People v. Dement (2011) · DecisionDepot

People v. Dement

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

California Supreme Court Nov 28, 2011 No. S042660Published

Before: Chin

Filed 11/28/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S042660 v. ) ) RONNIE DALE DEMENT, ) ) Sacramento County Defendant and Appellant. ) Super. Ct. No. 4679510 ____________________________________)

Defendant Ronnie Dale Dement was convicted of oral copulation in a local detention facility and of the first degree murder of fellow inmate Greg Michael Andrews. (Pen. Code,1 §§ 187, subd. (a), 189, 288a, subd. (e).) The jury found true the special circumstance allegations of murder while engaged in the attempted commission of oral copulation and, in a separate proceeding, of a prior conviction of murder. (§ 190.2, subd. (a)(2), (17).) It 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.

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

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution evidence On April 9, 1992,2 Greg Andrews was found dead in the jail cell he shared with three other individuals, including defendant. Defendant was implicated in Andrews‟s murder by the testimony of the other cellmates, defendant‟s statements and actions before and after Andrews was attacked, and the testimony or statements of inmates who overheard parts of the attack.

a. Andrews’s arrival at the jail On April 8, defendant, whose nickname was “Pico,” shared cell No. 8 in the Fresno County jail with John Benjamin and Jimmie Lee Bond. That evening, he was in the jail dayroom standing next to inmate Anthony Williams. About 30 minutes before the inmates returned to their cells for the night, a group of new inmates, including Greg Andrews, appeared. Referring to Andrews, defendant told Williams, “I hope they don‟t move him in my cell.” He then said something to the effect of, “They move him in my cell, I‟m going to do him” or “do his ass,” which Williams interpreted to mean defendant was going to kill Andrews. Andrews was assigned to a three-bunk cell occupied by defendant, Bond, and Benjamin. Defendant seemed upset about a fourth person being assigned to the cell. Defendant, Benjamin, and Bond inquired whether a mistake had been made placing Andrews in their cell because a cell in the tier immediately below them had only two occupants. They were informed Andrews would remain in their cell.

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large woman, was physically abusive to defendant. Once, when defendant had not done a chore, she slapped him with the back of her hand so hard that he “just flew.” Cabrera often heard Laverne yelling at defendant and saying, “ „Ronnie, you didn‟t do this, and I‟m going to beat the shit out of you.‟ ” Defendant visited Cabrera‟s house daily, and Cabrera would babysit defendant when his mother had to run errands or go out of town. Laverne would tell Cabrera she was leaving defendant with her for two days to visit friends and would end up leaving him for two weeks. Cabrera and defendant developed a mother-son relationship, and his grades went from D‟s and F‟s to A‟s and B‟s. Defendant asked Cabrera and her husband to adopt him. Cabrera spoke to Laverne about doing so, but Laverne declined, saying defendant was her only means of support. After this conversation, Laverne moved from the area with defendant, and Cabrera was unable to locate them. Cabrera next saw defendant when he was 18. Defendant, who still called Cabrera “Mom,” visited her with his wife, Lisa, and his daughter at Cabrera‟s new home in Fresno. The two resumed their relationship, and at the time of trial were close friends. Lisa Dement, defendant‟s wife, testified that she met defendant in 1978 or 1979 when she was 14 and he was 15. When they had their first child in 1980, defendant was in the California Youth Authority. When he was released, he went to live with Lisa at her parents‟ home. They were married in 1982 and eventually had two more children. Defendant introduced into evidence photographs of the children. When defendant was not incarcerated, he worked and provided for the children, taught them to “go the right way,” and was “there for them.” Lisa was with defendant when he shot his brother David. She testified she had never seen defendant so intoxicated, or act in that manner. At one point that day defendant was crying, and said he just wanted his brother to apologize to him.

