People v. MacIel (2013) · DecisionDepot

People v. MacIel

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 8, 2013 No. S070536Published

Before: Liu

AI Brief

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Holding. The California Supreme Court affirmed the defendant's convictions for five counts of first degree murder and the associated death sentence, finding sufficient evidence to support the jury's verdict.

Issues

Whether there was sufficient evidence to support the defendant's convictions for first degree murder as a conspirator or aider and abettor.
Whether the trial court's judgment of death should be affirmed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“For the reasons that follow, we affirm the judgment.”

Filed 8/8/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S070536 v. ) ) LUIS MACIEL, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA108995 ____________________________________)

Defendant Luis Maciel was convicted of the first degree murders of Anthony Moreno, Maria Moreno, Gustavo Aguirre, Laura Moreno, and Ambrose Padilla. (Pen. Code, §§ 187, subd. (a), 189; all further undesignated statutory references are to this code.) The jury also found true multiple-murder special-circumstance and weapon use sentence enhancement allegations. (§§ 190.2, subd. (a)(3), former 12022, subd. (a)(1).) The jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Case

a. Circumstances surrounding the murders

1) Overview On Saturday, April 22, 1995, between 10:00 and 10:30 p.m., three adults — Anthony ―Dido‖ Moreno, his sister, Maria Moreno, and Gustavo ―Tito‖ Aguirre — and two of Maria‘s children — five-year-old Laura Moreno and six-month-old Ambrose Padilla — were shot to death in a house located at 3843 Maxson Road in El Monte, California. Richard ―Primo‖ Valdez, a Sangra street gang member, shot and killed Anthony Moreno and Gustavo Aguirre, while his fellow Sangra gang member Jimmy ―Character‖ Palma shot and killed Maria Moreno and the children. Sangra gang members Danny ―Tricky‖ Logan and Anthony ―Scar‖ Torres also participated in the shootings. The prosecution‘s theory was that the killings were ordered by Mexican Mafia member Raymond Shyrock, who had recently sponsored defendant (who was also known as ―Pelon‖) to become a member of the Mexican Mafia. The prosecutor theorized that defendant had conspired to commit or aided and abetted the commission of the murders, but was not present when the shootings occurred. The prosecutor also theorized that Anthony ―Dido‖ Moreno was killed because he had dropped out of the Mexican Mafia; that Gustavo ―Tito‖ Aguirre was killed either because he had robbed drug dealers protected by the Mexican Mafia or because he happened to be in the house at the time of the killings and the gang members had been instructed to leave no witnesses; and that Maria and the children were killed because they were witnesses even though there is a general ―rule‖ in the Mexican Mafia not to kill women or children. Defendant

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procuring and injecting heroin. On April 22, 1995, Witness No. 15 and Anthony obtained money for heroin on three occasions by visiting a ―fence‖ named Hector in a barber shop located at Live Oak and Peck in Arcadia. After the first trip, Gustavo ―Tito‖ Aguirre joined Witness No. 15 and Anthony in injecting heroin at Anthony‘s home. Witness No. 15 explained that Aguirre ―stayed with my sister most of the time,‖ helping her with child care and household chores. Witness No. 15 and Anthony returned to Anthony‘s home from their third and final outing sometime between 2:15 and 3:00 p.m. Between 2:30 and 3:00 p.m., defendant and two clean cut men between the ages of 19 to 21, all dressed in blue jeans, T-shirts, and tennis shoes, came to Anthony‘s house. One of the men had an ―EMF‖ (El Monte Flores) gang tattoo. Witness No. 15 and Anthony spoke with defendant and his companions outside for 20 to 30 minutes. Defendant asked how they were doing and how the family was doing. He gave Witness No. 15 and Anthony each a quarter-gram of heroin; a quarter-gram was worth about $25 to $35. He also gave them his pager number and said if they needed anything to page him. Witness No. 15 found these gestures unusual because ―[o]ther people are not . . . that generous on . . . general principle.‖ During the conversation, Witness No. 15 could see two children playing in the yard about 10 feet away. The two men who had accompanied defendant did not speak but appeared to be ―casing out the location.‖ During the visit, victim Gustavo ―Tito‖ Aguirre hid from defendant in the bathroom. Witness No. 9 testified that on April 22, 1995 she lived at 3847 Maxson Road. That day at about noon or 1:00 p.m. she was outside her home having a garage sale. A blue Jeep and a second car parked at 3843 Maxson Road. No one got out of the Jeep, but four tall men with short hair and white shirts got out of the second car. The men entered the driveway of 3843 Maxson Road, and Witness

murders. The following morning, he spoke with Moreno family members and gave them money that had been raised for the funeral. Defendant denied knowing individuals named Jose ―Pepe‖ Ortiz, Danny ―Tricky‖ Logan, or ―Character.‖ Defendant spoke of his involvement in ―CAUSE,‖ an organization that held meetings with street gangs in an attempt to decrease violence. He had heard of Primo and Scar because at some point one of defendant‘s ―homeboys‖ was killed, and the murder was attributed to the Sangra gang. In early April 1995, defendant spoke with ―a girl‖ familiar with the gang and learned the neighborhood was run by Primo and Scar. Defendant gave his pager number to the girl to give to Primo and Scar. Scar called and apparently said Primo was in charge. Defendant asked for Primo to call him, explaining defendant‘s ―homie got killed,‖ and defendant wondered if they could ―talk about this shit before it gets out of hand.‖ Sergeant Laurie said defendant‘s life was in danger, but not from law enforcement, and he was the only person who could help himself. Defendant said, ―I wasn‘t involved, . . . I didn‘t set it up. I didn‘t give that order. I mean what do I get if I tell you who set it up and . . . all that? [¶] . . . [¶] Either way I‘ll be fucked, right?‖ Defendant again denied he was involved, saying: ―I didn‘t even do this. To get a hold of this person to tell them that they know what and that‘s it.‖ Sergeant Laurie asked, ―You‘re a middle man?‖ Defendant answered, ―Yeah, I‘m also a fuck man. They say you shut up — none of my thing. Just ask me to get a hold of these people, . . . you know they know you don‘t gotta do nothing, just tell them that I said that‘s it, . . . homie told me to tell you this and this and this and that, you know — yeah, we know — and that‘s it.‖ Sergeant Laurie asked, ―So what you‘re saying is somebody . . . calls you, tells you to call somebody?‖ Defendant said, ―Yeah, but see —‖ Sergeant Laurie asked, ―You don‘t know

