Filed 2/6/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S080947

v. )

)

SONNY ENRACA, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. CR60333

____________________________________)

In May 1999, defendant Sonny Enraca was convicted of the first degree 

murders1 of Ignacio Hernandez and Dedrick Gobert, with a multiple-murder 

special-circumstance finding.2 Defendant was also convicted of assault with a 

deadly weapon3 on Jenny Hyon, with a great bodily injury finding.4 Firearm use5

and criminal street gang6 findings were made as to all three counts. Defendant 

was sentenced to death.7 

 

1 Penal Code section 187. All further statutory references are to the Penal 

Code unless otherwise indicated. 

2 Section 190.2, subdivision (a)(3). 

3 Section 245, subdivision (a)(2).

4 Section 12022.7, subdivision (a).

5 Section 12022.5, subdivision (a).

6 Section 186.22, subdivision (b)(1).

7 The court also sentenced defendant to a determinate term of 12 years: three 

years for the assault with a deadly weapon conviction, with a consecutive threeyear great bodily injury enhancement, plus consecutive terms of four years and 

two years for the firearm use and gang enhancements, respectively. The 

determinate term was ordered stayed pending execution of the death sentence. 
2

This appeal is automatic. We affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

The victims were shot during a gang fight in November 1994. Associates 

of both defendant and the victims testified for the prosecution. Defendant‘s 

companions identified him as the shooter, but the victims‘ companions were 

unable to do so. Defendant admitted to both his friends and the police that he shot 

the victims.

a. Testimony of the Victims’ Companions 

Late one evening Maile Gilleres and Jenny Hyon accompanied Ignacio 

Hernandez and Dedrick Gobert to the site of illegal street races. During one race 

Hernandez‘s car was cut off by an ―Asian‖ 8 driver. Both men got out of their cars 

and fought. At least 10 other Asians surrounded Hernandez, but when the police 

arrived, everyone drove away.

Gobert, Hernandez, Hyon, and Gilleres drove to a nearby pizza parlor. 

When they got out of their cars, the same group of Asians approached them and 

the two groups cursed at one another. One of the Asians, whom Gilleres described 

as a Filipino,9 pointed a gun at Hyon. He put the weapon away when a slightly 

older Asian man said something to him. Gilleres told the older man that she 

 

8 This is the term the witnesses used to refer to persons of Asian-PacificIslander heritage.

9 Gilleres testified that she was of mixed ―Hawaiian, Japanese, Mexican, 

[and] Filipino‖ heritage herself, and that she could generally distinguish members 

of various Asian-Pacific-Islander groups based on their physical appearance.
3

would get her group to leave if he and his friends did the same. He nodded in 

agreement and the two groups parted.

Gobert got into his car and drove up and down the street for several 

minutes. A different group of 15 to 35 Asians, dressed in red, started chanting, 

―Blood, blood, blood.‖ Gilleres assumed they were claiming to be members of the 

Bloods gang. Gobert parked and approached the group. Making hand signs 

indicating he was a member of the Crips gang, Gobert said to them, ―What‘s up, 

cuz?‖

A gang expert testified that it would be an insult for a member of a Crips 

gang to address members of a Bloods gang as ―cuz‖ because the term is used to 

refer to Crips. He further testified they would have lost credibility in the gang 

culture if they had failed to avenge such an insult. Therefore, an attack on Gobert 

carried out under these circumstances would be undertaken for the benefit of 

defendant‘s Akraho Boyz Crazzys (ABC) gang. 

The Asians immediately charged Gobert, threw him to the ground, and beat 

him. As Hernandez and Gilleres tried to shield him, gunshots rang out. Gilleres 

saw an Asian man shooting down at Hernandez. Hyon was struck by a bullet. As 

a result of a neck wound, she was paralyzed from the chest down.

Gilleres did not identify defendant in a pretrial photo lineup. She testified 

at trial that he was not the person she saw shoot Hernandez. Instead, the shooter 

appeared to be the person who had pointed a gun at Hyon in the preceding

incident. Hyon was unable to identify her assailant. She testified it was possible 

the shooter was the person who had earlier pointed a gun at her. 

b. Testimony of Defendant’s Companions

Among the prosecution witnesses were four of defendant‘s friends: Lester 

Maliwat, Roger Boring, Eric Garcia, and John Frick. Along with defendant, they 
4

were members of the ABC gang, an affiliate of the Bloods. Before driving to the 

street races that night, they had met at Boring‘s home, where defendant was living. 

According to Boring, defendant was ―drinking pretty heavily‖ and ―doing 

speed.‖10 Garcia testified that defendant used speed frequently and offered him 

some that night. According to Maliwat, defendant had a revolver with him.

After the races, the ABC gang members congregated in the parking lot of 

the pizza parlor. Gobert drove up, approached them, and made hand signs 

indicating he was a member of the Crips gang. He said, ―Fuck you, slobs.‖11 

According to one witness, he shouted, ―I‘m not afraid to die.‖ The ABC‘s, 

including defendant, just laughed at Gobert because he appeared to be intoxicated 

and was outnumbered 10 or 20 to one. Then Gobert stuck his hand into his 

waistband. Thinking he was reaching for a gun, Boring, Maliwat, and the other 

ABC‘s rushed him, knocked him down, and kicked him. According to Detective 

Schultz, Lester Maliwat told him defendant was involved in the fight. A passerby 

also told Schultz that ―the shooter‖ was involved in the fight and had ―gotten off 

the ground right prior to the shooting.‖ 

Boring testified that he saw defendant shoot Gobert. When Hernandez tried 

to shield Gobert with his body, defendant pulled him up and shot him, also. When 

Jenny Hyon kicked defendant in the back, he turned around and shot her.12

Maliwat testified that he ran away when he heard someone yell, ―He has a 

gun.‖ From his car Maliwat saw defendant shoot a man lying on the ground. He 

 

10 Defense expert Dr. James Rosenberg later clarified that ―doing speed‖ is a 

slang phrase for taking methamphetamine. 

11 Maliwat testified that ―slobs‖ was an insulting term Crips used for Bloods.

12 On cross-examination, Boring admitted he falsely told a defense 

investigator that he had not seen who fired the shots. He also admitted that he told 

the prosecutor‘s office what he thought it wanted to hear. 
5

could not see whether the victim was Gobert or Hernandez. Maliwat also saw a 

girl lying on the ground. As Maliwat began to drive away, defendant jumped in 

the car. Maliwat asked him why he shot the girl. Defendant said, ―Fuck them. 

They deserved it.‖13 

Eric Garcia saw the fight and heard the shots. Another participant told 

Garcia that defendant was the shooter. Garcia confronted defendant, demanding 

to know why he did it. Defendant initially refused to answer, but finally replied, 

―Maybe they deserved it.‖ Defendant gave Garcia a revolver but reclaimed it a 

few days later. Defendant then gave the gun to another ABC member, Mike Betts. 

Defendant later called Garcia from jail and said he had confessed. He said that he 

would be a man about it and did not want the other ABC‘s involved.

c. Defendant’s Confession 

Following his arrest defendant waived his Miranda rights.14 The 

interrogation ended when defendant subsequently asked for a lawyer. However, 

during the booking process, defendant waived his rights again and confessed to the 

booking officer, Detective Spidle. Defendant now contends his second waiver 

was not knowing and intelligent. The facts relevant to this claim will be set forth 

below. (Post, pt. II.A.) 

Defendant told Spidle the following. After the races, Gobert15 drove up 

and skidded to a halt in front of the ABC‘s. After apparently taking something out 

 

13 Maliwat had pleaded guilty to being an accessory after the fact. He had 

served his sentence and completed probation when he testified. He admitted lying 

repeatedly to law enforcement officers about this matter.

14 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

15 Defendant did not refer to the victims by name. He called Gobert, for 

example, ―the black guy.‖ However, the references are clear because he said they 

were the ―people that I shot.‖
6

of his car, Gobert walked up to them. He was ―claiming some crip gang‖ and 

―talking all sorts of shit.‖ Because they vastly outnumbered Gobert, the ABC‘s 

―just started giggling.‖ Gilleres told Gobert, ―[K]ick back, that‘s not them.‖ 

However, Gobert challenged the gang and lifted up his shirt as if he had a gun. 

After an ABC gang member shouted, ―[H]e‘s reaching, he‘s reaching,‖ someone 

punched Gobert, and they fell to the ground. When the other ABC‘s rushed 

Gobert, his companions Ignacio Hernandez, Jenny Hyon, and Maile Gilleres came 

to his defense. Defendant told Spidle that he tried to ―break it up.‖ 

Hernandez shielded Gobert‘s body with his own. Defendant grabbed 

Hernandez by the hair, pulled his head back, and asked him where he was from. 

When Hernandez hit his hand, defendant shot him with a .38-caliber revolver. 

Hernandez moved and defendant shot him again. Defendant claimed that before 

Hernandez hit him he had planned to shoot in the air to break up the fight. 

Defendant also claimed he was afraid Hernandez was about to shoot him with the 

gun that, defendant believed, Gobert was carrying. He admitted, however, that he 

never saw a gun. 

After Gobert cursed at him, defendant also shot Gobert. Defendant claimed 

he was also afraid Gobert was about to grab a gun, although again he had not seen 

one.

