People v. Gonzales and Soliz (2011) · DecisionDepot

People v. Gonzales and Soliz

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

California Supreme Court Jul 28, 2011 No. S075616Published

Before: Werdegar

Filed 7/28/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S075616 v. ) ) JOHN ANTHONY GONZALES and ) MICHAEL SOLIZ, ) ) Los Angeles County Defendants and Appellants. ) Super. Ct. No. KA033736 ____________________________________)

A Los Angeles County jury found defendants John Anthony Gonzales and Michael Soliz guilty of the first degree murder of Lester Eaton (count 1), Elijah Skyles (count 4) and Gary Price (count 5). (Pen. Code, §§ 187, 189.)1 The jury found true the special circumstance allegations of multiple murder and murder during the commission of robbery. (§ 190.2, subd. (a)(3) & (17)(A).)2 At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales on counts 4 and 5 and hung on all other penalty phase verdicts. At the penalty phase retrial, a new jury returned a verdict of death for Gonzales on

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Both defendants were also found guilty of robbery (§ 211), and of criminal street gang (§ 186.22, subd. (b)(4)) and personal gun use (§ 12022.5, subd. (a)) enhancements for the robberies and murders.

count 1, a verdict of life without the possibility of parole for Soliz on count 1, and a verdict of death for Soliz on counts 4 and 5. The trial court denied defendants‟ motions for a new trial (§ 1181) and for modification of the penalty (§ 190.4, subd. (e)), and sentenced them to death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We affirm the judgments. INTRODUCTION Defendants were members of the Puente gang, a Hispanic street gang in the City of La Puente. They were charged with two separate sets of murders. In the first, Lester Eaton was killed while defendants robbed the small neighborhood store he owned, the Hillgrove Market. Gonzales‟s fingerprints were found on items in the getaway vehicle. The testimony of witnesses to defendants‟ actions before and after the robbery-murder linked both defendants to the crime. Additionally, in separate, taped conversations, each defendant admitted having participated in the robbery, and Gonzales admitted he was the shooter. The victims of the second set of murders were Elijah Skyles and Gary Price, African- American teenagers who were shot numerous times at a gas station. The prosecution theorized defendants killed Skyles and Price in retaliation for the murder of a member of the Puente gang two weeks earlier by members of the Neighborhood Crips gang. Several eyewitnesses identified Soliz as the shooter, with Gonzales providing backup. In a tape-recorded conversation, however, Gonzales said he had been the sole shooter and sole participant in the Skyles and Price murders. At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales for the Skyles and Price murders, but could not reach a verdict as to Gonzales for the Eaton murder or as to Soliz for either set of murders. At the penalty retrial, Gonzales took the stand for the first time in the proceedings, admitted he had shot Eaton during the Hillgrove Market robbery, and

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(5) Testimony of Richard F. Alvarez Richard F. Alvarez knew defendants Gonzales and Soliz; Alvarez‟s brother was married to Gonzales‟s sister. On the night of the murder, between 7:00 and 8:00 p.m., Alvarez received a call from Gonzales, who asked Alvarez to pick him up from the corner of Seventh Street and Turnbull Canyon Road. Alvarez drove there and picked up Gonzales and Soliz, along with a third individual he knew as “Clumsy” (whose real name was Michael Gonzales). Alvarez dropped the three men off at the house of a woman named Jennifer, where Alvarez and defendants remained the rest of the night partying. Deputy Woodrow West was a homicide investigator who testified about an interview he had with Alvarez some time after the Hillgrove Market robbery- murder. West testified that Alvarez initially denied any knowledge of the robbery murder, but eventually admitted that between 6:00 and 7:00 p.m. on the night of the crime he had received a phone call from defendant Gonzales, who asked to be picked up at Jennifer‟s house. Alvarez met defendants and “Clumsy” at Jennifer‟s house and followed them in his car while they drove a blue van to a location on Turnbull Canyon Road in Hacienda Heights. Alvarez was told to wait while the three men left in the blue van. They returned a short time later, parked the van, and got into Alvarez‟s car. Alvarez drove them back to Jennifer‟s house where they partied the rest of the evening. At trial, Alvarez denied he told Deputy West he had dropped the three men off before the robbery and waited for them. Alvarez insisted he had only picked the men up after the robbery. On March 15, 1997, Alvarez visited defendant Gonzales, who was incarcerated in the county jail. Their conversation was secretly taped by the authorities and later played for the jury. In the tape, Alvarez alluded to the fact that at defendants‟ preliminary hearing, a witness named Kimberly had mentioned Alvarez by his nickname, “Richie Rich,” as the person who had driven defendants