what‘s on either side?‖ Defendant said, ―They already talk[ed] about it through . . . so when they decide when, they call me and let them know, they already know.‖ Sergeant Laurie asked, ―So you‘re saying that somebody here has already talked to somebody here? They‘ve already made the plans of what they‘re gonna do and the whole thing, all they‘re waiting for is somebody to say, yes, so they call you and tell you to call somebody and you don‘t say anything except, yes.‖ Defendant said, ―That‘s it.‖ Sergeant Laurie asked, ―And they act on that, because you‘re the in-between?‖ Defendant said, ―Yes. I — I‘m not gonna fall for this shit, man.‖ Sergeant Laurie asked, ―Were you the in-between on Maxson?‖ Defendant said, ―No. I — I can tell you who was.‖ Sergeant Laurie laughed and said, ―Tell me who was the in-between, you‘re saying you‘re not the in-between on Maxson?‖ Defendant said, ―Yeah, not the in-between, the one on Maxson, I had nothing to do with that one. . . . I mean somebody had asked me if I wanted to be part of it, but I said, no. [¶] . . . [¶] ‘Cuz I . . . know the family real good.‖ Sergeant Laurie said, ―There are situations where brothers kill brothers.‖ Defendant said, ―Yeah, I know there is.‖ Sergeant Laurie said, ―[T]he fact that you know the family real good doesn‘t necessarily ‗hold any water‘ with this because . . . often times when people are told to do things there‘s no choice in the matter. . . . [I]f you wanna tell me what‘s up on this thing we‘ll take a look at it, if what you say is true, I‘m not gonna put a case on you, I‘ll tell you that right up front. . . . [T]he last thing I wanna do is put you in jail for something you didn‘t wanna do.‖ Defendant said, ―I didn‘t do nothing, man.‖ Sergeant Laurie said, ―Well you‘re saying that, but you‘re also sitting there saying, I know who was the middle man.‖ Defendant said: ―I didn‘t do nothing, I mean come on everybody knows in the streets, everybody hears, everybody knows everything.‖ Sergeant

record on appeal. Indeed, defendant acknowledges that the ―appellate record in this case does not even affirmatively establish [defendant‘s] Mexican nationality, much less a violation of consular rights, or prejudice stemming therefrom.‖ He requests, however, that he have ―an opportunity to make a particularized showing‖ at an evidentiary hearing and be provided discovery, the opportunity for investigation, and the assistance of counsel and the Mexican consulate. Whether defendant can establish his Mexican nationality, a violation of his consular rights, and prejudice from an asserted violation of consular rights based on evidence outside of the record on appeal is a matter for a habeas corpus petition. (People v. Mendoza (2007) 42 Cal.4th 686, 711.) Defendant contends that habeas corpus is not an effective remedy because even if an evidentiary hearing were to be granted on one or more of his claims, he would bear the burden of showing prejudice. Relying on language in deportation cases decided by federal courts, he contends that at the hearing he is requesting he need only ―make a prima facie showing that (1) he did not know of his right to contact consular officials; (2) he would have done so had he known; and (3) such consultation would have led to the appointment of counsel and/or assistance in creating a more favorable record to present to the court.‖ Once this showing is made, he says, the burden would shift to the state to show ―that contact with the consular officials would not have resulted in assistance.‖ But the high court has said it is ―extremely doubtful‖ that a defendant can secure reversal of his conviction on a consular rights claim with no showing of prejudice. (See Breard v. Greene (1998) 523 U.S. 371, 377 [―Even were Breard‘s Vienna Convention claim properly raised and proved, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.‖].) Nor are we persuaded by defendant‘s speculative contention

addresses or telephone numbers in violation of his right to confrontation and a fair trial under the Sixth and Fourteenth Amendments. We recently rejected a similar claim regarding this same order in Valdez, supra, 55 Cal.4th at pp. 106-118. After describing our opinion in Alvarado, we observed that ―as Alvarado establishes, the record was sufficient to justify a pretrial nondisclosure order.‖ (Valdez, at p. 107.) ―Specifically, the prosecution presented evidence that the Mexican Mafia ordered at least one of the murders, posed an extreme danger to the People‘s witnesses, had an excellent intelligence network, and demanded documentation identifying an individual as a government witness before approving a contract to kill a witness.‖ (Ibid.) We also observed that ―the protective order here at issue did not suffer from the same constitutional infirmity that afflicted the order in Alvarado; it did not authorize permanent nondisclosure of the identity of any witness, crucial or otherwise.‖ (Ibid.) We further rejected the defendant‘s claim in Valdez that the protective order was constitutionally invalid to the extent it allowed the prosecution to withhold the witnesses‘ identities until they appeared to testify at trial. (Valdez, supra, 55 Cal.4th at pp. 107-108.) We observed that as a factual matter, the record revealed that the defense knew the witnesses‘ identities well before this time. (Id. at pp. 108-109.) As a legal matter, we noted that ― ‗[t]here is no general constitutional right to discovery in a criminal case‘ ‖ and that ― ‗ ―[t]he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.‖ ‘ ‖ (Id. at pp. 109-110, quoting Weatherford v. Bursey (1977) 429 U.S. 545, 559-561 [no constitutional violation where the prosecution surprised the defendant at trial by calling to the stand a previously unidentified witness and where there was no objection at trial, no request for a continuance, and no indication of substantial prejudice].) In particular, we found no