Jenny Hyon pushed defendant, saying, ―[F]uck you asshole, what are you 

doing.‖ She was about to hit him. Defendant pointed his gun at her and started 

walking backwards. When Hyon charged him, defendant shot her. He intended to 

fire in the air, ―like right by her or . . . over her head.‖ 

Defendant jumped into Lester Maliwat‘s car. As Maliwat drove back to his 

house, defendant threw the gun out the window. 
7

d. Forensic Evidence

When sheriff‘s deputies arrived at the scene Hernandez and Gobert were 

dead. Autopsies revealed they were shot from behind and died from their wounds. 

Hernandez was shot twice. One bullet entered his back and passed through his 

heart and lungs. The other entered the back of his head, went through his brain, 

and lodged underneath the skin of his forehead. Abrasions on Hernandez‘s 

forehead suggested he was shot facedown on a hard surface that blocked the 

bullet‘s exit. Gobert was shot once, in the back of the head. According to 

eyewitness Alfred Ward, defendant shot Jenny Hyon ―from behind‖ as well. The 

bullets recovered from Hernandez and Gobert were .38 caliber. 

2. Defense Evidence 

The defense called several eyewitnesses. Daryl Arquero, John Frick, and 

Cedrick Lopez were or had been members of the ABC gang. According to 

Arquero, Gobert claimed to be a Crip and said, ―Fuck you, slobs.‖ Frick and 

Lopez heard Gobert say he was not afraid to die. According to Arquero, Gobert

lifted his shirt and displayed a shiny object stuck in his pants. Frick and Lopez 

saw Gobert make a reaching movement, either lifting up his shirt or reaching 

inside his waistband. Arquero exclaimed, ―Oh, shit. I think he‘s got a gun.‖ The 

ABC‘s rushed Gobert. Arquero estimated that Gobert was shot two minutes 

later.16 All three testified they did not see who the shooter was.

The defense argued that eyewitness descriptions of the shooter‘s clothing 

did not match what defendant wore that night. Prosecution witness Lester 

Maliwat testified that defendant wore dark pants and a light blue shirt. Defense 

witnesses Marcus Freeman and Alfred Ward testified that the shooter wore a white 

 

16 Herman Flores estimated the time lapse at ―a minute or so.‖ 
8

hooded sweatshirt. However, Freeman said that the shooter put the sweatshirt on 

immediately before the shootings. Detective Larry Dejarnett, a prosecution 

rebuttal witness, testified that Ward told him the shooter wore a black hood and 

later said he was not sure what color the hood was.17

Defendant told Detective Spidle that at the time of the shootings he was 

―coming down‖ from two ―lines‖ of ―speed‖ he had taken earlier in the evening. It 

made him ―kind of scared, nervous.‖ Asked how much alcohol he had consumed, 

defendant told Spidle, ―maybe six,‖18 but that he was only ―buzzed‖ because ―it 

takes a lot for me to get drunk.‖

According to Eric Garcia, defendant showed him some speed that night and 

asked Garcia whether he wanted to use it with him. Garcia declined. He believed 

that defendant took some speed, but he was not certain.

Roger Boring testified that defendant ―was drinking‖ that night, but that he 

did not know whether defendant had ―a lot‖ to drink.

Dr. James Rosenberg, a psychiatrist who also specialized in 

psychopharmacology, testified for the defense. He had not tested or interviewed 

defendant. According to Dr. Rosenberg, methamphetamine use can cause very 

severe disturbances in thinking similar to those associated with paranoid psychosis 

or manic-depressive illness. ―[P]robably the most characteristic would be . . . an 

 

17 Defendant does not challenge the sufficiency of the evidence to support his 

conviction. Nevertheless, he calls attention to defense testimony suggesting that 

there was a second shooter at the scene. Twenty-two-caliber bullet casings were 

found nearby. However, the bullets recovered from the victims were .38 caliber. 

Defendant told the police he was carrying a .38 revolver that evening, and he 

confessed to the police and his friends that he used it to kill the victims. His 

friends testified that they saw him shoot the victims. That someone may have 

fired a .22 in the area, at some undetermined time, did not bolster defendant‘s 

case.

18 Defendant did not specify the type of alcohol or the size of the six units.
9

irrational fear that someone is trying to hurt you.‖ A minor threat may be 

perceived as a very severe and life-threatening situation. Methamphetamine use 

is believed to produce these symptoms by releasing ―adrenalin-type chemicals.‖ 

The half-life of methamphetamine is typically 11 hours. However, the effects of 

methamphetamine intoxication may last much longer, depending on the 

individual. In Rosenberg‘s opinion, a hypothetical description based on the facts 

of this case was consistent with methamphetamine intoxication. While the 

interactive effect of methamphetamine and alcohol was not well developed in the 

medical literature, alcohol intoxication would be another factor affecting judgment 

and impulse control. 

B. Penalty Phase

1. Prosecution Evidence

Jenny Hyon testified the bullet that struck her completely severed her spinal 

cord. As a consequence, she had difficulty breathing, could not tend to her bodily 

functions, and was confined to a wheelchair. She had no feeling below her chest, 

except for nearly constant pain in one arm that made sleeping difficult. She 

worried about who would care for her when her mother and younger sister could 

no longer do so. ―What kills me the most‖ were the sacrifices her mother had 

made for her.

Carmen Vera was Ignacio Hernandez‘s mother. Hernandez was 19 when 

he was murdered. He was a good boy, and a good student. He was not a gang 

member, nor did he use drugs. After he died, Vera received notice that he had 

been accepted to college in a mechanical engineering program. Hernandez‘s 

murder deeply grieved Vera and her younger son, Emanuel. Ms. Vera went to a 

psychiatrist for three years. For two and a half years, unable to bring herself to tell 
10

Emanuel of his brother‘s death, Vera told Emanuel that Hernandez was in New 

York with her family.

Carolyn Gobert was Dedrick Gobert‘s mother. He was 19 or 20 when he 

was murdered. An aspiring actor, Dedrick was in three movies, television shows, 

and a commercial. Ms. Gobert‘s whole life was changed by the murder. She was 

under psychiatric care, her attendance at work suffered, and she withdrew from her 

friends. Her younger son‘s performance in school also suffered greatly.

2. Defense Evidence 

The defense called witnesses who knew defendant during different periods 

of his life: (1) Defendant‘s extended family from the Philippines who cared for 

him until he was eight; (2) relatives who met defendant when he was 14 and 

moved to California with his mother and stepfather; and (3) the surrogate families 

defendant joined when he left home.19 Defendant‘s half sister Lilibeth, who first 

met him when he was eight, also testified.

Defendant‘s mother Shirley grew up in the Philippines. When Shirley was 

16 she gave birth to Lilibeth, but abandoned her to the care of her sister Pina. A 

year later, Shirley returned, pregnant with defendant. She consigned him to Pina‘s 

care also. Two years later, Shirley returned for Lilibeth, but not defendant.

In addition to defendant, Pina‘s family included her husband Raymond, 

their four children, and Raymond‘s parents ―Mamang‖ and ―Tatai.‖ All of them 

traveled from the Philippines to testify on defendant‘s behalf. The extended 

family provided a caring and affectionate home. Although they were not related to 

 

19 Because many of the witnesses shared last names we will refer to them by 

their first names or the informal names used by family members.
11

him by blood, Mamang and Tatai treated defendant as if he were their eldest 

grandson. 

When defendant was eight, Shirley returned and took him to Guam, where 

her husband Robert Harris was in the United States military. Defendant was 

heartbroken at leaving the only family he had ever known. 

According to Lilibeth, Shirley and Robert did not treat defendant like their 

other children. Shirley said that defendant was the product of rape.20 Shirley 

humiliated defendant by telling others of his bedwetting. She also held him up to 

ridicule for his tendency to twitch and have convulsions.

Robert was physically and emotionally abusive to Shirley and the children. 

Lilibeth feared Robert might kill her. He broke several of Shirley‘s bones, and 

struck defendant with a belt. The police were often summoned. Shirley and the 

children once sought refuge in a domestic violence shelter. The children were 

aware that Shirley and Robert had extramarital affairs.

When defendant was in the seventh grade the family moved from Japan to 

California. In addition to Lilibeth, Robert‘s mother, sister, and brother described 

defendant‘s family life at that time. Robert remained physically abusive. 

Defendant cried often, missed his grandmother, and wanted to return to the 

Philippines. Shirley again abandoned her children, leaving for New York. 

Lilibeth visited Shirley there, but defendant was not welcome.

While still in his middle teens, defendant left home, finding shelter with the 

families of ABC gang members. Their mothers became surrogate parents to him. 

Two of them testified. They loved defendant as a son and he responded in kind, 

calling them ―Mom‖ or ―Mother.‖ He was respectful and helpful. He cooked, did 

 

20 Pina testified that Shirley‘s rape story was untrue.
12

yard work, and cared for the younger children. Defendant assisted at a residential 

care facility for Alzheimer‘s patients managed by one of the women. 

Dr. Jean F. Nidorf testified as a cultural mental health expert. She based 

her opinions on interviews with defendant, members of his family, and his friends; 

police reports; investigative materials prepared by the public defender‘s office; a 

videotape and transcript of defendant‘s confession to Detective Spidle; and other 

materials.

