalty, 

and (3) contrasting defendant‟s life in prison with the victim‟s family‟s loss. We 

find no misconduct.

We previously have set forth the applicable legal standard in our review of 

defendant‟s claims of prosecutorial misconduct at the guilt phase. (See ante, pt.

II.D.) The same standard applies to asserted misconduct at the penalty phase. 

(People v. Williams (2010) 49 Cal.4th 405, 464.)

a. Urging imposition of the death penalty to protect witnesses

Defendant contends that the prosecutor improperly argued that the death 

penalty was necessary in order to protect Mindy‟s fellow gang members, Sandra 

Ramirez and Alma Cruz. Specifically, he cites the prosecutor‟s statements that 

defendant had subjected the witnesses to a continuing nightmare and that the jury 

must protect them. Defendant contends that these remarks conveyed to the jury 

that the system had failed Mindy and the only way the jury could prevent 

defendant from posing a future danger to the witnesses was to return a death 

sentence. We conclude the argument was not improper.

In the prosecutor‟s discussion of the circumstances of the crime as a factor 

in aggravation, he referred to evidence that defendant had employed other people 

to carry out the murder. For example, he pointed out that that defendant got his
59

“own younger brother” to do the shooting. He continued, “Who else did he leave 

in his wake here? Look at the witnesses in this case. [¶] Look at Sandra Ramirez 

and Alma Cruz. Look at what position they were put in.” This remark drew a 

defense objection on the ground of “[i]mproper argument,” which was overruled. 

The prosecutor went on, “The circumstances surrounding this offense, he arranged 

through them, using them to get someone that was their friend in a position to be 

killed. And during that conversation what is he talking about? He‟s talking about 

the Mexican Mafia. He‟s talking about dues. He‟s talking about killing 

homegirls. And then afterwards they‟re told not to say anything. They still had 

enough courage to do the right thing, but it took a lot of courage. [¶] So when 

does their nightmare end? When do they stop looking over their shoulders?” 

The prosecutor spoke again about witness killing when discussing the

special circumstance that the victim was a witness to defendant‟s crimes and 

intentionally killed for that reason. He argued: “This is a horrible crime. It goes 

to the very heart and soul of our system, the killing of a witness, not only that, a 

child. Not only that, it is reached from beyond the walls of a custodial facility to 

the outside . . . .” Continuing in this vein, the prosecutor explained that killing a 

witness was a special circumstance on par with “torture” and “multiple murders” 

warranting the “ultimate penalty” because “things like the murder of a witness, of 

a juror, of a judge . . . go right to the very core of our system, that system that we 

rely upon that allows the families and allows people to put trust in this system that 

says yes, we can approximate justice . . . .” 

The prosecutor returned to the theme of witness killing after a recess. He 

pointed out that “[t]he system can‟t function if people are killed and cannot testify, 

or if they testify and then are killed and not able to answer the lies that are 

presented. The system cannot function if people are too afraid to come to court 

and tell the truth and to do the right thing.” Referring to Mindy, he noted, “She 
60

said she was afraid of this man. She still testified, and when she testified, what is 

she looking for? The protection of this system. And we didn‟t protect. She‟s 

dead now.” Referring to the witnesses in this case, including Sandra Ramirez, 

who “have courage to try and do the right thing,” the prosecutor asked the jury to

“think about what trust these witnesses . . . place in us.” He told the jury, “make 

sure that, through your search of justice and through your looking at what is the 

appropriate penalty, that that trust is not misplaced.” The prosecutor continued: 

“You look at the defendant and you‟ll have to say to him, I know what you are, I 

know what you‟ve done. And we will not, we cannot, if we‟re to survive as a 

society, tolerate this. It cannot be done. It cannot be accepted. You have to say to 

him very clearly that this was way over the line. And that if you have anything to 

say about it at all, he will never be put in a position where he will be able to do 

this again.” At that point, defendant‟s counsel objected again, asserting the 

argument was improper. The court indicated the objection was noted and the 

prosecutor resumed, asking the jury “to consider the courage of the witnesses that 

have come forward and talked about what has happened to them, what they have 

seen, what they have done . . . . And if they had the courage to put their faith and 

their trust in this system, I‟m asking you to . . . look at your hearts and come back 

and say, justice demands this. We know what justice demands, and justice 

demands nothing less than the ultimate penalty [for] this defendant. Justice 

demands the death penalty.” 