constitutional violation in Valdez resulting from the protective order because the defendant had been given several methods of investigating the witnesses, had interviewed the ―vast majority‖ of witnesses five days before trial began, never sought to modify the order even though the trial court had invited such a request if counsel determined that further disclosure was necessary, never requested a continuance before beginning cross-examination, and had effectively cross- examined witnesses he characterized on appeal as ―crucial‖ to the case against him. (Valdez, at pp. 110-116.) Here, defendant asserts that the nondisclosure orders ―would have made it difficult for counsel to obtain complete impeaching information, such as the witnesses‘ reputations for truthfulness,‖ motives to fabricate testimony, and circumstances raising a doubt regarding the accuracy of the information they gave law enforcement. As to Witnesses Nos. 1, 2, 3, 8, 9, and 11, referred to by the parties as ―stranger‖ witnesses, defense counsel told the court that he had no problem with maintaining the anonymity of these witnesses. Moreover, these witnesses and Witness No. 13 did not identify defendant or place him at the murder victims‘ home. As in Valdez, defendant‘s professed inability on appeal ―to determine whether these witnesses harbored any bias or prejudice against him or other defendants, whether they had reason to testify falsely, or where they were when they made their observations, did little, if anything, negatively to impact his case.‖ (Valdez, supra, 55 Cal.4th at pp. 114-115.) Defendant claims that Witnesses Nos. 14, 15, and 16 ―provided crucial evidence bearing on guilt, innocence, or penalty,‖ but the March 1996 order provided that, upon discovering the identities of Witnesses Nos. 14, 15, and 16, defendant‘s counsel could disclose that information to defendant ― ‗if such disclosure [was] necessary to adequately represent‘ ‖ him. (Valdez, supra,

after the trials of his former codefendants. Trial was then continued several times in 1997. On November 17, 1997, Esqueda filed a motion to continue the trial because he was in trial on a different case. On that same date, defendant filed an in propria persona ―ex parte motion to dismiss defense counsel and to appoint new counsel and for an in camera hearing.‖ At the November 17, 1997 hearing, the trial court continued the trial to December 12, 1997 and ordered seven witnesses to return at that time. It denied defendant‘s motion without prejudice and scheduled an in camera hearing on the motion for December 12, 1997. Defendant unsuccessfully objected, saying he was ―already prepared‖ to argue the motion. The court observed it was denying the motion because it was ―untimely in the extreme,‖ defendant had previously had different counsel and had Esqueda as an attorney for a long time, the case had been continued several times, and witnesses, some of whom had already testified four or five times in other trials, had appeared that day and were being inconvenienced. The court also noted that the witnesses were reluctant to come forward due to the nature of the charges and ―the players,‖ and that the ―longer the case goes [on], the more that reluctance hardens and the more difficult it becomes to obtain the testimony of witnesses.‖ It informed defendant that ―if I grant your request, what I am doing, in effect, is continuing the case for probably a year‖ because new counsel would need to become familiar with the former codefendants‘ trials as well as with this case. The court observed that ―it would have been certainly much better had the matter come to the court‘s attention in any of the many, many, many appearances that you had before me.‖ On December 12, 1997, Esqueda filed, and the court granted, another motion to continue the trial until December 29, 1997 because he was again in trial in a different case. The trial court ordered counsel not to become engaged in any other

jury trials without first contacting the court and said that if any other court ordered counsel to trial, counsel should have that court contact the trial court in this case. Also on this date, at the in camera hearing on defendant‘s motion to discharge counsel and appoint new counsel, defendant delineated various ways in which he found counsel‘s representation deficient. Defendant asked the court to dismiss counsel and appoint new counsel. He also said: ―We‘ve been trying to go to trial for the longest [time], because he felt that we were ready. I felt that we were ready at the beginning. We‘ve been trying to go to trial, and we‘ve been getting put [off] and put [off] and put [off].‖ The trial court denied the motion. It noted that through no fault of anyone, the case had been pending for a long period of time. The court said it understood defendant‘s frustration at ―not going to trial sooner‖ and estimated it would take a new attorney at least six months to ―get up to speed on the case.‖ It observed that the district attorney also had a right to a speedy trial. It also noted: ―[T]he matter is brought to my attention right on the eve, literally, of a trial date, . . . [which] makes me think it‘s not the most timely request I‘ve ever had. You know, at some point in the last year if Mr. Esqueda is not getting it all ready one might think, well, [defendant], do something about it, don‘t wait for a year.‖ Defendant said, ―Yeah.‖ The court repeated its concern about witnesses being reluctant, saying: ―You have to keep ordering these guys back every day under the threat of death, practically, to get them down here, some of them. So, again, the longer the case goes [on] the more difficult it is to ever get the case tried.‖ The court said it was convinced defendant could get a fair trial with current counsel if they both would ―give a little.‖ The court did not ―think‖ that counsel was ―incompetent‖ or had ―abandoned‖ defendant, or that there had been ―some breakdown between you two

We conclude that the trial court acted within its discretion in denying defendant‘s motion to discharge counsel. At the time the motion was made, the case had been pending for two years. Trial was imminent and, in fact, began about six weeks later. Defendant had no substitute counsel in mind; rather, he requested that the court appoint counsel. New counsel would have had to study the records in each former codefendant‘s trial as well as in this case, resulting in significant delays. A trial court may properly consider the delay inherent in changing counsel in evaluating timeliness. The trial court, which had been through at least one trial of the former codefendants, expressed concern that further delay would exacerbate the witnesses‘ reluctance to testify. The trial court also noted the absence of abandonment or inadequate representation by counsel or an actual conflict of interest. The court reasonably found that relieving counsel under these circumstances would result in ― ‗disruption of the orderly processes of justice‘ ‖ and thus denied defendant‘s motion. (Ortiz, supra, 51 Cal.3d at p. 983.) Defendant asserts that the trial court incorrectly applied the standard in People v. Marsden (1970) 2 Cal.3d 118 for substituting one appointed counsel for another rather than the Ortiz standard for discharging retained counsel and appointing new counsel. Under Marsden and its progeny, a ― ‗defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.‘ ‖ (People v. Taylor (2010) 48 Cal.4th 574, 599.) Defendant relies on the fact that the trial court stated at the conclusion of the hearing: ―The court has denied the — we‘ll call it a Marsden motion.‖ Defendant also cites the trial court‘s statements that it did not ―think‖ that counsel was ―incompetent‖ or had