In Nidorf‘s opinion, the ABC gang was a surrogate family, replacing the 

one defendant lost when he was taken from the Philippines. He lived with the 

families of gang members, ingratiating himself with their mothers. While 

defendant reported to Nidorf he felt welcomed, he moved frequently to avoid 

burdening their hospitality.

Within the gang defendant aspired to a role as peacemaker, moral 

conscience, and wise leader. He needed to feel important. He told Nidorf the 

gang members ―needed me.‖ She concluded he was grandiose about his role. 

Defendant related that he had been using speed almost every day. In 

Nidorf‘s experience, many Asian and Southeast Asian young people are drawn to 

speed to overcome anxiety about feeling small and weak.

Nidorf thought defendant appeared to express remorse in his videotaped 

statement to Detective Spidle. ―[H]e felt badly about what he had done. He didn‘t 

want people to do that anymore. He didn‘t want people to gangbang. He wanted 

them to go to church, and I saw that as remorse.‖ Based on her interviews with 

defendant, she concluded he ―sincerely felt that what he did was wrong and that he 

regretted it.‖ 
13

II. DISCUSSION

A. The Admissibility of Defendant’s Confession

As we explain in greater detail below, defendant was advised of his 

Miranda rights, waived them, and agreed to talk to Detectives Schultz and Horton. 

He denied responsibility for these crimes, then requested counsel. Interrogation 

stopped. Defendant later initiated a conversation with the booking officer, 

Detective Spidle, and confessed to him. 

Defendant contends his confession should have been suppressed on the 

following grounds: (A) Schultz continued to interrogate him after he requested 

counsel. (B) Schultz should have told him that he could consult with appointed 

counsel immediately, rather than telling him that counsel would be appointed 

when he was arraigned. (C) Schultz and Spidle failed to advise him of his rights 

under the Vienna Convention on Consular Relations (Apr. 24, 1963, 21 U.S.T. 77) 

and the bilateral consular convention between the United States and the 

Philippines. Defendant‘s claims lack merit. 

The evidence considered at the suppression hearing consisted of the 

testimony of Schultz and Spidle and the transcripts of their interviews with 

defendant.

1. Background

Defendant was arrested several weeks after the shootings. He had been in 

custody for two hours when questioning began. The officers knew that defendant 

was born in the Philippines, lived in the United States, and had a ―green card.‖ 

Schultz gave defendant the standard Miranda admonitions.21 Defendant said that 

 

21 ―[Schultz :] I read to him,  ̳You have the right to remain silent. Anything you 

say can and will be used against you in a court of law. [¶] You have the right to 

talk to a lawyer and have him present with you while you‘re being questioned. If 

(footnote continued on next page)
14

he understood his rights and wished to speak to them. Defendant said he read and 

understood English well. He initialed the boxes on the waiver form indicating that 

he understood his rights and that, with those rights in mind, wished to speak to the 

officers. Defendant also signed the form. Schultz did not notify the Philippine 

consulate of defendant‘s arrest, nor did he advise defendant of his right to such 

notification. 

The interview lasted 15 to 20 minutes and ended in a confrontation. 

Schultz told defendant that several eyewitnesses had identified him as the shooter, 

and that his ―only chance in life‖ was to tell the officers his side of the story. 

Defendant persisted in proclaiming his innocence and challenged Schultz to 

produce the witnesses.

―[Schultz]: I‘ve already talked to them[,] wise guy.

―[Defendant]: Shit.

―[Schultz]: And I‘[ve] about had it up to here with you cuz you‘re full of 

shit and that‘s it.

―[Defendant]: Okay, can I get an attorney then, huh?

―[Schultz]: You can get anything you want[,] turn around, you‘re going to 

jail for double homicides.

―[Defendant]: Yeah, yeah, yeah.

―[Schultz]: I don‘t need your yeah, yeah, do you understand me[,] from 

now on you are to shut your mouth[,] I don‘t want to hear another word out of 

you[,] do you understand that?

 

(footnote continued from previous page)

you cannot afford to hire a lawyer, one will be appointed to represent you before 

any questioning, if you wish one.‖
15

―[Defendant]: Yes sir.

―[Schultz]: Thank you.

―[Defendant]: Can I ask a question?

―[Schultz]: Only if it‘s polite.

―[Defendant]: When am I going to see my lawyer[?]

―[Schultz]: I don‘t know[.] I don‘t pay for your lawyer, you do.

―[Defendant]: I thought I was going to get appointed one.

―[Schultz]: You can, when you go to court and get arraigned, one will be 

appointed to represent you. [T]hat‘s when you can see your lawyer. Now I 

suggest[] for the next 48 hours, that you deeply consider that[.] Is that all clear[?]‖

Schultz broke off the interview and turned defendant over to Spidle for 

booking. Spidle had worked on the case, but had not been part of the 

interrogation. Schultz told Spidle that defendant had ―invoked,‖ which Spidle 

understood to mean that he had asked for counsel. In addition to photographing 

and fingerprinting defendant, Spidle permitted him to call his girlfriend. 

Throughout the booking interview defendant interrupted Spidle to ask 

questions or make comments. Defendant asked when he would get a lawyer. 

Spidle explained that if defendant was eligible, counsel would be appointed for 

him when he was arraigned, which would occur in 48 to 72 hours. Defendant 

asked whether a reward had been offered. Spidle replied he was not aware of one. 

Defendant said, ―You know, it‘s not how it went down.‖ Spidle admonished him, 

―Once you ask for a lawyer, we‘re not going to question you any further about 

how it went down.‖ Defendant asked, ―What if I say what happened?‖ Spidle 

repeated that he was not allowed to question defendant because he had invoked his 

right to counsel. However, if defendant wished to make a statement, he would

record it and provide it to the prosecutor‘s office. Defendant said that was what he 

wanted to do.
16

Spidle got a tape recorder, turned it on, and said, ―[O]kay, what time is it?‖ 

Defendant immediately interrupted him to say, ―Okay, what I‘m going to tell you 

is that it didn‘t involve anybody else and I did this.‖ Spidle in turn interrupted 

defendant to establish for the record that he had been booking defendant, that he 

had not asked defendant any questions about the shootings, and that defendant had 

volunteered that he wished to talk about what had happened. Defendant 

confirmed these statements were accurate. He stated that he had been advised of 

his rights and did not need to have them repeated.

―[Spidle]: Okay, and so knowing what your rights are, you want to tell me 

what happened. [G]o right ahead, lay it out.

―[Defendant]: I want to tell this because I just want to make it clear [that 

no one else was involved]. I mean I did it and that‘s the whole thing, my friends 

are my friends still no matter what.

―[Spidle]: Okay.

―[Defendant]: . . . I just got to face it, I‘m caught[,] you know.‖

The transcript of defendant‘s confession, which we summarized in the 

statement of facts (pt. I.A.1.c.), is 35 pages long. At its conclusion the following 

colloquy occurred.

―[Spidle]: . . . I just want to go over this with [you] again. You‘re telling 

me this because you wanted to tell me this?

―[Defendant]: Yes.

―[Spidle]: Okay, not because I forced you, or asked you any questions?

―[Defendant]: No, no, no.

―[Spidle]: Okay.

―[Defendant]: I figure you guys already know [so] I might as well let you 

know the real story.‖
17

Spidle asked, ―Why did you pick me?‖ Defendant said that he had chosen 

to confess to Spidle because the other detectives were ―assholes.‖ Spidle had 

treated him with respect, so he respected Spidle. 

Spidle pursued the point. ―[S]omewhere down the road someone is going 

to want to make a big deal that I made you talk or something.

―[Defendant]: No, no.

―[Spidle]: Okay.

―[Defendant]: Even if a lawyer would say that[,] you know[,] you made 

him talk, I would tell the lawyer that he is wrong.‖

2. General Principles

The principles of law applicable to defendant‘s Miranda claim are well 

established. 

Questioning remains an important part of any criminal investigation. 

Police officers may legitimately endeavor to secure a suspect‘s participation in the 

interrogation process so long as constitutional safeguards are honored. (See 

Miranda, supra, 384 U.S. at p. 478.)

Once an in-custody suspect invokes his right to either silence or counsel, 

interrogation must cease. (Miranda, supra, 384 U.S. at pp. 473-474.) If the right 

to counsel is invoked, the suspect cannot be interrogated further, unless counsel is 

provided (ibid.) or the suspect reinitiates contact with the police. (Minnick v. 

Mississippi (1990) 498 U.S. 146, 156; Solem v. Stumes (1984) 465 U.S. 638, 646; 

Edwards v. Arizona (1981) 451 U.S. 477, 485-486; People v. Gonzalez (2005) 34 

Cal.4th 1111, 1122.) Interrogation includes both express questioning and ―words 

or actions . . . the police should know are reasonably likely to elicit an 

incriminating response from the suspect.‖ (Rhode Island v. Innis (1980) 446 U.S. 

291, 301, fns. omitted.)
18

―After a suspect has invoked the right to counsel, police officers may 

nonetheless resume their interrogation if  ̳the suspect ―(a) initiated further 

discussions with the police, and (b) knowingly and intelligently waived the right 

he had invoked.‖ ‘ (Connecticut v. Barrett (1987) 479 U.S. 523, 527; see also 

Smith v. Illinois (1984) 469 U.S. 91, 95; Oregon v. Bradshaw (1983) 462 U.S. 