At the time of her testimony, Lisa no longer considered herself married to defendant. Defendant wrote to and telephoned their children, and Lisa‟s mother took the children to visit him in jail about twice a month. Defendant was close to his children, and if he were executed, it “would hurt them a lot.” Ruth Martinez Escobedo, Lisa‟s mother, testified that defendant was very helpful performing chores around the house, and worked at various jobs, including at one point assisting the Escobedos with their janitorial business. Ruth described defendant as a loving, patient, and compassionate father. Both she and Solomon Escobedo, Lisa‟s father, testified that they regarded defendant as a son. Lori Escobedo, Lisa Dement‟s sister, testified that defendant was a good influence on her 13-year-old son Joshua. Joshua and defendant often spoke on the telephone, and defendant told Joshua to listen to his mother and go to school, and that jail was “no place to end up.” Cathy Olage, another of Lisa Dement‟s sisters, testified she had known defendant since she was nine, and he was like a brother to her. Defendant always told her to do the right thing, to go to school, to avoid drug use, and to listen to her parents. At the time of trial, Cathy was married with children, had her own home, and was a tax examiner. She had never been in any kind of trouble, and often thought about the advice defendant gave her. Defendant had expressed regret for his life of crime and drug use. Defendant‟s sister, Lorraine, testified that if defendant were executed, a piece of Lorraine would also die. Michael Wilson worked with defendant at a construction site, and was later incarcerated with him. Defendant worked long hours at the construction site, was very dependable, and his lead man had “good things to say about him all the time.” Al Medina, a member of Jehovah‟s Witnesses, had visited defendant in jail every week for about two and a half years. The two prayed and read scripture.

by an investigator. He opined that defendant suffered from an antisocial personality disorder, and that his manifestation of antisocial personality traits was quite severe. Individuals with this disorder lead lives that involve criminal behavior and violating the rules of society, and have manifested a strong pattern of improper behavior by the age of 15. As individuals with this disorder reach their 40s and 50s, the disorder tends to diminish or go into remission. According to Dr. Terrell, defendant never met his biological father, and had no healthy father role model. The men his mother brought into the house were typically criminals and drug addicts, “people who were about the most horrible and awful role models you could . . . set before a child.” When an individual is born with certain biological traits, such as an antisocial personality makeup, and then placed in an environment in which breaking the law is the norm or even encouraged, it is more likely that the person will develop an antisocial personality. In elementary school, defendant was a good student and an exceptional athlete. He lived in an area where street gangs were prevalent, and at some point after the age of 12, defendant joined a Hispanic gang. His older brother Larry was a member of a white supremacist gang, which created conflict between defendant and his brother. Defendant told Dr. Terrell that he had been a heavy drinker, and had used cocaine, heroin, methamphetamine, and a combination of heroin with cocaine or methamphetamine called “speedballing.” He had also sniffed either gasoline or paint fumes. Defendant told Terrell he had been using methamphetamine, cocaine, heroin, and alcohol continuously for at least three days before he shot his brother. Cocaine and methamphetamine tend to make the user more paranoid and violent. Individuals who were violent while on cocaine were only so in the short term, but chronic users of methamphetamine “can be paranoid, psychiatrically violent for days, weeks, months, even up to a year after the time they use the