―abandoned‖ defendant, or that there had been ―some breakdown between you two to the point where there is an actual conflict of interest.‖ Contrary to defendant‘s assertion, the trial court did not deny the motion merely because defendant had failed to demonstrate that counsel was incompetent or had abandoned him or that there was an irreconcilable conflict between defendant and counsel. In evaluating whether a motion to discharge retained counsel is ―timely, i.e., if it will result in ‗disruption of the orderly processes of justice‘ ‖ (Ortiz, supra, 51 Cal.3d at p. 983), the trial court considers the totality of the circumstances. (See United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 152; Verdugo, supra, 50 Cal.4th at p. 311.) Although a defendant seeking to discharge his retained attorney is not required to demonstrate inadequate representation or an irreconcilable conflict, this does not mean that the trial court cannot properly consider the absence of such circumstances in deciding whether discharging counsel would result in disruption of the orderly processes of justice. Here, defendant raised numerous concerns about retained counsel in his declaration filed in support of the motion to discharge counsel, and the trial court did nothing improper in discussing those concerns with defendant at the hearing. Defendant further contends that the trial court ―failed to conduct an adequate hearing to determine whether there was any merit‖ to defendant‘s complaints about counsel. But the transcript of the in camera hearing spans nearly 60 pages and demonstrates that defendant was given considerable leeway to identify and discuss with the court each of his concerns about counsel‘s representation, including what aspects of his investigation defendant found wanting and what motions defendant believed should have been filed. Further, counsel was given an opportunity to respond to these concerns. The trial court‘s findings that counsel was not incompetent and that no irreconcilable breakdown had occurred are

―When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‖ (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We determine ―whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‖ (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In so doing, a reviewing court ―presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053.) As noted, the prosecutor proceeded on alternate theories of conspiracy and aiding and abetting to demonstrate defendant‘s culpability for murder. Thus, the jury was instructed that there were four separate theories upon which criminal liability could be premised: (1) defendant conspired to commit that particular murder; (2) the murder was a natural and probable consequence of a murder that defendant conspired to commit; (3) defendant aided and abetted that particular murder; and (4) the murder was a natural and probable consequence of a murder aided and abetted by defendant. We first address the sufficiency of the evidence that defendant conspired to commit Anthony Moreno‘s murder. ―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.]‘ [Citation.]‖ (In re Hardy (2007) 41 Cal.4th 977, 1025-1026.) ―[A]ll conspiracy to commit

and Shyrock together at times after January 12, 1995 (when Witness No. 15 was released from prison), and defendant admitted he knew Shyrock well and considered him a friend. Under analogous precedent, the jury could reasonably infer that defendant entered the conspiracy to kill Moreno at one of those meetings or at some point in April 1995, after he was sponsored by Shyrock into the Mexican Mafia and before the April 22 murder. (See People v. Jurado (2006) 38 Cal.4th 72, 121 (Jurado) [―[a]lthough there is no direct evidence that defendant and [an accomplice] discussed in advance the killing of [the victim], there was evidence that they were alone together‖ ―shortly before the killing, during which a discussion and agreement could have taken place‖].) In addition, defendant was a family friend of Anthony Moreno‘s and was at Anthony‘s home on the afternoon of the murders. Defendant gave Anthony and Witness No. 15 heroin, which Witness No. 15 said was unusually generous. That evening, shortly before the murders, defendant met with perpetrator Jimmy ―Character‖ Palma from the Sangra gang outside defendant‘s apartment on Rose Street. Palma told defendant ―he was going to take care of business,‖ ―[n]ot to worry about it,‖ and that ―he was strapping‖ and ―[t]hey were strapped,‖ meaning they were armed. Palma then left in a car similar to that owned by perpetrator Danny ―Tricky‖ Logan. In addition, Witness No. 16 saw Logan‘s Nissan pulled over on Rose Street, and Logan‘s Nissan was one of the vehicles used to drive the Sangra gang members to the murder victims‘ house. Anthony ―Scar‖ Torres said that he had visited the home of victims Anthony and Gustavo ―Tito‖ Aguirre ―earlier in the day,‖ had given heroin to the people at the house, and said he would be back later that night to sell them drugs. In describing how the murders had been perpetrated, Palma said he had shown a man in the house a rock of heroin, and when the ―guy went to look at it, that is when‖

2. Murders of Gustavo “Tito” Aguirre, Maria Moreno, and the children Defendant contends that even if the evidence is sufficient to support the finding he conspired to murder or aided and abetted the murder of Anthony ―Dido‖ Moreno, it is insufficient to support the implied finding that the murders of Aguirre, Maria Moreno, and the two children were the natural and probable consequences of an agreement to kill Anthony Moreno. We disagree. ― ‗ ―A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.‖ ‘ ‖ (People v. Favor (2012) 54 Cal.4th 868, 881; see People v. Prettyman (1996) 14 Cal.4th 248, 262, 269.) ― ‗Liability under the natural and probable consequences doctrine ―is measured by whether a reasonable person in the defendant‘s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.‖ [Citation.]‘ ‖ (Favor, at p. 881.) The issue ―is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.‖ (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) Here, substantial evidence demonstrates a close connection between Anthony ―Dido‖ Moreno‘s murder and the simultaneous murders of the four other victims. Anthony ―Scar‖ Torres said the perpetrators of Anthony‘s murder were told not to leave any witnesses, and defendant, who was a family friend of the victims and had visited the victims‘ home on the afternoon of the murders, was aware that other individuals, including children, lived there. Because defendant met with Jimmy ―Character‖ Palma at about 9:30 at night, he was also aware that Anthony‘s murder would occur at night, when residents of a home would likely be present.