1039, 1044 . . . .) The waiver must be  ̳ ―knowing and intelligent . . . under the 

totality of the circumstances, including the necessary fact that the accused, not the 

police, reopened the dialogue with the authorities.‖ ‘ (Bradshaw, supra, at p. 1046, 

quoting Edwards [v. Arizona (1981)] 451 U.S. [477,] 486, fn. 9.)‖ (People v. 

Davis (2009) 46 Cal.4th 539, 596; accord, People v. Gamache (2010) 48 Cal.4th 

347, 385 (Gamache).) The prosecution has the burden of proof on these points. 

(Gamache, at pp. 384-385.)

―  ̳In reviewing constitutional claims of this nature, it is well established 

that we accept the trial court‘s resolution of disputed facts and inferences, and its 

evaluations of credibility, if supported by substantial evidence. We independently 

determine from the undisputed facts and the facts properly found by the trial court 

whether the challenged statement was illegally obtained.‘ (People v. Cunningham

(2001) 25 Cal.4th 926, 992.)‖ (People v. Thomas (2011) 51 Cal.4th 449, 476.)

In denying the motion to suppress, the trial court made the following 

findings. Defendant was properly advised of his Miranda rights, signed a form 

waiving them, and demonstrated his understanding by later invoking his right to 

counsel. At that point the interrogation ended. While Spidle was engaged in a 

legitimate booking process defendant initiated the conversation leading to his 

confession. Spidle admonished defendant that Spidle could not question him 

because defendant had invoked his right to counsel. Nevertheless, defendant 

wanted to confess and waived his rights. The court concluded that, under the 
19

totality of the circumstances, ―this is clearly a waiver freely and voluntarily and 

intelligently made.‖

(A)

Substantial evidence supports the trial court‘s findings, including the 

finding that when Schultz concluded that defendant had invoked his right to 

counsel, Schultz stopped interrogating defendant. Instead, he told defendant, 

―from now on you are to shut your mouth[,] I don‘t want to hear another word out 

of you[,] do you understand that?‖ Saying he understood, defendant asked Schultz 

when he would see his attorney and whether one would be appointed for him. 

Schultz responded, ―You can, when you go to court and get arraigned, one will be 

appointed to represent you. [T]hat‘s when you can see your lawyer. Now I 

suggest[] for the next 48 hours, that you deeply consider that[.] Is that all clear[?]‖ 

Schultz then turned defendant over to Spidle for booking, informing Spidle that 

defendant had invoked his right to counsel.

In arguing that Schultz continued to interrogate him after he invoked his 

right to counsel, defendant relies on a single sentence uttered by Schultz: ―Now I 

suggest[] for the next 48 hours, that you deeply consider that[.]‖ Defendant makes 

the argument that Schultz admitted on recross-examination that this statement was 

―calculated to get [defendant] to  ̳speak with law enforcement without a lawyer 

being present.‘ ‖

Defendant blatantly misstates the record. Schultz did not testify his 

statement was intended to convince defendant to speak to one of the detectives in 

the absence of counsel. Schultz testified that he was encouraging defendant to use 

the next 48 hours to reflect on his crimes and to reconsider his attitude.22

 

22 In the exchange in question, defense counsel asked Schultz, ―The 48 hours you 

made reference to in your last statement when you told Mr. Enraca [to]  ̳deeply 

(footnote continued on next page)
20

Moreover, Schultz‘s intent is not determinative. ―In deciding whether 

police conduct was  ̳reasonably likely‘ to elicit an incriminating response from the 

suspect, we consider primarily the perceptions of the suspect rather than the intent 

of the police. (Arizona v. Mauro [(1987) 481 U.S. 520,] 527; Rhode Island v. 

Innis, supra, [446 U.S.] at p. 301.)‖ (People v. Davis, supra, 36 Cal.4th at p. 554.) 

To determine defendant‘s likely perception, the statement at issue must be 

considered in context. Defendant is highly unlikely to have understood Schultz‘s 

statement as encouragement to continue or renew the interview. In virtually the 

same breath Schultz told him in no uncertain terms: ―[F]rom now on you are to 

shut your mouth[,] I don‘t want to hear another word out of you[,] do you 

 

(footnote continued from previous page)

consider that,‘ that‘s the period of time when Mr. Enraca would be able to speak to 

you or law enforcement without a lawyer being present. Is that fair to say?‖ 

Schultz responded, ―If that was his choice, yes, sir.‖

On redirect, Schultz clarified his intent. He drew an analogy to ―talking to 

your kids when they do something wrong.  ̳I suggest you think about it.‘ ‖ He 

said he was encouraging defendant to use the 48 hours before arraignment to 

consider his crimes and his ―wise guy‖ attitude. ―[Prosecutor:] Did that comment 

have anything to do with his attitude? [¶] [Schultz:] I would say so, yes. [¶] 

[Prosecutor:] And what was that? [¶] [Schultz:] Only that he‘d become quite 

disenchanted, quite upset. And I suggested that he think about his actions. And, 

you know, I used the term  ̳the next 48 hours‘ because, you know, that‘s the time 

before arraignment, approximately 48 hours. [¶] [Prosecutor:] Did your term 

 ̳wise guy‘ have anything to do with . . . what you considered to be his attitude? 

[¶] [Schultz:] Yes. [¶] [Prosecutor:] Was that what you were talking about 

when you suggested he think about it? [¶] [Defense counsel:] Objection. 

Leading. [¶] [The court:] Overruled. [¶] [Schultz:] Yes.‖

On recross-examination, defense counsel asked Schultz, ―You didn‘t tell 

[defendant] that he needs to contact you within this 48-hour period if he wants to 

speak to you without benefit of a lawyer?‖ Schultz responded, ―No.‖ Defense 

counsel then asked, ―Did you tell Detective Spidle that you had perhaps suggested 

to the defendant he should possibly talk to you in the next 48 hours?‖ Schultz 

responded, ―No.‖ 
21

understand that?‖ Defendant responded, ―Yes sir.‖ Moreover, when defendant 

did seek to initiate a conversation with Spidle about what happened, Spidle 

admonished him: ―Once you ask for a lawyer, we‘re not going to question you 

any further about how it went down.‖ Defendant persisted and asked, ―What if I 

say what happened?‖ Spidle repeated that questioning was not permitted because 

of defendant‘s invocation. Only after defendant confirmed that he wanted to make 

a statement was the recording made.

Finally, defendant told Spidle why he initiated the conversation. It was not 

because of Schultz‘s remark. He manifestly held Schultz in low regard. 

Defendant spoke to Spidle because ―I figure you guys already know [so] I might 

as well let you know the real story.‖ He chose to confess to Spidle, rather than 

Schultz, because Spidle had treated him with respect. He insisted, ―Even if a 

lawyer would say that . . . you made him talk, I would tell the lawyer that he is 

wrong.‖

In People v. Sapp (2003) 31 Cal.4th 240 (Sapp), the officer made a similar 

parting remark after the defendant invoked his right to counsel. The officer ―gave 

defendant his card and told him to  ̳think about it overnight,‘ adding that before 

the homicide investigators could again talk to defendant with or without an 

attorney being present, defendant would have to  ̳get in contact‘ with them.‖ (Id.

at p. 264.) We held that Sapp‘s confession was voluntary. ―[W]hen defendant 

unequivocally told Detective Tye he wanted an attorney, Tye stopped his 

questioning and properly advised defendant that none of the homicide 

investigators could question him unless defendant initiated contact with them. 

[Citation.] Some 24 hours later, defendant summoned a jail guard and asked for 

the homicide investigators to come back so he could admit to three murders. 

[Citation.] Thereafter, he gave investigators a detailed account of the murders and 

led them to the crime scenes. Defendant was over 30, obviously intelligent and 
22

well-acquainted with the criminal justice system. The totality of circumstances 

show his decision to summon the investigators was not the result of coercion. On 

these facts, voluntariness is established beyond a reasonable doubt.‖ (Id. at p. 

268.)

In seeking to distinguish Sapp, defendant again distorts the record here. 

Defendant asserts that Detective Schultz ―physically threatened‖ him. To the 

contrary, when defendant was placed in the interview room, Schulz removed his 

handcuffs, thus removing a source of discomfort and limitation on movement. 

Schultz warned defendant that he would be physically restrained if he tried to 

escape. The admonition was colorful, 23 but not improper. Defendant asserts that 

Schultz ―verbally abused and cursed at‖ him. Schultz did say, ―I‘[ve] about had it 

up to here with you cuz you‘re full of shit and that‘s it.‖ However, Schultz was 

simply responding to defendant in his own mode of expression. Immediately 

before Schultz‘s remark, Schultz told defendant that five eyewitnesses had 

identified defendant as the shooter. Defendant had responded, ―Shit.‖ Defendant 

complains that Schultz called him a liar. Schultz did do so. However, defendant 

was indeed lying to Schultz, as he admitted to Spidle. Further, officers may 

legitimately accuse a suspect of lying. (In re Joe R. (1980) 27 Cal.3d 496, 515.) 

The totality of the circumstances support the trial court‘s findings that Schultz 

properly ended the interrogation and that defendant initiated the conversation with 

Spidle, waived his Miranda rights, and made his statements freely, voluntarily, 

and intelligently.