move to strike one sentence of Johnson‟s statement as testified to by Lee, and objected at times during Lee‟s testimony on the grounds of hearsay, relevance, lack of foundation, calling for a narrative, and speculation. Hence it appears the trial court made no express ruling regarding admission of that statement. On direct examination, Martinez denied knowing defendant or being able to recognize his voice. He did not recall or denied having made several observations or hearing certain statements during the night of April 8 to 9, the night the victim was killed. On cross-examination, Martinez testified that he was interviewed by a law enforcement officer on April 9, the morning the victim‟s body was discovered, but did not recall being interviewed again on April 13, the date of his prior statement. Martinez also said that before his testimony at trial, the prosecution had shown him an April 13 statement. Martinez started to read it, but “didn‟t remember saying any of that.” When asked if “anyone in law enforcement tried to get you to say things about what happened that night that didn‟t happen that night,” Martinez responded, “No.” Martinez also testified on cross-examination that he had been arrested once or twice for giving false information to police officers, had suffered three prior felony convictions, agreed with defense counsel that it was “fair to say that sometimes you tell law enforcement officers the truth and sometimes you don‟t,” and stated that half of what inmates said in jail or prison regarding what they had done or were going to do was exaggeration. Outside the presence of the jury, defense counsel questioned Detective Christian, who had participated in the April 13 interview, regarding whether the Martinez who was interviewed on that date was the same person who testified at trial. After Christian identified Martinez as the individual he had interviewed, defense counsel saw no “reason to voir dire this witness,” and stated they did not “have any evidence . . . to dispute that this is the same person.” The trial court ruled that Martinez‟s “lack of memory [was] feigned and contrived,” and

[Citation.] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford v. Washington (2004) 541 U.S. 36, 60, fn. 9 (Crawford); see California v. Green (1970) 399 U.S. 149, 161 [“[N]one of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial”].) The testimony by Johnson and Martinez at trial gave the jury the opportunity to assess their demeanor as they denied making or asserted lack of recollection regarding their prior statements. (People v. Martinez (2005) 125 Cal.App.4th 1035, 1050; see California v. Green, at p. 160.) Defendant “received what the confrontation clause requires: a full opportunity to confront and cross- examine” Johnson and Martinez. (People v. Stevens (2007) 41 Cal.4th 182, 199 (Stevens). Relying on Douglas v. Alabama (1965) 380 U.S. 415, 420, defendant contends that “ „effective confrontation of [Johnson and Martinez] was possible only if [these witnesses] affirmed the statement[s]‟ ” as their own. Because Johnson and Martinez did not affirm the statements, defendant contends they could not “defend or explain” them as that language is used in Crawford. (Crawford, supra, 541 U.S. at p. 60, fn. 9.) The high court later characterized as dictum the language in Douglas v. Alabama on which defendant relies, and noted that “[o]f course, a witness can be cross-examined concerning a statement not „affirmed‟ by him . . . .” (Nelson v. O’Neil (1971) 402 U.S. 622, 627.) Moreover, unlike the witness in Douglas v. Alabama, Johnson and Martinez did not invoke their Fifth Amendment privilege against self-incrimination and refuse to answer any questions about the crime, a circumstance that would have rendered them “totally unavailable at the trial for any kind of cross-examination.” (Nelson v. O’Neil, at p. 628; see Douglas v. Alabama, supra, 380 U.S. at p. 416.) Finally, the phrase “defend or explain” in

are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fns. omitted.) “Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.” (People v. Clark (1993) 5 Cal.4th 950, 985 (Clark).) We also keep in mind “the purpose behind [the] decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” (Arizona v. Mauro (1987) 481 U.S 520, 529-530.) If the defendant, after invoking his right to counsel, initiates a statement to police, “nothing in the Fifth and Fourteenth Amendments . . . prohibit[s] the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.” (Edwards v. Arizona, at p. 485.) Here, Detective Christian‟s statement telling defendant that he had interviewed defendant‟s wife regarding an apparently unrelated February 1992 homicide, and asking whether defendant knew Tom Rutledge, did not constitute interrogation. Given the circumstances that neither the name of defendant‟s wife nor that of Tom Rutledge had arisen in the investigation of Greg Andrews‟s murder, and Christian had no information that would link Tom Rutledge to Andrews, we cannot say that Christian should have known that defendant “would suddenly be moved to make a self-incriminating response.” (Rhode Island v. Innis, supra, 446 U.S. at p. 303; see id. at pp. 294-295, 303 [declining to conclude officers should have known that their brief conversation with one another in the suspect‟s presence expressing concern that children in the area might discover a missing shotgun and hurt themselves was reasonably likely to elicit an