b. Analysis Defendant contends that the trial court prejudicially erred when it failed to redact statements by officers that implied ―unidentified informants had reported that [defendant] was responsible for setting up the murders, and was in danger because children had been killed.‖ We disagree. As noted, the trial court ordered the redaction of Sergeant Laurie‘s statement that defendant had a ―green light‖ on him because he had been involved with killing babies. Moreover, contrary to defendant‘s assertion, the officers‘ statements that defendant had ―set . . . up‖ the murders in this case were not ―inadmissible hearsay.‖ Rather, they served the nonhearsay purpose of giving context to defendant‘s responses. (See People v. Riccardi (2012) 54 Cal.4th 758, 801-802, fn. 21 (Riccardi) [detective‘s statements were properly admitted for the nonhearsay purpose of giving context to the interviewee‘s answers].) Moreover, the court instructed the jury that law enforcement officers were permitted to misrepresent evidence in their possession in order to motivate a suspect to confess, and that the officers‘ ―allegation[s]‖ in this case were ―not received for the truth of any allegation but because it is part of the statement and helps you judge the response of the defendant.‖ Thus, there is no reasonable likelihood the jury ―would consider [the] investigators‘ statements on the [tape] as substantive evidence of [defendant‘s] guilt.‖ (See Dubria v. Smith (9th Cir. 2000) 224 F.3d 995, 1002 [―Any impression that the jury may have had that it could consider [the detective‘s] statements to be true was specifically and timely corrected‖ by the trial judge‘s admonitions].) Nor do we agree with defendant‘s arguments that the officers‘ statements reasonably can be characterized as analogous to statements by a ―witness in a criminal case . . . express[ing] an opinion concerning the guilt of an accused‖ or statements by ―a prosecutor . . . express[ing] his personal opinion

reasonably have concluded that the statement, viewed in the context of its making — ‗a surreptitiously recorded meeting of Mexican Mafia members‘ — ‗marked the inception of a conspiracy to kill Dido‘ because he was a dropout, and that as such, ‗when made,‘ it ‗so far subjected [Shyrock] to the risk of . . . criminal liability . . . that a reasonable man in [Shyrock‘s] position would not have made it unless he believed it to be true.‘ (Evid. Code, § 1230.)‖ (Valdez, at pp. 143-144.) We further rejected the argument, also asserted by defendant here, that Evidence Code section 1230 does not apply to those portions of the statement that are not specifically disserving to the interests of the declarant, and that the only part of Shyrock‘s statement that was specifically disserving of his penal interest was his statement ―I need a silencer.‖ (Valdez, at p. 144.) We reasoned: ―[T]he trial court could have reasonably found that, in context, the statement as a whole was specifically disserving of Shyrock‘s interest. In short, defendant‘s arguments show ‗only that a court might perhaps have been able to arrive at the conclusion that [Shyrock‘s] statement did not so far subject him to the risk of criminal liability that a reasonable person in his position would not have made it unless he believed it to be true. [They] simply do[] not show that a court was unable to arrive at the opposite conclusion. Therefore, [they do] not establish an abuse of discretion.‘ ‖ (Valdez, at p. 144, fn. omitted.) Defendant also asserts that Shyrock‘s statements ―lack sufficient indicia of reliability for admission‖ and hence violated his right to confrontation. The cases on which he relies preceded the high court‘s decision in Crawford v. Washington (2004) 541 U.S. 36, 51. Here the statements were not made to law enforcement but to fellow gang members and hence were not testimonial. (People v. Gutierrez (2009) 45 Cal.4th 789, 812-813 (Gutierrez) [statement by a three-year-old to his aunt not testimonial].)

Valdemar answered, ―Yes, sir.‖ Counsel said, ―Tell us what you told the grand jury about a silencer.‖ The court said: ―Well, I would prefer that if . . . you want him to tell you something about a silencer, rather than what he told somebody else somewhere else, ask him what you want to know. Okay?‖ Counsel said, ―I want to know what he told the grand jury —‖ The court said, ―Well, I don‘t want to know what he told the grand jury.‖ Counsel said, ―For impeachment.‖ The court said, ―Unless you have an offer of proof.‖ The court then asked Sergeant Valdemar, ―Did you make a different offer in front of the grand jury?‖ Sergeant Valdemar said, ―Yes.‖ The court asked, ―What did you say?‖ Sergeant Valdemar answered, ―That I thought he needed the silencer so he could kill the children without screaming and noise.‖ The court said, ―All right.‖ Defense counsel then explored Sergeant Valdemar‘s grand jury testimony. It is apparent from this exchange that the court did not understand from counsel‘s first question that Sergeant Valdemar had testified differently before the grand jury. The court reasonably requested that counsel ask Sergeant Valdemar directly about silencers rather than asking him to repeat what he told the grand jury. Thus, contrary to defendant‘s assertion, the court‘s comment, ―I don‘t want to know what he told the grand jury,‖ was not ―completely inappropriate.‖ Once this matter was clarified, the court was satisfied, and it allowed counsel to explore the area on cross-examination. Nor did the court ―overly demean[] the importance of [the] information counsel was attempting to bring out‖ by asking Sergeant Valdemar if he had testified differently in front of the grand jury. The court simply sought to ascertain if there was a basis for impeachment. Third, on direct examination Witness No. 15 exhaustively described how he had on three occasions on the day of the murders procured and injected heroin, and commented that this was how he had spent every day since his release from