We reject defendant‟s claim that these remarks constituted an emotional 

plea to the jury to assume personal responsibility for the safety of the 

prosecution‟s witnesses by returning a death verdict. Rather, the point of the 

prosecutor‟s argument was that a system in which witnesses are killed or 

threatened with death cannot function and, therefore, the death penalty is required 

to deter people like defendant from killing witnesses and compromising the 
61

integrity of the system. A prosecutor is entitled to “assert that the community, 

acting on behalf of those injured, has the right to express its values by imposing 

the severest punishment for the most aggravated crimes,” so long as those 

comments are “not inflammatory,” do not “seek to invoke untethered passions,” 

and do not “form the principal basis of his argument.” (People v. Zambrano 

(2007) 41 Cal.4th 1082, 1179.) Moreover, to the extent the argument was a 

comment on defendant‟s future dangerousness, such argument was permissible. 

“ „[I]n closing argument a prosecutor may . . . comment on the possibility that if 

the defendant is not executed he or she will remain a danger to others. . . . [if] . . . 

such comments . . . are supported by the evidence.‟ ” (People v. Michaels (2002) 

28 Cal.4th 486, 540-541.) The argument was proper in this case based on the 

evidence that defendant had engineered Mindy‟s murder while he was in custody. 

We find no misconduct.

b. Preserving the rule of law

We likewise reject defendant‟s related claim that the prosecutor‟s argument 

regarding the propriety of the death penalty for witness killing was necessary to 

preserve the rule of law. Defendant asserts that the prosecutor‟s argument 

suggested to the jury that witness killing required the death penalty in every case 

notwithstanding the existence of the alternative of life without possibility of 

parole. It is true the prosecutor argued that killing a witness warrants the death 

penalty because such an act strikes at the heart of the justice system. That 

argument was not improper. (People v. Zambrano, supra, 41 Cal.4th at p. 1179.) 

The defense could and did offer a different view. The jury was free to come to its 

own conclusion about which punishment was appropriate. Nor do we agree with 

defendant that the argument improperly appealed to the jurors‟ emotions because 

it suggested the death penalty for witness killing was necessary for society‟s 
62

survival. “ „ “Unlike the guilt determination, where appeals to the jury‟s passions

are inappropriate, in making the penalty decision, the jury must make a moral 

assessment of all the relevant facts as they reflect on its decision. [Citations.] 

Emotions must not reign over reason and, on objection, courts should guard 

against prejudicially emotional argument. [Citation.] But emotion need not, 

indeed, cannot, be entirely excluded from the jury‟s moral assessment.” 

[Citation.]‟ ” (People v. Jackson (2009) 45 Cal.4th 662, 691.) We conclude that 

the prosecutor‟s argument did not constitute prejudicially emotional argument and 

was not misconduct.

c. Comparing life without parole to the victim’s family’s 

permanent loss

Defendant contends finally that the prosecutor committed misconduct when 

he contrasted the kind of life defendant might enjoy in prison with the impact of 

Mindy‟s death on her family, contending that the argument constituted an 

inflammatory call for vengeance and a misuse of victim impact testimony. We 

conclude there was no misconduct.

Over defense objection, the prosecutor asked the jury to consider the 

meaning of life without the possibility of parole, saying, “I want you to think 

about when you‟re a lifer and you‟re in prison, what are you doing [?] What can 

you do? Can you read? Can you watch T.V.? Can you work out? Can you have 

friends? It might be monastic, but do you have a life? Do you continue to breathe 

the air that is on the earth? Do you continue to think? Do you continue to write to 

your friends and family? Do you have visits? Do you have a life? . . . On 

holidays or whatever, can your family come and see you? [¶] If Mindy‟s family 

wants to visit her, they can‟t. If they want to talk to — well, I take that back 

because they can go to the grave site, and what a bleak and lonely experience that 

must be, to see the — visit the grave of your child. And when they talk to her, I 
63

know that they hope and they pray that she‟s listening and hearing their words, but 

it‟s not the same as holding your child or holding your grandkids.” The defense 

objected that the prosecutor‟s remarks constituted an improper appeal to the 

jurors‟ emotions and were also a call for vengeance. 