knew about the gang. Ybarra understood he was to share this information as long as he lived. The gang coordinator also told Ybarra he wanted him to infiltrate prison gangs and work undercover to “prove to him I wanted out.” Ybarra was unable to infiltrate because one of the gang members “pulled [his] cover.” Once his cover was “blown,” Ybarra was not asked if he would still try to obtain as much information as he could about some gang members. Ybarra wrote to the gang coordinator explaining his cover was gone, and he could not infiltrate, but he never received a response. In about February 1991, Ybarra was released on parole in Fresno County. Ybarra spoke to his parole officer about the debriefing process. Ybarra did not ask for a shorter parole, or for leniency if he violated his parole, because “they‟re not going to give you something special just because you‟re going to debrief.” Ybarra simply wanted “to get out of the gang.” In January 1993 Ybarra was incarcerated in the Fresno County jail on a drug- related charge. Ybarra‟s cell was near defendant‟s cell. Ybarra could tell defendant was either a Nuestra Raza member or a “sympathizer” with that gang. Ybarra started obtaining names of gang members from defendant for debriefing. After Ybarra learned defendant was in jail on a murder charge, Ybarra “got the idea of he‟s giving me all these names, maybe I can work him on confessing, and I knew that if I could get that, I pretty much knew that I‟d get a deal from the D.A.” Ybarra said that “[a]nybody knows that . . . if you know about a murder, . . . of course [law enforcement is] going to want to know about it.” No one told Ybarra they wanted him to report any statements defendant made about Greg Andrews‟s murder: “No one ever told me to do anything.” Ybarra acted on his own. Ybarra wrote a note to law enforcement saying he could obtain information on the murderer of Greg Andrews. Detective Christian met with him. Before Ybarra met with Christian he had already received kites from defendant, including

expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.‟ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67 (Coffman and Marlow).) Here, the trial court properly determined that Ybarra was not a government agent at the time he received the kites from defendant. Unlike the informant in Henry, on which defendant relies, Ybarra had no preexisting position as an informant. (Henry, supra, 447 U.S. at p. 266.) Contrary to defendant‟s assertion, Ybarra did not become an agent for purposes of Massiah simply because he began a debriefing process with Corcoran prison authorities to end his gang affiliation two years before he met defendant. Rather, we have held that a “general policy of encouraging inmates to provide useful information does not transform them into government agents.” (People v. Williams (1988) 44 Cal.3d 1127, 1141 [that the “sheriff‟s department followed the practice of accepting information provided by inmates, and, when feasible, of rewarding inmates for providing that information,” and inmates were “probably aware of that policy,” was insufficient to demonstrate the informant was a government agent].) Nor, contrary to defendant‟s assertion, did Detective Christian give “his imprimatur to Ybarra‟s scheme . . . in the hope that Ybarra would obtain incriminating information or statements by” defendant. Indeed, as a preliminary matter, it appears both kites admitted at trial were received by Ybarra before his first meeting with Detective Christian on or about April 1. (People v. Fairbank (1997) 16 Cal.4th 1223, 1234, 1248 (Fairbank) [no U.S. Const., Sixth Amend. violation with respect to notes and information the defendant gave a fellow inmate before the inmate first contacted the police].) Ybarra testified that he had received the second kite before ever meeting with Christian. In addition, Christian testified that Ybarra described certain kites he had in his possession before his first meeting with Christian, including the first kite containing the language “[d]ude was my