Fourth, on direct examination Witness No. 16 testified he had ―been granted immunity.‖ In discussing the terms of that immunity, the prosecutor asked, ―What happens if you don‘t testify truthfully or you don‘t answer all the questions put to you?‖ Defense counsel said: ―Your honor, I will object to the . . . form of the question. It is for the jury to decide whether he is testifying truthfully.‖ The court said: ―But there is an agreement and order by the court. I think he is asking about the terms of what happens if the agreement is breached. I think it is important for the jury to know. What happens if you lie or the judge says you lie or you don‘t show up?‖ Witness No. 16 replied, ―I wouldn‘t be granted immunity.‖ The court said: ―And then what? You would be prosecuted for murder?‖ Witness No. 16 said, ―Correct.‖ Contrary to defendant‘s assertion, by asking Witness No. 16 what would happen if the ―judge says you lie,‖ the court did not usurp the jury‘s factfinding function by making itself the ―guarantor of Witness No. 16‘s truthfulness.‖ The point of the court‘s inquiry was that the witness had an incentive to testify truthfully and faced consequences if he did not, a point relevant to the jury‘s assessment of his credibility. Fifth, during cross-examination of Witness No. 16, defense counsel asked, ―How many prior felony convictions do you have?‖ Witness No. 16 said he had one for ―possession of stolen property when I was a juvenile‖ and denied he had ever been to state prison. Counsel asked, ―Have you ever been convicted for possession[] for sale[]?‖ Witness No. 16 said, ―No.‖ Counsel began to ask, ―When you left —‖ The court interjected: ―Just a second. Let‘s not move away from that issue. Was there a reason that question was asked?‖ Counsel said, ―I was handed a rap sheet this morning, your honor.‖ The court asked, ―Do you have a dope case?‖ Witness No. 16 said, ―I had a DUI, driving with possession of

PCP.‖ The court and the witness discussed this charge and the stolen property charge that occurred when the witness was 16 years old, and Witness No. 16 said he did not have any felonies as an adult. The court said, ―All right,‖ and asked counsel, ―Anything else?‖ Counsel said, ―Were you convicted in 1989 with assault with a deadly weapon?‖ The court said: ―Well, counsel, what year are you talking about? [19]89? How old are you?‖ Witness No. 16 said he was 24 years old. The court said, ―He couldn‘t have been convicted of anything in [19]89 as a matter of law.‖ Counsel said, ―CNV‖ means conviction.‖ The court said, ―Not if you are a juvenile, as you know.‖ Counsel started to ask, ―In 1990 were you convicted —‖ The court said: ―Before you ask questions where the answer may not be what you think, confer with counsel and take a look at your rap sheet and make sure you are not asking questions that you should not be asking. Juvenile adjudications are irrelevant, as you know. So look at it over the noon hour. You may ask something else.‖ Counsel said, ―Okay.‖ Contrary to defendant‘s assertion, nothing in this exchange is disparaging of defense counsel‘s knowledge of the law. Nor did the court make any statements as to whether Witness No. 16‘s juvenile conduct could be considered. Rather, defense counsel‘s questions raised only the issue of his convictions. Sixth, during cross-examination of Deputy District Attorney Monaghan, who had been the prosecutor in four prior proceedings in which Witness No. 14 had testified, defense counsel asked, ―What was the name of the district attorney that handled Witness No. 14‘s kidnap/robbery case?‖ Monaghan replied that he did not know because the case was handled by the Pomona office. Counsel asked, ―You don‘t know the name of the D.A.?‖ Monaghan said, ―No, I do not.‖ Counsel said, ―You testified under direct examination that you reviewed the file.‖ Monaghan said, ―I reviewed the file after Witness No. 14 was sentenced. And

after he was sentenced and all proceedings were completed in that case, I went and got the file and I have the file upstairs. You are free to take a look at it. I kept the file so it would be part of this particular record if anybody ever needed it.‖ He added, ―And it will have that name and also a disposition memo signed by the Pomona office as to why that particular disposition was offered Witness No. 14. I will be glad to bring it down and you can read it.‖ Counsel asked, ―Having read that file, you cannot tell me who the D.A. who handled that case was?‖ Monaghan said, ―I could not tell you who took the plea. I know the disposition memo —‖ Counsel interjected, ―Who was the D.A., Mr. Monaghan, who hand –‖ The prosecutor said: ―I will object to this, your honor. That is insulting.‖ The court said: ―I don‘t know about insulting. It is argumentative. You know who it is, I assume. If so, give him a name. It‘s not a secret. It‘s a public record.‖ Defense counsel said, ―I want to know if he knows.‖ The court said, ―He told you twice he does not.‖ Defendant fails to demonstrate how this exchange ―disparaged counsel‘s knowledge of the law and trial skills.‖ Indeed, the court showed considerable restraint given that defense counsel repeatedly asked the same question after the witness said he did not know the name of the deputy district attorney. Seventh, during cross-examination of Detective Davis, defense counsel asked about Detective Davis‘s interview of Witness No. 14 on June 21, 1995 and established that the interview was recorded and that Detective Davis had taken notes. Counsel then asked, ―If I asked you to go home and listen to the tape, or to the station, sorry, and to review your notes and come back at some later date and tell us what you heard and saw in your notes, would you be willing to do that?‖ The prosecutor objected on relevance grounds. The court said: ―Whether he would or would not is not relevant. If you want to make arrangements, do it.

Don‘t waste the jury‘s time. We have access to these items, I assume, here in court?‖ Counsel asked if he could have a moment, the court said, ―Sure,‖ and counsel then moved on to a different topic. Defendant makes no effort to demonstrate how this exchange disparaged defense counsel‘s knowledge of the law or his trial skills. The court merely asked counsel to engage in his logistical discussions with Detective Davis outside of the presence of the jury. Finally, during defendant‘s closing argument, counsel asserted that given that evidence was ―wholly lacking . . . there ought to be a reasonable doubt in everyone‘s mind regarding this case.‖ He asked, ―What evidence does the prosecution have to convict [defendant] of count 6 that he had the specific intent to willfully, deliberately with premeditation and malice kill Ambrose Padilla, a 6- month-old child?‖ The court said: ―Counsel, I will have to interrupt you. I hate to interrupt either counsel during argument, but I will do that. That is a misstatement of the law and that is not required in this case. If you want me to explain it, I will be glad to. I don‘t want the jury confused as to the law that applies to those counts. That is one theory as to how the defendant may be convicted of that count of four.‖ Counsel said, ―I‘m sorry?‖ The court said: ―That is one theory of four that may apply to that count. You certainly don‘t suggest that is the only one.‖ Counsel continued with his argument, saying: ―With respect to Count 5, I ask you the same question. With respect to Count 3, I ask you the same question. With respect to Count 2, I ask you the same question.‖ The court‘s comments again did not ―amount[] to improper advocacy for the prosecution‖ or disparagement of counsel. Rather, the court simply clarified — in a case involving five victims and four theories of murder — that premeditated murder was only one theory on which defendant could be liable for Padilla‘s