 

23 ―[Schultz:] I‘m going to take those handcuffs off you. I guarantee you if you 

try and leave this room . . . . [¶] [Defendant:] I‘m not going to try and leave this 

room. [¶] [Schultz:] You‘re gonna think WWF‘s Santa Claus, okay? [¶] 

[Defendant:] Okay.‖ 
23

(B)

There is no merit to defendant‘s claim that Schultz should have told him 

that he could consult with appointed counsel immediately. Defendant was 

correctly informed that he could acquire his own counsel or, if he was eligible, 

counsel would be appointed when he was arraigned. ―That is in fact when his 

right to counsel attached. (United States v. Gouveia (1984) 467 U.S. 180, 185, 

187; see Duckworth v. Eagan (1989) 492 U.S. 195, 203-204.‖ (People v. 

Bradford (1997) 14 Cal.4th 1005, 1045; accord, People v. Smith (2007) 

40 Cal.4th 483, 503.) ―Miranda does not require that attorneys be producible on 

call, or that police  ̳keep a suspect abreast of his various options for legal 

representation.‘ (People v. Bradford, supra, 14 Cal.4th at p. 1046.)‖ (Smith, 

supra, 40 Cal.4th at p. 503.)

(C)

Finally, we turn to defendant‘s claims under the Vienna Convention on 

Consular Relations and the bilateral consular convention between the United 

States and the Philippines. Article 36, paragraph 1(b), of the Vienna Convention, 

which the United States has ratified, provides that law enforcement officials 

―  ̳shall . . . inform‘ arrested foreign nationals of their right to have their consulate 

notified of their arrest, and if a national so requests, inform the consular post that 

the national is under arrest.‖ (People v. Mendoza (2007) 42 Cal.4th 686, 709.) 

Article VII, paragraph 2 of the United States consular convention with the 

Philippines provides that whenever their nationals are arrested, consular officers 

are to be notified immediately and permitted to visit them without delay.

Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 (Sanchez-Llamas) was 

decided after defendant gave his confession. There, the United States Supreme 

Court made it clear that an officer‘s failure to notify a suspect of his or her 
24

consular rights does not, in itself, render a confession inadmissible. ―The violation 

of the right to consular notification . . . is at best remotely connected to the 

gathering of evidence. Article 36 has nothing whatsoever to do with searches or 

interrogations. Indeed, Article 36 does not guarantee defendants any assistance at 

all. The provision secures only a right of foreign nationals to have their consulate 

informed of their arrest or detention — not to have their consulate intervene, or to 

have law enforcement authorities cease their investigation pending any such notice 

or intervention. In most circumstances, there is likely to be little connection 

between an Article 36 violation and evidence or statements obtained by police.

―Moreover, the reasons we often require suppression for Fourth and Fifth 

Amendment violations are entirely absent from the consular notification context. 

We require exclusion of coerced confessions both because we disapprove of such 

coercion and because such confessions tend to be unreliable. Watkins v. Sowders, 

449 U.S. 341, 347 (1981). We exclude the fruits of unreasonable searches on the 

theory that without a strong deterrent, the constraints of the Fourth Amendment 

might be too easily disregarded by law enforcement. Elkins v. United States, 364 

U.S. 206, 217 (1960). The situation here is quite different. The failure to inform a 

defendant of his Article 36 rights is unlikely, with any frequency, to produce 

unreliable confessions. And unlike the search-and-seizure context — where the 

need to obtain valuable evidence may tempt authorities to transgress Fourth 

Amendment limitations — police win little, if any, practical advantage from 

violating Article 36. Suppression would be a vastly disproportionate remedy for 

an Article 36 violation.‖ (Sanchez-Llamas, supra, 548 U.S. at p. 349.)

The Sanchez-Llamas court added that a violation of the right of consular 

notification is not without remedy in appropriate cases. ―[S]uppression is not the 

only means of vindicating Vienna Convention rights. A defendant can raise an 

Article 36 claim as part of a broader challenge to the voluntariness of his 
25

statements to police.‖ (Sanchez-Llamas, supra, 548 U.S. at p. 350.) Defendant 

did so here. The trial court found a ―clear violation‖ of article 36.24 However, it 

further found that no causal relationship or linkage had been shown between the 

violation and defendant‘s confession. 

Defendant claims that this finding was a conclusion of law, not a finding of 

fact. He asserts the finding only anticipated Sanchez-Llamas‘s legal holding that a 

consular violation does not, in itself, render a confession inadmissible. The 

passage referenced by defendant does anticipate that holding. The trial court 

observed: ―You‘ve equated it to Miranda, almost. In Miranda . . . [t]here‘s 

linkage, something that flows from that directly, and I don‘t see that there is any 

case authority or any logical proposition that a violation of the Vienna Convention 

means that you can‘t introduce a statement.‖ However, defendant fails to mention 

the preceding and succeeding paragraphs. There the trial court explicitly made a 

factual finding that, under the totality of the circumstances, defendant‘s confession 

was not linked to the consular convention violation. ―[I]t hasn‘t been shown to me 

that this violation [has] a linkage with any statements given.‖ ―How has this 

harmed this individual in getting a fair trial? . . . I don‘t think it links up . . . . I am 

looking to see if he is harmed in the totality. He was afforded, so far as I can see, 

all his constitutional rights.‖ The record clearly supports this finding. 

As the Sanchez-Llamas court noted, article 36 ―secures only a right of 

foreign nationals to have their consulate informed of their arrest or detention —

not to have . . . law enforcement authorities cease their investigation pending any 

such notice or intervention.‖ (Sanchez-Llamas, supra, 548 U.S. at p. 349.) 

Defendant made his confession while he was being booked, within a few hours of 

 

24 We are not called upon to consider the correctness of that ruling.
26

his arrest and several weeks after the murders. Even if we assume, as the trial 

court did, that the Philippine consulate would have provided a lawyer for 

defendant and that the consular officers and counsel would have advised defendant 

to remain silent, there was no showing that this would have occurred before 

defendant was booked.

For the same reasons, defendant‘s claim under the United States bilateral 

consular convention with the Philippines also fails. 

B. Refusal to Instruct on Heat of Passion

Defendant contends the trial court erred by refusing his request to instruct 

the jury on voluntary manslaughter due to heat of passion. The claim fails because

the requested instructions were not supported by substantial evidence. 

―In criminal cases, even in the absence of a request, a trial court must 

instruct on general principles of law relevant to the issues raised by the evidence 

and necessary for the jury‘s understanding of the case. (People v. Breverman

(1998) 19 Cal.4th 142, 154.)‖ (People v. Martinez (2010) 47 Cal.4th 911, 953; 

accord, People v. Booker (2011) 51 Cal.4th 141, 179 (Booker).)

―  ̳To justify a lesser included offense instruction, the evidence supporting 

the instruction must be substantial—that is, it must be evidence from which a jury 

composed of reasonable persons could conclude that the facts underlying the 

particular instruction exist.‘ (People v. Blair [(2005)] 36 Cal.4th [686,] 745, citing 

People v. Breverman, supra, 19 Cal.4th at p. 162.)‖ (People v. Burney (2009) 47 

Cal.4th 203, 250.)

―Murder is the unlawful killing of a human being with malice aforethought. 

(See § 187, subd. (a).) A murder, however, may be reduced to voluntary 

manslaughter if the victim engaged in provocative conduct that would cause an 
27

ordinary person with an average disposition to act rashly or without due 

deliberation and reflection.‖ (Booker, supra, 51 Cal.4th at p. 183, fn. 23.) 

Heat of passion has both objective and subjective components. 

Objectively, the victim‘s conduct must have been sufficiently provocative to cause 

an ordinary person of average disposition to act rashly or without due deliberation 

and reflection. (E.g., People v. Moye (2009) 47 Cal.4th 537, 549-550 (Moye).) 

The standard is not the reaction of a ―reasonable gang member.‖ (See People v. 

Humphrey (1996) 13 Cal.4th 1073, 1087.) 

Subjectively, ―the accused must be shown to have killed while under  ̳the 

actual influence of a strong passion‘ induced by such provocation. ([People v.] 

Wickersham [(1982)] 32 Cal.3d [307,] 327.)  ̳Heat of passion arises when ―at the 

time of the killing, the reason of the accused was obscured or disturbed by passion 

to such an extent as would cause the ordinarily reasonable person of average 

disposition to act rashly and without deliberation and reflection, and from such 

passion rather than from judgment.‖ [Citations.]‘ (People v. Barton [(1995)] 12 

Cal.4th [186,] 201.)‖ (Moye, supra, 47 Cal.4th at p. 550.)

The trial court instructed the jury on perfect and imperfect defense of self or 

another. However, it declined to instruct on heat of passion because it found no 

evidence that defendant acted under the influence of such passion. The court 

observed: ―I don‘t see any . . . heat of passion here at all or sudden quarrel.‖ 

Defendant‘s ―passions weren‘t aroused. It was either self-defense or he killed 

somebody.‖ ―They were laughing at this guy until they had a belief they were 

going to get shot at.‖

We agree there was no substantial evidence that defendant acted under the 

heat of passion. Indeed, all the evidence is to the contrary. Defendant claims that 

he shot the victims in the heat of passion provoked by Gobert‘s ―belligerent 

behavior‖ and conduct insulting to the ABC gang. However, we have rejected 
28

arguments that insults or gang-related challenges would induce sufficient 

provocation in an ordinary person to merit an instruction on voluntary 

manslaughter. (People v. Avila (2009) 46 Cal.4th 680, 706-707; see also People v. 