We observe initially that a prosecutor may properly argue that “the 

community, acting on behalf of those injured, has the right to express its values by 

imposing the severest punishment for the most aggravated crimes.” (People v. 

Zambrano, supra, 41 Cal.4th at p. 1179, italics added.) As we also observed in 

Zambrano, “[r]etribution on behalf of the community is an important purpose of 

all society‟s punishments, including the death penalty. [Citations.]” (Id. at 

p. 1078.) Therefore, a prosecutor may argue for imposition of the death penalty as 

“a valid form of community retribution or vengeance,” (ibid.) so long as the 

argument does not seek to “invoke untethered passions, or to dissuade jurors from 

making individual decisions . . . .” (Id. at p. 1179; accord, People v. Martinez 

(2010) 47 Cal.4th 911, 966.)

Moreover, with respect to the use of victim impact evidence, a prosecutor 

does not commit misconduct in closing argument when he or she refers to such

evidence to “urge the jurors to rely on it in voting to impose the death penalty.” 

(People v. Brown (2004) 33 Cal.4th 382, 400.) In this case the prosecutor‟s 

allusions to the impact of Mindy‟s death on her family, including his reference to 

the family‟s graveside visits, were based on properly admitted victim impact 

evidence. 

In light of these principles, we conclude that the prosecutor did not commit 

misconduct when he called for imposition of the death penalty on defendant, 

rather than life in prison, because of the permanent loss his murder of Mindy had 

inflicted on her family. Nor do we find that the prosecutor‟s argument sought to 

invoke the jury‟s “untethered passions” or “dissuade jurors from making 
64

individual decisions.” (People v. Zambrano, supra, 41 Cal.4th at p. 1179.) The 

prosecutor did no more than argue from the evidence that justice in this case could 

be served only by imposition of the death penalty. To do so was not misconduct.

2. Instruction on restraints

Defendant contends that the trial court committed reversible error by failing 

to instruct jurors in arriving at their verdict during the penalty phase to disregard 

the fact that defendant had been restrained in the courtroom. We conclude there 

was no error or, if error, no prejudice.

The record shows that at one point during the guilt phase trial, defendant 

and his brother created a ruckus in the courtroom outside the presence of the jury. 

As a result they were both placed in restraints and belted into their seats. At the 

time the trial court ordered the restraints, it observed that the restraints would not 

be visible to the jury “unless the defendants make it so.” During the penalty 

phase, Deputy Sheriff Perez, who had been involved in an altercation with 

defendant at the county jail, was asked to describe how she had handcuffed him on 

the day of that incident. She testified: “With the chains in my hand. They‟re 

similar — I don’t know what he’s wearing now, but it‟s a handcuff on each end 

and it — it‟s got a chain, and I was holding him like this.” There was no defense 

objection to this testimony.

Defendant now contends that in light of the deputy sheriff‟s testimony, the 

trial court should have instructed the jury on its own motion to disregard the fact 

that defendant was in restraints. In support of this claim he relies on People v. 

Duran (1976) 16 Cal.3d 282 (Duran). Under Duran, “[i]n those instances when

visible restraints must be imposed the court shall instruct the jury sua sponte that 

such restraints should have no bearing on the determination of the defendant‟s 

guilt. However, when the restraints are concealed from the jury‟s view, this
65

instruction should not be given unless requested by defendant since it might invite 

initial attention to the restraints and thus create prejudice which would otherwise 

be avoided.” (Id. at pp. 291-292.) Here, defendant points to nothing in the record 

suggesting that the restraints were visible to the jury. In the absence of evidence 

the jury saw defendant‟s restraints, the court had no duty to instruct. (People v. 