so. The reason we have a death penalty law that is constitutional is because you are guided by a list of factors that must be considered in this case, [defense counsel]. They are the factors that were read to the jury. Go ahead.‖ Defense counsel said, ―Thank you. You, the jury, can select the appropriate penalty and that is what I meant by unbridled discretion. You have the choice of life without the possibility of parole or death. I was not suggesting that you can run amuck and do whatever you want in this case. The decision is yours. And what I want you to do is not lower yourself and have that same mobster mentality. You must consider the factors in aggravation and the factors in mitigation and make a decision based on the law.‖ Defendant contends that the court ―[i]n effect . . . told the jury to impose death‖ and ―signaled the jury‖ that ―defense counsel was untrustworthy or stupid‖ and that his ―plea for a life sentence was not sanctioned by the law of the U.S. Supreme Court and should be rejected.‖ But the court merely clarified that the jury could not ― ‗act on whim or unbridled discretion,‘ ‖ a principle that benefitted both the defense and the prosecution since the circumstances of the capital crime might well evoke strong emotions. (People v. Lewis (2001) 26 Cal.4th 334, 393.) Second, in closing argument, the prosecutor said: ―Consider what it means to serve life in prison. The defendant would have access to every recreational facility and activity. Basketball, weights, television, movies, magazines, law library, visiting privileges. He would have access to all of those activities.‖ During defendant‘s closing argument, counsel said: ―Why let [defendant] breathe and watch T.V., work out, lift weights, have visits? It would be grossly inappropriate for you to consider those factors. But that is the revenge that they are seeking. Because the truth of the matter is that as a Mexican Mafia member who receives life without the possibility of parole, you are sent to Pelican Bay and he is in his

exception excuses or justifies defendant‘s failure to object, the claim is forfeited. (Ibid.) It is also meritless. First, defendant cites the prosecutor‘s statement about activities in which defendant could participate while in prison. (See ante, pt. II.C.1.) Any misconduct was harmless because the trial court admonished the prosecutor to limit himself to the evidence and not represent what prison conditions defendant might encounter. The court then instructed the jury to decide the case based only on the evidence received during trial, and we presume it followed that instruction. Second, the prosecutor argued: ―Finally, ladies and gentlemen, the law allows you to consider the travail [through] which the victims went while they were being killed. If you have not already done so, I suggest that some time you should close your eyes and based upon the evidence that you heard think about what it was like and try to picture what it was like in that room when those five people were being slaughtered. Dido was probably under the influence because of the amount of heroin you know he took that day. Tito Aguirre may have been under the influence as well, but we know that he was alert enough to run from his killers. Then there are Maria, Laura and Ambrose, the baby. Maria, it appears, tried to run. She was shot in the hip and went down and then was shot in the head at close range. You are entitled to consider in determining which penalty is appropriate what it was like for Maria to lay there knowing that she was going to die. It is appropriate for you to consider, in determining the penalty, the appropriate penalty, to consider what Maria may have felt when the bullet exploded into her brain. We can hope that Ambrose was not awake when he was shot. You recall the coroner‘s testimony that the bullet passed through his eyelid, the one that entered his brain, passed through his eyelid indicating that his eyes were closed at the time that [he] was shot. But if that were the case, if little

in jail and that Deputy Looney would testify about defendant‘s possession of shanks in jail. Following the opening statement, Juror No. 2 asked to approach the bench and said that he worked in general maintenance at the central jail and knew of Deputy Poindexter and Deputy Looney. Juror No. 2 said that he did not ―really know‖ Deputy Poindexter and Deputy Looney, ―but they work the same shift as me.‖ He had never seen either deputy outside of work, or socialized with either one of them, but said, ―I have had lunch with them in the same cafeteria.‖ He had never spoken to them about defendant, this case, or anything ―remotely related to the matter‖ and would weigh their testimony ―the same as I would weigh anybody else‘s testimony.‖ The court said: ―If you realize that it is not possible for you to follow the court‘s instructions re[garding] credibility and anything else, let me know. Will you do that?‖ Juror No. 2 said, ―Yes.‖ When the court invited questions, counsel said they had none. Defendant moved to discharge Juror No. 2 for cause because ―there is a risk of . . . potential bias.‖ The court denied the motion, stating that Juror No. 2 ―did not say anything that would remotely rise to the level of a challenge for cause‖ and noting that he ―appeared to me to be honest‖ based on ―his answers and demeanor.‖ The court stated that ―at this point I cannot say that there is any evidence that he has prejudged any issue or is likely to do so,‖ but the court invited counsel to renew the challenge for cause ―at any point‖ and to submit ―anything that you want me to read.‖ Defendant points us to no further discussion of the matter. Section 1089 ―authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is ‗found to be unable to perform his or her duty.‘ ‖ (People v. Bennett (2009) 45 Cal.4th 577, 621 (Bennett).) ―[W]hen a trial court‘s denial of a motion