Manriquez (2005) 37 Cal.4th 547, 586.) Moreover, defendant told Detective 

Spidle that until Gobert appeared to reach for a gun, he and the other ABC‘s just 

laughed at him. ―[W]e just started giggling.‖ The other ABC‘s confirmed this. 

Lester Maliwat testified that the ABC‘s were not provoked by Gobert‘s jibes, but 

rather considered him laughable because he was so badly outnumbered. ―Q. 

Okay. When the black guy said to you,  ̳Fuck you slobs,‘ what was your reaction? 

[¶] A. I just started laughing. [¶] Q. Why did you laugh? [¶] A. Because he 

was the only guy there.‖ Roger Boring‘s testimony was consistent with 

Maliwat‘s. ―Q. Okay. Did other people in your group besides yourself laugh at 

this guy because you didn‘t take him seriously? . . . [¶] . . . [¶] A. I noticed a 

couple that didn‘t take him seriously at the time.‖

Defendant acknowledges that the ABC‘s did not consider Gobert a ―serious 

threat‖ at first. However, he claims that his assessment changed, prompting him to 

respond in the heat of passion, when Gobert appeared to reach for a gun. This 

claim, too, is belied by the record. Defendant told Detective Spidle that he 

remained calm and tried to exert a calming influence on the other ABC‘s even 

after Gobert apparently reached for a gun and was attacked by the others. 

Defendant claimed that he tried ―to break it up.‖ ―I go[,]  ̳just leave him the fuck 

alone[,] dude.‘ ‖ Defendant also told Spidle that he drew his pistol with the 

intention of stopping the fight. ―I was about to shoot in the air so that, everyone 

would just run. You know so that the whole fight would just break up.‖ ―I was

just trying to break it up, you know I mean if I wanted to shoot them, if I wanted 

to intentionally kill these[] guys, I would of done it . . . when they first came up 

here.‖
29

Defendant claims that Hernandez and Gobert each appeared to be reaching 

for a gun while they lay on the ground. However, the autopsy evidence strongly 

suggests that they were killed facedown, execution style, and not while engaged in 

a defensive effort. Moreover, defendant‘s version of the events is of no help to 

him. Under his scenario, Hernandez responded to being pulled up by the hair by 

an armed assailant, and Gobert acted in resistance to Hernandez being killed. 

Predictable and reasonable conduct by a victim resisting felonious assault is not 

sufficient provocation to merit an instruction on voluntary manslaughter. (People 

v. Blacksher (2011) 52 Cal.4th 769, 833; People v. Jackson (1980) 28 Cal.3d 264, 

306.)

Finally, defendant claims that the trial court erred in refusing his request to 

read CALJIC No. 8.73, which instructs that provocation insufficient to reduce 

homicide to manslaughter may nevertheless be considered on the question of 

whether the defendant killed with deliberation or premeditation. CALJIC No. 8.73 

is a pinpoint instruction that must be given, upon request, only if supported by 

substantial evidence. (People v. Ward (2005) 36 Cal.4th 186, 214.) Substantial 

evidence was lacking here. Again, the forensic evidence strongly suggested that 

defendant deliberately executed his victims. 

C. Instructions on Perfect and Imperfect Self-defense

Defendant claims there was no factual basis for instructing the jury that the 

doctrines of perfect and imperfect self-defense cannot be invoked by a defendant 

whose own wrongful conduct created the circumstances in which the adversary‘s 

attack was legally justified. The claim fails.

―The concepts of perfect and imperfect self-defense are not entirely 

separate, but are intertwined. We have explained that  ̳the ordinary self-defense 

doctrine — applicable when a defendant reasonably believes that his safety is 
30

endangered — may not be invoked by a defendant who, through his own wrongful 

conduct (e.g., the initiation of a physical attack or the commission of a felony), has 

created circumstances under which his adversary‘s attack or pursuit is legally 

justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine 

cannot be invoked in such circumstances.‘ (In re Christian S. [(1994)] 7 Cal.4th 

[768,] 773, fn. 1.) As applied to this case, this means that if defendant had first 

assaulted Cruz, then unreasonably believed Cruz was assaulting him, a claim of 

imperfect self-defense would be unavailable because a claim of perfect selfdefense would have been unavailable had the belief been reasonable. To make the 

observation in In re Christian S. more general, not every unreasonable belief will 

support a claim of imperfect self-defense but only one that, if reasonable, would 

support a claim of perfect self-defense.‖ (People v. Valencia (2008) 43 Cal.4th 

268, 288-289; see Booker, supra, 51 Cal.4th at p. 182; People v. Randle (2005) 35 

Cal.4th 987, 1001.)

In response to requests by both the prosecution and the defense, the trial 

court instructed the jury on the law as we have just explained it. It gave CALJIC 

No. 5.55: ―The right of self-defense is not available to a person who seeks a 

quarrel with the intent to create a real or apparent necessity of exercising selfdefense.‖ Pursuant to CALJIC No. 5.17, the jury was also instructed that the 

principle of imperfect self-defense ―is not available, and malice aforethought is not 

negated, if the defendant[,] by his unlawful or wrongful conduct[,] created the 

circumstances which legally justified his adversary‘s use of force.‖

The Attorney General contends that defendant may not complain of these 

instructions because he requested them. The doctrine of invited error bars a 

defendant from challenging an instruction when the defendant has made a 

conscious and deliberate tactical choice to request it. (People v. Moore (2011) 51 

Cal.4th 386, 410; People v. Harris (2008) 43 Cal.4th 1269, 1293; People v. Catlin
31

(2001) 26 Cal.4th 81, 150.) Here, whether or not defendant made such a choice, 

the instructions were clearly supported by the record. When Gobert appeared to 

reach for a gun, the ABC gang attacked him, threw him to the ground, and beat 

him. Hernandez tried to shield Gobert with his body. Holding his gun in one 

hand, defendant grabbed Hernandez by the hair, pulled his head back, and asked 

him where he was from. Hernandez hit his hand, and defendant shot him. 

Hernandez moved and defendant shot him again. Defendant claimed he fired 

because he was afraid Hernandez was about to shoot him. This is scant evidence 

for this claim, but, even if it were true, defendant had attacked Hernandez as he 

tried to shield Gobert. Defendant could claim neither perfect nor imperfect selfdefense in the shooting of Gobert. Once defendant shot Hernandez, Gobert would 

have reasonably believed he would be shot next. 

D. Defendant’s Waiver of His Right to Testify 

Defendant contends the trial court prejudicially erred because it did not 

advise him of his right to testify or obtain an on-the-record waiver of that right. 

The claim fails. 

A trial court has no duty to give such advice or seek an explicit waiver, 

unless a conflict with counsel comes to its attention. (People v. Bradford (1997) 

15 Cal.4th 1229, 1332-1333; People v. Alcala (1992) 4 Cal.4th 742, 805-806 

(Alcala); In re Horton (1991) 54 Cal.3d 82, 95.) 

Defendant does not assert that a conflict occurred here. Instead, he asks us 

to create a new rule of procedure. He argues that requiring an advisement and 

explicit waiver, even in the absence of a conflict, ―would not only protect [a] 

defendant‘s fundamental constitutional right to testify, but also ease the burden on 

the judicial system‖ by obviating the need for posttrial evidentiary hearings on the 

question of waiver. To the contrary, we reaffirm our previous decisions, in which 
32

―we have rejected similar proposals. (See People v. Hendricks (1987) 43 Cal.3d 

584, 592-594; People v. Murphy (1972) 8 Cal.3d 349, 366-367; see also People v. 

Cox (1991) 53 Cal.3d 618, 671 [ ̳ ―[A] trial judge may safely assume that a 

defendant, who is ably represented and who does not testify is merely exercising 

his Fifth Amendment privilege against self-incrimination and is abiding by his 

counsel‘s trial strategy; otherwise, the judge would have to conduct a law seminar 

prior to every criminal trial.‖ ‘ (Quoting People v. Mosqueda (1970) 5 Cal.App.3d 

540, 545)].) When the record fails to disclose a timely and adequate demand to 

testify,  ̳a defendant may not await the outcome of the trial and then seek reversal 

based on his claim that despite expressing to counsel his desire to testify, he was 

deprived of that opportunity.‘ (People v. Hayes (1991) 229 Cal.App.3d 1226, 

1231-1232; People v. Guillen (1974) 37 Cal.App.3d 976, 984-985.)‖ (Alcala, 

supra, 4 Cal.4th at pp. 805-806.)

E. Victim Impact Evidence 

Defendant contends that because the trial court failed to give a limiting 

instruction, sua sponte, regarding the use of victim impact evidence, he was denied 

his right to a fair and reliable penalty determination under the Eighth and 

Fourteenth Amendments to the federal Constitution. This is the instruction he 

now proposes: ―1. That evidence about the victims‘ personal characteristics was 

introduced to give a brief glimpse of [the] victim‘s life and to inform the jury of 

the uniqueness of the lives of these victims. [¶] 2. No human life is worth more 

than another. [¶] 3. The bedrock of a penalty determination is an evaluation of the 

moral culpability of the defendant[.] [¶] 4. The culpability of the defendant for 

facts about which he was unaware at the time of the crime is less than for things he 

knew at the time of the crime.‖ We reject his argument.
33

Unless it invites a purely irrational response from the jury, the effect of a 

capital crime on loved ones and the community is relevant and admissible as a 

circumstance of the crime under section 190.3, factor (a). The federal Constitution 

bars victim impact evidence only if it is so unduly prejudicial as to render the trial 

fundamentally unfair. (People v. Nelson (2011) 51 Cal.4th 198, 219 (Nelson); 

People v. Bramit (2009) 46 Cal.4th 1221, 1240 (Bramit); People v. Lewis and 

Oliver (2006) 39 Cal.4th 970, 1056-1057 (Lewis & Oliver).)