Lightsey (2012) 54 Cal.4th 668, 721.)

Defendant cites no authority for the proposition that a witness‟s fleeting 

and ambiguous reference to the possibility a defendant might be in restraints 

triggers the same duty to instruct. Indeed, the Attorney General contends that 

“there is [sic] no indications that the restraints were visible to the jury.” This 

assertion is supported by the trial court‟s observation when it ordered the restraints 

that unless the defendants “make it so,” the restraints would not be visible to the 

jury. It is not even clear from the record whether Deputy Sheriff Perez actually 

saw defendant‟s restraints (and if she did, when she did) or whether she simply 

assumed he was restrained. In these circumstances, an instruction may have 

achieved the opposite result than was intended by Duran by calling attention to 

defendant‟s restraints when, otherwise, the jury would have been unaware of them.

Even were we to conclude that the witness‟s passing mention of restraints 

triggered the court‟s duty to instruct, any error was harmless. The purpose of 

requiring the instruction is to prevent the jury from inferring that, because a 

defendant charged with a violent crime is restrained, he is “a violent person 

disposed to commit” the charged crime. (Duran, supra, 16 Cal.3d at p. 290.) 

Where, however, as here, a defendant has been convicted of a special 

circumstance murder, the rationale requiring a sua sponte instruction is no longer 

applicable. (People v. Medina (1990) 51 Cal.3d 870, 898 [“the risk of substantial 

prejudice to a shackled defendant is diminished once his guilt has been 

determined”].) As we observed in similar circumstances in People v. Slaughter 
66

(2002) 27 Cal.4th 1187: “In the present case, the . . . penalty phase jury knew that 

defendant already had been found guilty of murdering two individuals during the 

commission of a robbery. Under any standard, it does not appear that the jury‟s 

penalty phase verdict would have been affected even if the jurors . . . concluded 

[the defendant] was wearing a restraint.” (Id. at p. 1214.) For the same reasons, 

any error here was harmless.

3. Instruction regarding guilt phase instructions

Defendant contends reversal is required because the trial court instructed 

the jury to disregard all guilt phase instructions in the penalty phase of the trial. 

(CALJIC No. 8.84.1.) Defendant argues that because the court‟s penalty phase 

instructions did not include a definition of “reasonable doubt,” the jury would not 

know it was required to apply that standard of proof in deciding whether it could 

consider as a factor in aggravation the prosecution‟s evidence that defendant had 

committed a battery while in custody. He further asserts that the instruction to 

disregard guilt phase instructions left the jury without standards by which to assess 

the credibility of witnesses or evaluate whether defendant‟s statements constituted 

confessions or admissions. We conclude that the trial court‟s failure to define 

“reasonable doubt” and reinstruct on the assessment of witness credibility and 

confessions and admissions was error but that defendant was not prejudiced.

The penalty phase trial lasted only one day. Defendant elected not to 

present a case in mitigation. The prosecution‟s case in aggravation consisted of 

victim impact testimony and the testimony of two sheriff‟s deputies regarding an 

incident in which defendant reacted violently when being moved from the jail 

infirmary to a disciplinary building.

Notably, the jury was instructed that before it could consider the jail 

incident as a factor in aggravation it had to find beyond a reasonable doubt that 
67

defendant committed the act. The court did not, however, provide a definition of 

“reasonable doubt.” The court‟s failure to reiterate the definition of “reasonable 

doubt” at the penalty phase was error. (People v. Cowan (2010) 50 Cal.4th 401, 

494; People v. Chatman (2006) 38 Cal.4th 344, 408.) And yet “its failure to do so 

was harmless. „Absent any suggestion to the contrary, the jury would likely have 

assumed the reasonable doubt the court referred to at the penalty phase had the 

same meaning as the term had during the guilt phase. There is no reasonable 

likelihood [citation] the jury would have believed the reasonable doubt analysis it 

was required to engage in at the penalty phase was somehow different than the 

reasonable doubt analysis it had already engaged in at the guilt phase. That the 

court would not have changed the meaning of such an important term without 

saying so is a “commonsense understanding of the instructions in the light of all 

that has taken place at the trial [that is] likely to prevail over technical 

hairsplitting.” [Citation.] Additionally, “the jury did not request a further 

explanation of the reasonable doubt standard, as it surely would have done had it 

been confused as to the meaning of reasonable doubt.” [Citation.]‟ [Citation.]” 