brother.” Although this statement was not admitted for its truth, apparently because Christian had no means of knowing whether Ybarra actually possessed such a letter, it is evidence that Ybarra described a kite containing this language at his first meeting with Christian. The circumstance that such a letter was ultimately produced at the second meeting indicates that Ybarra most likely had the letter before his first meeting with Christian. Even assuming the first kite was received after Ybarra‟s first meeting with Detective Christian, nothing in Christian‟s statements to Ybarra demonstrates that Christian intentionally created or knowingly exploited a situation likely to induce defendant to make incriminating statements without the assistance of counsel. (Maine v. Moulton, supra, 474 U.S. at p. 176; Henry, supra, 447 U.S. at p. 274.) Defendant relies on Christian‟s statement that Ybarra should retain anything he received from defendant. Such passive behavior on the part of Ybarra was unlikely to induce defendant to make incriminating statements. More critically, Christian did not tell Ybarra to write to defendant, and “specifically told him that he was not to elicit information from [defendant] on our behalf, that he was not to discuss the case with him and then bring me those letters, that I didn‟t want those.” He also told Ybarra he could not ask defendant anything “specific to this case” because defendant had invoked his right to counsel. Ybarra testified that no one told him to report statements defendant made about Greg Andrews‟s murder; “[n]o one ever told me to do anything.” Moreover, Ybarra was promised no benefit if he produced the kites. Rather, Detective Christian told Ybarra he “could make him no promises,” and did not tell him he would work with the district attorney on Ybarra‟s behalf. Christian told Ybarra he could not guarantee anything, that all he could do was turn over the kites to the district attorney and then the district attorney would contact Christian. “The requirement of agency is not satisfied when law enforcement officials

defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for” any prior murder. (People v. Balcolm (1994) 7 Cal.4th 414, 427.) The court instructed the jury that the reference to defendant‟s alleged earlier crime could only be considered to give context and meaning to defendant‟s written statement, and could not be used as evidence of defendant‟s criminal disposition or in deciding whether he was guilty of the current charges. We presume the jury followed that instruction. (People v. Avila (2006) 38 Cal.4th 491, 574.) In light of these factors, the trial court acted within its discretion in finding the probative value of defendant‟s statements was not substantially outweighed by the probability that their admission would create a substantial danger of undue prejudice. Even if the trial court had erred in admitting the reference to defendant‟s asserted prior murder, there is no reasonable probability he was prejudiced. As noted, the court repeatedly instructed the jury as to the limited purpose for which it could consider the reference to defendant‟s alleged prior conduct. Moreover, defendant proceeded primarily on the theory that Benjamin or Bond had committed the murder, and the jury was informed that Benjamin had a prior murder conviction. In addition, the evidence of guilt was overwhelming, and included defendant‟s displeasure at a fourth person being placed in the cell, his awareness that Andrews was friends with Rutledge, who was an enemy of defendant‟s, defendant‟s statements before the attack on Andrews that defendant was going to “do his ass” and “take care of the home boy that had just been put into his tank,” the detailed testimony of defendant‟s cellmates regarding defendant‟s attack on Andrews, defendant‟s statements to other inmates later that morning that he had killed someone and describing the attack, defendant‟s solicitation of help from other inmates to remove Andrews‟s body from the cell,

apply to consenting adults”]; see § 286, subd. (e) [similar provision for sodomy].) But murder committed in the perpetration of or attempted perpetration of all proscribed oral copulation, including oral copulation under section 288a, subdivision (e), is first degree murder under the felony-murder rule. (§ 189.) Application of the felony-murder rule to subdivision (e) is theoretically troubling because the rule would apply even when the only participants in the oral copulation act are consenting adults. Although “the power to define crimes lies exclusively with the Legislature” (People v. Farley (2009) 46 Cal.4th 1053, 1119 (Farley)), and not this court, it is not clear why, in the abstract, section 288a, subdivision (e) should constitute a serious and inherently dangerous felony warranting invocation of the felony murder rule. (See People v. Cavitt (2004) 33 Cal.4th 187, 197 [“only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated” in § 189]; People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6 [“Under the felony-murder rule, a homicide is murder when it occurs in the course of certain serious and inherently dangerous felonies”].) Defendant does not, however, challenge his conviction on this basis. Moreover, there is substantial evidence that the oral copulation in this case was forcible. Finally, the jury expressly found defendant guilty of first degree murder on two theories: premeditated murder and felony murder. Thus, whatever theoretical problems that may exist due to the circumstance that oral copulation proscribed by section 288a, subdivision (e) does not appear to require force or fear do not apply here. 17 The complete jury instruction provided: “Defendant is accused in Count Two of the Information of having committed the crime of unlawful oral copulation by a prisoner, violation of Section 288a(e) of the Penal Code. Any person, while confined in any local detention facility, who engages in any act of oral copulation with another person is guilty of the crime of unlawful oral copulation in violation of 288a(e) of the Penal Code. “In order to prove such crime, each of the following elements must be proved[:] 1. A person engaged in an act of oral copulation with another person; and, 2. At the time of the act, such person was confined in a local detention facility. (footnote continued on next page)