Pursuant to CALJIC No. 8.85, the penalty jury was instructed to consider, 

among other factors, the circumstances of defendant‘s crimes.25 (See also 

CALCRIM No. 763.) We have repeatedly held that this instruction adequately 

informs the jury how to consider victim impact evidence. (Bramit, supra, 46 

Cal.4th at p. 1245; People v. Zamudio (2008) 43 Cal.4th 327, 369 (Zamudio); 

People v. Brown (2003) 31 Cal.4th 518, 573.) We have also repeatedly held there 

is no sua sponte duty to give instructions that were substantially similar to the one 

defendant proposes. (People v. Carrington (2009) 47 Cal.4th 145, 198; Bramit, at 

pp. 1244-1245; Zamudio, at pp. 369-370.) We have explained that such 

instructions are misleading insofar as they suggest that the jury may not be moved 

by sympathy for the victims and their survivors. (People v. Tate (2010) 49 Cal.4th 

635, 708; Zamudio, at p. 369; People v. Pollock (2004) 32 Cal.4th 1153, 1195.) 

Finally, there is no basis in the law for defendant‘s proposed instruction that ―[t]he 

culpability of the defendant for facts about which he was unaware at the time of 

the crime is less than for things he knew at the time of the crime.‖ (See Nelson, 

supra, 51 Cal.4th at p. 219, fn. 17; Bramit, at p. 1240; Lewis & Oliver, supra, 39 

Cal.4th at p. 1057.)

 

25 The trial court also gave the other instructions that are pertinent to victim 

impact evidence: CALJIC No. 8.84.1 and CALJIC No. 8.88. 
34

F. Asserted Improper Prosecutorial Argument

Defendant contends the prosecutor committed prejudicial misconduct 

during his penalty phase argument by implying that the victims‘ families wanted 

defendant to be sentenced to death. The claim fails.

The views of a victim‘s family as to the appropriate punishment are beyond 

the scope of constitutionally permissible victim impact testimony. (Payne v. 

Tennessee (1991) 501 U.S. 808, 830, fn. 2; People v. Cowan (2010) 50 Cal.4th 

401, 484 (Cowan); People v. Pollock, supra, 32 Cal.4th at p. 1180; see People v. 

Smith (2003) 30 Cal.4th 581, 622.) It follows that a prosecutor may not attribute 

such views to a victim‘s family expressly or by implication. Defendant complains 

that three remarks made by the prosecutor crossed this line. 

1. Urging the jury to return a death penalty, the prosecutor said, ―If the 

decision is not the appropriate one in this case, it would bring further injury to the 

shattered lives of three families.‖ Defense counsel did not object to this remark. 

2. Later, speaking of the victims‘ families, the prosecutor said: ―These 

people look to you for justice. They have waited patiently for 4 1/2 years.‖ 

Defense counsel objected, ―that‘s improper argument.‖ The court impliedly 

sustained the objection, giving this admonition: ―I want to clarify something, 

ladies and gentlemen. Public feeling or sentiment should not enter into your 

determination. It‘s based solely on those mitigating and aggravating factors in 

rendering your verdict in the penalty phase.‖ Defense counsel thanked the court, 

and sought no further intervention. 

3. Finally, the prosecutor essentially repeated the first complained-of 

remark. Acknowledging that the jury had the power to return a verdict of life 

imprisonment without possibility of parole, the prosecutor argued that to do so 

would be inappropriate and an ―insult‖ to the victims. ―Theirs, not our lives, we 

would be adding insult to. It‘s further insult that we‘d be adding to theirs and their 
35

families‘.‖ This time defense counsel did object and the objection was sustained. 

In response to defense counsel‘s request for an admonition, the court instructed the 

jury: ―Once again, ladies and gentlemen, public sentiment and public feeling 

should not come into any decision you make in the penalty phase.‖ The 

prosecutor said that he had not intended to invoke ―public outrage.‖ ―My 

comments are limited specifically to these facts, this defendant, and these 

victims.‖ Defense counsel objected to the prosecutor‘s implication. ―Again, Your 

Honor, I‘m going to object. What it implies.‖ The following colloquy ensued. 

―The Court: Victim impact is a consideration for this jury. [¶] [Defense 

counsel]: But not their desire. [¶] The Court: Victim impact is a consideration 

for this jury. [¶] [The prosecutor]: Thank you, Your Honor. [¶] [Defense 

counsel]: That‘s overruled? [¶] The Court: Yes, ma‘am.‖

Defendant failed to object to the first remark of which he now complains. 

Therefore, the point is forfeited because any prejudice it may have caused could 

have been cured by an appropriate admonition. (People v. Jablonski (2006) 37 

Cal.4th 774, 835; People v. Arias (1996) 13 Cal.4th 92, 159.) The court did 

admonish the jury as to the second remark, and defense counsel sought no 

additional relief.

Counsel objected in the third instance and sought a curative instruction. 

The court did inform the jury that public sentiment could not affect its verdict. 

While a correct statement of the law, the instruction did not address the point of 

which defendant complained, and further instruction would have been appropriate 

in light of the defense request. The defense position was that the jury was being 

asked to vote for execution out of concern for the feelings of the victims‘ families. 

The defense is correct that such an argument is improper.

The court and prosecution apparently failed to understand the appropriate 

scope of victim impact testimony. In considering penalty a jury may properly take 
36

into account the impact of the defendant’s conduct. The concept cannot be 

stretched to include the potential effect the jury’s decision may have. 

However, any error in this regard was harmless beyond a reasonable doubt. 

(Chapman v. California (1967) 386 U.S. 18, 24.) The victims‘ family members 

themselves did not express any views on the appropriate punishment, and the 

prosecutor did not expressly attribute any such views to them. Defendant had no 

criminal history and a compelling background of family dysfunction. However, 

the evidence reflects that defendant shot and killed Hernandez and Gobert 

execution-style as they lay facedown on the ground. He then shot Hyon, 

paralyzing her for life. As he fled, he made several statements reflecting his lack 

of remorse. This evidence supports a conclusion, beyond a reasonable doubt, that 

the jury‘s verdict was based on his conduct rather than the prosecution‘s 

complained-of remarks. 

G. Lack of Remorse 

Defendant contends the prosecutor improperly urged the jury to consider 

defendant‘s lack of remorse as an aggravating circumstance. The claim fails.

―Conduct or statements demonstrating a lack of remorse made at the scene 

of the crime or while fleeing from it may be considered in aggravation as a 

circumstance of the murder under section 190.3, factor (a). (People v. Bonilla

(2007) 41 Cal.4th 313, 356; People v. Pollock[, supra,] 32 Cal.4th [at p.] 

1184 . . . .)  ̳On the other hand, postcrime evidence of remorselessness does not fit 

within any statutory sentencing factor, and thus should not be urged as 

aggravating.‘ (People v. Gonzalez (1990) 51 Cal.3d 1179, 1232.)‖ (People v. 

Collins (2010) 49 Cal.4th 175, 227.) When evidence of postcrime remorselessness 

has been presented, however, the prosecutor may stress that remorse is not 

available as a mitigating factor. (People v. Davis, supra, 46 Cal.4th at p. 620; 
37

People v. Pollock, supra, 32 Cal.4th at p. 1185; People v. Mendoza (2000) 24 

Cal.4th 130, 187.) 

Here, defendant showed lack of remorse while fleeing the scene. As they 

drove away Lester Maliwat asked defendant why he had shot Jenny Hyon. 

Defendant said, ―Fuck them. They deserved it.‖ This statement could properly be 

considered as a circumstance in aggravation under section 190.3, factor (a). 