(People v. Loker (2008) 44 Cal.4th 691, 745-746; accord, People v. Cowan, supra, 

at pp. 494-495; People v. Lewis (2008) 43 Cal.4th 415, 534-535.) This analysis 

applies with equal force to the present case. The trial court‟s failure to reinstruct 

the jury with the previously given definition of “reasonable doubt” was harmless.

The court‟s failure to reinstruct the jury regarding how to assess witness 

credibility or how to determine whether defendant‟s statements were confessions 

or admissions is likewise error. (People v. Moon (2005) 37 Cal.4th 1, 37.) In 

assessing prejudice from the omission of such instructions at the penalty phase, we 

evaluate “ „the nature of the evidence presented to determine whether it was likely 

the omitted instructions affected the jury‟s evaluation of the evidence,‟ ” and 

where we have found the “evidence presented by both the prosecutor and the 
68

defendant at the penalty phase” to be “relatively straightforward,” we have 

concluded “defendant was not prejudiced by the omission of the instructions. 

[Citation.]” (People v. Souza (2012) 54 Cal.4th 90, 134.)

Here, the penalty phase evidence was relatively brief and quite 

straightforward. The only evidence that the defense might have controverted, and 

as to which the credibility and admissions and confessions instructions might have 

applied, was the testimony of the two sheriff‟s deputies regarding defendant‟s incustody altercation. Significantly, however, defense counsel‟s brief crossexamination of these witnesses did not question whether the altercation had 

occurred as they described it. Rather, counsel‟s approach was to minimize the 

incident. For example, he asked one witness about the extent of her injuries and 

whether she had to take off any time from work. Counsel pursued this strategy in 

his closing argument in which he referred briefly to the altercation and 

characterized it as a “relatively minor incident,” and suggested that it should be 

considered a factor in mitigation because it was the sole incident “in over a twoyear period that [defendant] has been incarcerated.” 

On this record, we conclude that the court‟s failure to redefine reasonable 

doubt and reinstruct on the evaluation of witness credibility and confessions and 

admissions by the defendant at the penalty phase did not prejudice defendant.

G. Challenges to the Death Penalty Statute

Defendant advances a number of challenges to the death penalty statute and 

related procedures. We have repeatedly rejected each in the past and we do so 

again, concluding:

“California‟s automatic appeals procedure is not unconstitutional on the 

ground that it fails to provide for intercase proportionality review.” (People v. 

Myles (2012) 53 Cal.4th 1181, 1224.)
69

“The California death penalty scheme is not constitutionally defective 

because it fails to require jury unanimity on the existence of aggravating factors, 

or because it fails to require proof beyond a reasonable doubt that death is the 

appropriate penalty, that aggravating factors exist, or that aggravating factors 

outweigh mitigating factors. [Citation.] The United States Supreme Court‟s 

decisions interpreting the right to a jury trial under the federal Constitution (see 

Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584) 

do not change these conclusions.” (People v. Thomas (2012) 53 Cal.4th 771, 835.)

“We repeatedly have held that the standard version of CALJIC No. 8.88 

[defining aggravating and mitigating factors and the scope of the jury‟s sentencing 

discretion] is adequate and correct. [Citations.] We decline to reconsider that 

issue here.” (People v. Souza, supra, 54 Cal.4th at p. 141.) Specifically, we reject 

defendant‟s claims that CALJIC No. 8.88 is unconstitutional because (a) the 

instruction‟s use of the phrase “so substantial” is so vague as to violate the Eighth 

and Fourteenth Amendments to the federal Constitution; (b) because the 

instruction unconstitutionally fails to require the jury to decide not only whether

death is an authorized punishment, but also whether it is the appropriate 

punishment; (c) the instruction fails to inform the jury that if it determines that the 

factors in mitigation outweigh those in aggravation, it must return a sentence of 

life without the possibility of parole; and (d) the instruction fails to inform jurors 

that defendant does not have the burden of persuasion that death is not the

appropriate penalty. (People v. Boyette (2002) 29 Cal.4th 381, 464-465; People v. 