During his rebuttal argument, the prosecutor said: “I‟d like to go through some of the testimony — some of the statements that were made by the defense attorneys in this case. I‟d like you to recall something with respect to the Bond and Benjamin conspiracy. Remember, right here in these United States, there‟s a Fifth Amendment right. You don‟t have to be interviewed by a police officer. You don‟t have to testify. At any time, anywhere along from the first morning, neither Bond nor Benjamin didn‟t have to say a thing, but they did. I want you to bear that in mind.” Defense counsel objected, and asked for a conference. The trial court suggested it reserve ruling, and the prosecutor‟s argument continue, and defense counsel agreed. Later in his argument, the prosecutor said without objection: “Both men basically came and said, „What I‟m telling you here today after I‟ve thought about it, I‟ve read my statements, I‟ve been cross-examined, I‟ve given you my best effort.‟ That was the final statement from these men.” The prosecutor also said without objection: “And you could convict this man based on simply the testimony of Benjamin and Bond. And when you look at their testimony, I submit to you that most of what they told you was the truth. They pretty much at this point in time had to. You could ignore that testimony completely. Say they didn‟t come forward. Say they decided to sit here and take the Fifth, and we provided to you the testimony instead of Anthony Williams, Brad Nelson, Albert Martinez, Eric Johnson.” After the prosecutor‟s argument, defense counsel moved for a mistrial on the ground of prosecutorial misconduct, asserting that Bond had in fact asserted his Fifth Amendment right at the preliminary hearing in this case, and the reference to “neither Mr. Benjamin nor Mr. Bond invoking their Fifth Amendment rights was to further spotlight the fact that our client has availed himself of [his] Fifth Amendment rights.” The trial court denied the mistrial motion.

8. Restriction on cross-examination Defendant contends that the trial court improperly restricted his cross- examination of his cellmate, Benjamin. We disagree. On direct examination, the prosecution established that Benjamin had been convicted of murder in 1974. During cross-examination, outside the presence of the jury, defense counsel stated that Benjamin had a history of blackouts, and “has always attributed his homicide to such a blackout.” Counsel also asserted that Benjamin took the stand during his murder trial and “offered testimony that some other dude did it, and once he got to [prison], he accepts full responsibility and says, „I did it.‟ And I would be offering that for purposes of impeachment.” Counsel noted, apparently relying on prison interviews, that Benjamin “keeps saying things like, „Benjamin does not seek to suggest that the blackout diminished his responsibility for the . . . shooting. He remembers the shooting but does attribute his poor judgment and inaccurate aim to his intoxication at the time.‟ ” Counsel intended to demonstrate that Benjamin “20 years back in another homicide pointed the finger of responsibility toward another party . . . . [¶] . . . much as what he‟s doing now.” The trial court stated that it was not interested in delving into Benjamin‟s case. It sustained the prosecutor‟s objection, ruling: “There may be no reference to what occurred in that other case with respect to this witness denying it, blaming it on another dude and then later admitting that he was the one that did it. That is strictly collateral.” “[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler (1992) 4 Cal.4th 284,