The main thrust of the prosecutor‘s argument, however, was that the 

defense attempt to establish remorse as a mitigating factor was belied by the 

evidence. Defense expert Dr. Jean Nidorf testified that defendant appeared to 

express remorse in his videotaped statement to Detective Spidle. ―[H]e felt badly 

about what he had done. He didn‘t want people to do that anymore. He didn‘t 

want people to gangbang. He wanted them to go to church, and I saw that as 

remorse.‖ She further testified that she believed, based on her interviews with 

defendant, that he ―sincerely felt that what he did was wrong and that he regretted 

it.‖ 

The prosecutor began his penalty phase argument by saying that he was 

forced to anticipate possible defense arguments because, unlike at the guilt phase, 

he would not have an opportunity for rebuttal. In particular, the prosecutor 

correctly anticipated that the defense would argue defendant was remorseful. The 

prosecutor argued that, to the contrary, defendant had shown lack of remorse. The 

prosecutor introduced the subject of remorse by characterizing it as the ―third 

reason why death is the only appropriate verdict in this case.‖ He reviewed the 

evidence showing lack of remorse at the scene of the crime or immediately 

afterward. Later, observing that ―[the defense] put remorse in issue, not us,‖ the 

prosecutor sought to discredit the testimony of Dr. Nidorf, and he called attention 

to defendant‘s postcrime statement to Eric Garcia that maybe his victims 
38

―deserved it.‖ In recapping the latter evidence, the prosecutor said: ―You see, 

there‘s no remorse. And lack of remorse is the third thing.‖

There is a subtle but important distinction between the manifestations of a 

defendant‘s remorselessness that may be considered as an aggravating factor and 

those that may be considered only to rebut remorse as a mitigating factor. The 

court and the parties should be careful not to blur it. The prosecutor here was not 

as clear in this regard as he might have been. However, he was not guilty of 

misconduct for he did not begin discussing any postcrime evidence of 

remorselessness until after he noted that defendant ―put remorse in issue.‖ 

Moreover, ―remorse is universally deemed a factor relevant to penalty. The jury, 

applying its common sense and life experience, is likely to consider that issue in 

the exercise of its broad constitutional sentencing discretion no matter what it is 

told. [Citations.]‖ (People v. Keenan (1988) 46 Cal.3d 478, 510; accord, People 

v. Combs (2004) 34 Cal.4th 821, 866; People v. Bemore (2000) 22 Cal.4th 809, 

854-855.) 

H. Refusal to Instruct on Lingering Doubt 

Defendant contends the trial court‘s refusal to instruct during the penalty 

phase on lingering doubt violated his rights under the Sixth, Eighth, and 

Fourteenth Amendments to the federal Constitution. We have consistently 

rejected state and federal law claims that a trial court must specifically instruct on 

lingering doubt because the concept is sufficiently covered in CALJIC No. 8.85. 

(People v. Rogers (2009) 46 Cal.4th 1136, 1176; Zamudio, supra, 43 Cal.4th at p. 

370; People v. DePriest (2007) 42 Cal.4th 1, 59–60.)26

 

26 As noted, CALJIC No. 8.85 was given here. (Ante, at p. 33.)
39

Defendant seeks to distinguish this case on the grounds that (1) an alternate 

juror was seated during the penalty phase, and (2) the court gave CALJIC No. 

17.51.1, which provides in pertinent part that ―the alternate juror must accept as 

having been proved beyond a reasonable doubt, those guilty verdicts and true 

findings rendered by the jury in the guilt phase of this trial.‖ We recently rejected 

this argument in People v. Gonzales and Soliz (2011) 52 Cal.4th 254 (Gonzales & 

Soliz), in which the defendant claimed that ―a lingering doubt instruction is crucial 

in a penalty retrial because a jury that has not decided guilt decides penalty.‖ (Id. 

at p. 325.) We explained: ―Had the penalty retrial jury been convinced by 

defendants‘ arguments in mitigation based on the circumstances of the capital 

crimes, it could have used section 190.3, factors (a) and (k), as expressed in 

CALJIC No. 8.85, to return a verdict of life imprisonment without parole instead 

of death. It needed no lingering doubt instruction to do so. (People v. 

Zamudio[, supra,] 43 Cal.4th 327, 370 . . . [CALJIC No. 8.85 sufficiently covers 

concept of lingering doubt].)‖ (Gonzales & Soliz, supra, at p. 326.)

Finally, defendant contends that our decision in People v. Gay (2008) 42 

Cal.4th 1195 (Gay) compels a conclusion that a lingering doubt instruction is 

required when an alternate is seated during the penalty phase. In the context of a 

penalty retrial, we rejected this argument in Gonzales & Soliz, as well. ―Unlike 

the trial court in this case, the court in Gay had instructed the penalty retrial jury 

on lingering doubt, but had limited the evidence the defense could offer and had 

informed the jury the defendant‘s responsibility for the shooting had been 

conclusively proven by the guilt phase verdicts and no evidence to the contrary 

would be presented. ([Gay,] at p. 1224.) We reversed the judgment because  ̳[t]he 

combination of the evidentiary and instructional errors present[ed] an intolerable 

risk that the jury did not consider all or a substantial portion of the penalty phase 

defense, which was lingering doubt.‘ ([Gay,] at p. 1226.) Gay is essentially the 
40

converse of the present case: In Gay, the trial court instructed the jury on 

lingering doubt, but precluded the defendant from presenting that defense; in the 

present case, the trial court allowed defendants to present and argue their lingering 

doubt defenses, but refused to specifically instruct on lingering doubt. As we 

stated in Gay, our holding there was not based on any state or federal 

constitutional right to a lingering doubt instruction; rather, it was based on 

California‘s death penalty statute, which authorizes the admission of evidence of 

innocence at a penalty retrial. ([Gay,] at p. 1220.) Gay is consistent with our prior 

holdings that a lingering doubt instruction is not required . . . . We therefore reject 

defendants‘ claim that the trial court erred in not instructing on lingering doubt.‖ 

(Gonzales & Soliz, supra, 52 Cal.4th at p. 326.) 

I. Challenges to the Death Penalty Law and Instructions 

Defendant raises a series of challenges to California‘s death penalty law 

and the standard CALJIC sentencing instructions. We have rejected each of these 

challenges in the past and do so here. 

California homicide law and the special circumstances listed in section 

190.2 adequately narrow the class of murderers eligible for the death penalty. 

(People v. Gamache, supra, 48 Cal.4th at p. 406; People v. Barnwell (2007) 41 

Cal.4th 1038, 1058 (Barnwell).) Specifically, the felony-murder special 

circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the 

pool of those eligible for death. (Gamache, supra, 48 Cal.4th at p. 406; People v. 

Kraft (2000) 23 Cal.4th 978, 1078.)

Section 190.3, factor (a), which permits the jury to consider the 

circumstances of the crime in deciding whether to impose the death penalty, does 

not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa 
41

v. California (1994) 512 U.S. 967, 975-976; People v. D’Arcy (2010) 48 Cal.4th 

257, 308 (D’Arcy); People v. Cruz (2008) 44 Cal.4th 636, 680 (Cruz).)

Nothing in the federal Constitution requires the penalty phase jury to make 

written findings of the factors it finds in aggravation and mitigation; agree 

unanimously that a particular aggravating circumstance exists; find all aggravating 

factors proved beyond a reasonable doubt or by a preponderance of the evidence; 

find that aggravation outweighs mitigation beyond a reasonable doubt; or conclude 

beyond a reasonable doubt that death is the appropriate penalty. (People v. 

Burney, supra, 47 Cal.4th at pp. 267-268; People v. Williams (2008) 43 Cal.4th 

584, 648-649.) This conclusion is not altered by the United States Supreme 

Court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona

(2002) 536 U.S. 584, and Blakely v. Washington (2004) 542 U.S. 296. (D’Arcy, 

supra, 48 Cal.4th at p. 308; People v. Carrington, supra, 47 Cal.4th at p. 200; 

People v. Mendoza, supra, 42 Cal.4th at p. 707.)

Review for intercase proportionality is not constitutionally compelled. 

(Pulley v. Harris (1984) 465 U.S. 37, 41-42, 50-51; Bramit, supra, 46 Cal.4th at 

p. 1250; People v. Butler (2009) 46 Cal.4th 847, 885 (Butler).)

The use in the sentencing factors of the phrases ―extreme mental or 

emotional disturbance‖ (§ 190.3, factor (d), italics added) and ―extreme duress 

or . . . substantial domination of another‖ (id., factor (g), italics added) does not 

inhibit the consideration of mitigating evidence or make the factors impermissibly 

vague. (Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 

836, 861; People v. Lewis (2008) 43 Cal.4th 415, 532.)

The trial court need not label the statutory sentencing factors as either 

aggravating or mitigating, nor instruct the jury that the absence of mitigating 

factors does not constitute aggravation. (D’Arcy, supra, 48 Cal.4th at p. 308; 
42

People v. Watson (2008) 43 Cal.4th 652, 704; People v. Cunningham, supra, 25 

Cal.4th at p. 1041.)

―Because capital defendants are not similarly situated to noncapital 

defendants, California‘s death penalty law does not deny capital defendants equal 

protection by providing certain procedural protections to noncapital defendants but 

not to capital defendants.‖ (People v. Jennings (2010) 50 Cal.4th 616, 690; see 

Cruz, supra, 44 Cal.4th at p. 681; People v. Johnson (1992) 3 Cal.4th 1183, 1242-

1243.)

The death penalty as applied in this state is not rendered unconstitutional 

through operation of international law and treaties. (People v. Mills (2010) 48 

Cal.4th 158, 215; Butler, supra, 46 Cal.4th at p. 885; Barnwell, supra, 41 Cal.4th 

at p. 1059.)

III. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.

WE CONCUR: 

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J. 
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Enraca

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S080947

Date Filed: February 6, 2012

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: W. Charles Morgan

__________________________________________________________________________________

Counsel:

Paul J. Spiegelman, under appointment by the Supreme Court, for Defendant and Appellant.

John T. Philipsborn for the Republic of the Philippines as Amicus Curiae on behalf of Defendant and 

Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and William M. Wood, 

Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Paul J. Spiegelman

P.O. Box 22575

San Diego, CA 92192-2575

(858) 452-7121

John T. Philipsborn

507 Polk Street, Suite 350

San Francisco, CA 94102

(415) 771-3801

William M. Wood

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2202