The court then asked Juror No. 1 what she meant by ― ‗this is too heavy.‘ ‖ She said: ―His life is depending on me. I don‘t really know how to go about that. . . . If the jurors and I all agree on the death penalty, . . . that is too heavy on me. I don‘t really want that on my conscience. And if I decide to give him life in prison, I don‘t really know if I should do that either. I really don‘t know what to do. I can‘t really think too clearly right now.‖ She added, ―Since I can‘t really think too clearly, I feel like while deliberating, hearing the other jurors‘ opinions, it would kind of alter my opinion to go their way, not really thinking for myself, because I really don‘t know how to think right now. I‘m young. I don‘t know.‖ Juror No. 1 noted she had ―been sheltered all of my life.‖ The trial court said, ―There is no obligation back there for any juror to go the way the majority goes, just to do it.‖ Juror No. 1 said, ―That is another thing, too, I don‘t really know how to go about it. Just by listening to all the witnesses, it is just confusing. It is confusing me right now.‖ The court observed that the instructions gave guidance ―as to how to approach the case,‖ and Juror No. 1 agreed they ―helped make things clearer.‖ She added, ―But what is really getting to me is his life is in my hands. And I really just don‘t know how to go about that.‖ The court asked, ―Are you saying that you lack confidence in your ability to actually decide one way or the other?‖ Juror No. 1 answered, ―What‘s right. Exactly.‖ The court asked if Juror No. 1 had shared her feelings with the other jurors. She said ―Yes,‖ and said she had told them she ―wanted to be dismissed while everything is still in the beginning of the deliberations‖ instead of waiting until later which ―won‘t be fair to them or to [defendant] . . . or to myself. Especially to myself. Because it seems to me that the longer this is taking, the heavier it gets on me.‖

The court said that ―what we need are 12 jurors [who] can decide this most difficult issue based on a weighing of aggravation and mitigation and to do so clear headedly. Do you feel that you can do that . . . ?‖ Juror No. 1 said, ―I don‘t think I can.‖ The court asked, ―Do you have any doubt in your mind or heart about what you just told me?‖ Juror No. 1 said, ―The only thing that I really feel right now is the toll it has taken on me. It‘s just too much.‖ She also said that she felt ―weak‖ and ―tired,‖ and that when she went into work after court she found herself ―just wandering.‖ The court told Juror No. 1 that it did not want to let someone off a case merely because ―it is a little tough on them. . . . One of your duties is, even if it is tough, to get through it. . . . I need to know whether you can deliberate and look at this evidence, . . . and decide this case based on a rational and clear headed weighing of aggravation and mitigation. I need to know whether you can do that.‖ Juror No. 1 said, ―I don‘t think I can.‖ The court then said it would be inappropriate to excuse a juror just because she felt she might be in the minority and wanted to take the ―easy way out.‖ Juror No. 1 said, ―I feel like I‘m a strong person. If I believe in one thing, I will go with it even if I have to go against everybody. But the thing is I am not going to be fair to [defendant] because I am just confused right now and I believe that my opinion will be swayed to go towards . . . whoever‘s opinion that might strike me like maybe he seems he is right. My opinion would be to go his way because I am just confused. I can‘t really think right now.‖ The court then spoke privately with counsel. The prosecutor asked that Juror No. 1 be discharged, but defendant asked that she remain. The court said it was discharging Juror No. 1, stating: ―It is more than a reality that the juror is not capable of doing her duties at this phase. She indicates that she cannot think. She

1089 is committed to the discretion of the trial court, and we review such decisions by asking whether the grounds for such removal appear in the record as a demonstrable reality.‖ (People v. Thompson (2010) 49 Cal.4th 79, 137 (Thompson).) Here, the trial court had good cause to discharge Juror No. 1. She stated that she felt distressed, was losing sleep, could not focus, and was incapable of thinking or making a decision. The trial court, which was in a position to view her demeanor, found her credible. (See Thompson, supra, 49 Cal.4th at pp. 136, 138 [the trial court had good cause to discharge a penalty phase juror who appeared greatly agitated and said she could not sleep, did not want to talk to any other jurors, and was ―ready to run out that door‖]; People v. Collins (1976) 17 Cal.3d 687, 696 [juror properly discharged when she steadfastly maintained that she could not follow the court‘s instructions, that she had been upset throughout the trial, and that she wanted to be excused]; People v. Fudge (1994) 7 Cal.4th 1075, 1099-1100 [juror properly discharged because of anxiety about work].) Defendant contends that the trial court should have ―inquired of the other jurors what was said by Juror No. 1, and whether it appeared that Juror No. 1 was participating, and could realistically continue to participate in deliberations. The court should further have made inquiry regarding whether Juror No. 1‘s state of mind perhaps resulted from coercion or duress by other jurors.‖ We rejected a similar claim in Thompson: ―As we have cautioned, however, ‗a trial court‘s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury‘s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations.‘ ‖ (Thompson, supra, 49 Cal.4th at p. 137.) Here, the source of anxiety reported by Juror No. 1 was the penalty

That is the reason I am here. I am not here to make any deal. I have not been offered any kind of deal.‖ Witness No. 15 said he might be sentenced to 10 years, 25 years, or 35 years, noting, ―I don‘t really know yet.‖ He added, ―I did the crime and I deserve the time.‖ After his testimony, Witness No. 15 wrote to the court and asked if the court would contact the judge in Witness No. 15‘s case in Pasadena. He had previously written to the court before his testimony asking that he not be required to testify. On April 29, 1998, defendant filed motions for a new trial, to strike the special circumstance finding, and to reduce the penalty. The new trial motion was based on three grounds: ―1) Error in instructing the jury; 2) Prejudicial misconduct of the prosecution; [and] 3) Juror improperly dismissed.‖ The motion contained no further discussion as to what instructions defendant contended were erroneous or how the prosecutor had committed misconduct. On May 5, 1998, the prosecution filed an opposition to all of defendant‘s motions, asserting that substantial evidence supported the verdicts, while not addressing the three grounds identified in defendant‘s new trial motion. At the hearing on the motion, defense counsel said, ―I don‘t have anything . . . to add, and I don‘t want to be repetitive or redundant other than just a few things that I didn‘t include.‖ Counsel asked that the court make a part of the record ―the records that were received from Witness No. 15,‖ apparently referring to the letters this witness had written to the court. Counsel made this request ―[b]ecause it is my understanding that this person received a credit of time served on a 25 to life sentence after he sat here and made the representation to the jury, and I believe the People represented, that there were not going to be any deals or leniency given to him in this testimony. I know he wrote to this court asking the court to contact [the judge] in Pasadena and to convey to the sentencing judge in

People v. MacIel

AI Brief

IN THE SUPREME COURT OF CALIFORNIA

I. FACTS

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C. Penalty Phase Issues

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