Gurule (2002) 28 Cal.4th 557, 661-662.) 

Moreover, “[s]ection 190.3, factor (a), does not violate the federal 

Constitution‟s Fifth, Sixth, Eighth, and Fourteenth Amendments by its asserted 

application in a „ “wanton and freakish” ‟ manner that allows almost all features of 
70

every murder, even features „ “at odds,” ‟ to be characterized as aggravating.” 

(People v. Clark, supra, 52 Cal.4th at p. 1007.)

“ „The statutes are not invalid because they permit the jury to consider in 

aggravation, under section 190.3, factor (b), evidence of a defendant‟s 

unadjudicated offenses. [Citation.]‟ ” (People v. Fuiava (2012) 53 Cal.4th 622, 

732.) Moreover, the jury “need not make a unanimous finding on factor (b) 

evidence.” (People v. Brown, supra, 33 Cal.4th at p. 402.)

The trial court need not omit assertedly inapplicable sentencing factors. 

(People v. Fuiava, supra, 53 Cal.4th at p. 733.) Neither does the inclusion of 

terms such as “ „ “ „extreme‟ ” ‟ ” and “ „ “ „substantial‟ ” ‟ ” in the list of potential 

mitigating factors read to the jury “ „ “impermissibly limit the mitigation evidence 

or otherwise result in an arbitrary or capricious penalty determination.” ‟ ” (Id. at 

p. 732.) Nor is the statute invalid because the jury is not required to make written 

findings regarding the aggravating factors. (Ibid.) Finally, “ „ “[t]here is no 

violation of the equal protection of the laws as a result of the statutes‟ asserted 

failure to provide for capital defendants some procedural guarantees afforded to 

noncapital defendants.” ‟ ” (Ibid.; accord, People v. Souza, supra, 54 Cal.4th at 

p. 142.)

H. International Law

Defendant contends that his death sentence violates international law, 

covenants, treaties and norms that are binding on the United States. “We reject the 

assertion. „Because defendant has failed to establish prejudicial violations of state 

or federal constitutional law, we need not consider whether such violations would 

also violate international law.‟ [Citations.]” (People v. Myles, supra, 53 Cal.4th 

at p. 1225.)
71

I. Cumulative Effect of Asserted Errors

Defendant maintains that the cumulative impact of the asserted errors at the 

guilt and penalty phases rendered his trial fundamentally unfair. We have found 

no error except as to defendant‟s claim that the trial court erroneously admitted 

evidence of Ricardo‟s state of mind during the guilt phase and the trial court‟s 

failure to reinstruct the jury on the definition of reasonable doubt and on witness 

credibility, confessions, and admissions during the penalty phase (see ante, pts.

II.B.2., II.F.3). In addition, we have assumed without deciding that the court erred 

by allowing testimony about Mindy‟s demeanor during her testimony at the 

preliminary hearing at the guilt phase and by failing to instruct the jury on 

restraints at the penalty phase. (See ante, pts. II.B.5., II.F.2.) Our findings of 

error and our assumptions of error were accompanied by findings that defendant 

was not prejudiced. We also conclude defendant was not cumulatively prejudiced. 

CONCLUSION

We affirm the judgment in its entirety. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, 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. Lopez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S073597

Date Filed: June 13, 2013

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Meredith C. Taylor

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold Erickson, 

Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney, 

Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Theresa A. Patterson, Deputy 

Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Arnold Erickson

Deputy State Public Defender

221 Main Street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

Theresa A. Patterson

Deputy Attorney General

300 South Spring Street

Los Angeles, CA 90013

(213) 620-6004