296-297.) Here, it is not apparent, as defendant assumes, that Benjamin‟s testimony in his murder trial was false, as opposed to his later statements to prison personnel. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1226-1227 [assertion that witness had committed perjury when he said he was lying during a different proceeding not supported by the record and hence of minimal probative value].) In addition, presentation of this evidence would have required a significant time- consuming detour into the circumstances two decades earlier under which each statement was made. Moreover, the jury was well aware that Benjamin was in the cell with defendant during the murder, and had every motivation to shift blame away from himself. The trial court acted well within its discretion under Evidence Code section 352 in precluding exploration of this collateral matter. (People v. Gurule (2002) 28 Cal.4th 557, 619 [the trial court did not abuse its discretion by excluding evidence that a witness had in other crimes admitted some blame but shifted the bulk of the responsibility to others, as it was time-consuming hearsay and character evidence that was not particularly probative].) Contrary to defendant‟s claim, the asserted error did not violate his rights to confront witnesses or to present a defense. Defendant fails to demonstrate, as he must to prevail on his confrontation claim, that the “cross-examination would have produced „a significantly different impression of [the witness‟s] credibility.‟ ” (People v. Frye (1998) 18 Cal.4th 894, 946.) Benjamin was impeached throughout his testimony by inconsistencies between his trial testimony and his earlier statements to police, to a defense investigator, and at a civil deposition; his prior felony convictions for murder, drunk driving, sexual assault, bank robbery, and a narcotics-related offense; the circumstance that he was 45 years old at the time of trial, and the longest period of time he had spent not incarcerated since he was 12 years old was 14 to 16 months; his history of suffering from alcohol- related blackouts; his willingness to give information to law enforcement in the

doubt standard with a preponderance of the evidence test. We have previously rejected similar arguments as to many of these instructions, noting that CALJIC Nos. 1.00, 2.21.2, 2.22, 2.27, and 2.51 are unobjectionable when, as here, they are “ „accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People‟s burden of proof.‟ ” (People v. Kelly (2007) 42 Cal.4th 763, 792 (Kelly); see People v. Lindberg (2008) 45 Cal.4th 1, 33-35 [there is no reasonable likelihood CALJIC No. 2.50, when considered with other instructions, would lead the jury to believe the prosecution was not required to prove all elements of the murder and the special circumstance allegation beyond a reasonable doubt].) A similar analysis pertains to the language of CALJIC No. 1.02 as modified. Moreover, we have previously concluded that CALJIC No. 8.20, which defines deliberate and premeditated murder, does not dilute the prosecution‟s burden to prove guilt beyond a reasonable doubt. (People v. Tate (2010) 49 Cal.4th 635, 697-698.) For the same reasons, we reject defendant‟s challenge to CALJIC No. 8.67, which defines deliberate and premeditated attempted murder. Defendant further contends that CALJIC Nos. 1.00, 1.02 (modified), 2.01, and 2.51 diminish the prosecution‟s burden by erroneously telling the jury it was to decide between guilt and innocence, instead of determining whether guilt had been proven beyond a reasonable doubt. We have rejected this argument as to CALJIC Nos. 1.00, 2.01, and 2.51, and the same reasoning applies to CALJIC No. 1.02 as modified. (People v. Crew (2003) 31 Cal.4th 822, 847-848.) CALJIC No. 2.51 (evidence of motive) does not shift the burden of proof to the defendant to show an alternative motive to that advanced by the prosecution. (People v. Solomon (2010) 49 Cal.4th 792, 827.) CALJIC No. 2.21.2 (witness willfully false in one material part) does not lighten the prosecution‟s burden of proof by allowing the jury to credit prosecution witnesses after finding only a mere

People v. Dement

IN THE SUPREME COURT OF CALIFORNIA

I. FACTUAL BACKGROUND

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C. Penalty Phase

C. Penalty Phase Issues

III. CONCLUSION We affirm the judgment. CHIN, J.

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