declared her a hostile witness and found that she had feigned her failure of recollection. Consequently, her testimony about the shootings was presented through her preliminary hearing testimony and her pretrial interviews with investigators. On the night of the murders, Judith arrived at the gas station with her brother Augustin in his car, a four-door, silver Honda Accord. “Clumsy” was driving the car; Judith was in the middle of the front seat, and her brother was in the front passenger seat. Gonzales and Soliz were in the backseat. Clumsy was driving because Augustin was too drunk to drive. Judith saw three young African- American men standing in the driveway in front of the gas station. Defendants indicated they knew those men and asked Clumsy to go back so they could talk to them. Clumsy drove the car into the gas station near the telephone where two of the men were now standing and stopped in front of the telephone. Gonzales and Soliz got out through the rear doors of the car and went to talk to the two men. Gonzales stayed closer to the car than Soliz. Judith heard Gonzales and Soliz and the two African-American men all talking loudly. Suddenly, loud gunshots interrupted the conversation. It sounded to her like just one gun. She could see the hand of the shooter and the sparks coming from the gun, but she could not see his face. However, she knew Soliz was the shooter because the shooter used the left side (driver‟s side) rear door to reenter the car, and that was the side Soliz used. Gonzales used the right side (passenger side) rear door. Defendants then told Clumsy to “take off.” Deputy Sheriff David Castillo investigated the Skyles and Price murders and interviewed Judith in November of 1996. Her account of the shootings in this interview was substantially the same as her preliminary hearing testimony, with the following additional details: Gonzales had a gun in his possession at the time of the shooting, although he did not fire it. Defendants were arguing near the pay

as an aider and abettor in the Skyles and Price murders was weak. But the strength of the evidence supporting each set of murders was similar. In the Hillgrove Market murder, Dorine Ramos testified she saw both defendants preparing for the robbery, and she identified the getaway van they used. Betty Eaton testified two men robbed the market about 7:30 p.m. and one of them killed her husband. Richard Alvarez testified he received a call from Gonzales on the evening of the murder and picked up both defendants near the market between 7:00 and 8:00 p.m. In his taped conversation with Salvador Berber, Gonzales admitted that defendants committed the robbery murder and that he, Gonzales, had been the shooter. Physical evidence linked the van to the Hillgrove Market robbery murder, and Gonzales‟s fingerprint was found in the van. In the Skyles and Price murders, Judith Mejorado, a passenger in the car in which defendants rode to the gas station, testified that both defendants got out of the car and confronted the victims, and that Soliz was the shooter. Carol Mateo, who was driving by the gas station at the time of the shooting, and Alejandro Garcia, the clerk on duty at the gas station, testified they saw two men standing outside of the car and identified Soliz as the shooter. In his taped conversation with Berber, Gonzales admitted he and Soliz were at the gas station, although, contrary to the prosecutor‟s theory of the case, Gonzales claimed sole responsibility for the killings and denied Soliz was involved. As mentioned, a live round found in the getaway van used in the Hillgrove Market robbery murder showed the same magazine markings as the expended shells found at the scene of the Skyles and Price murders, thus providing a physical evidentiary link between the two sets of murders. As to the fourth and final factor, as defendants acknowledge, both sets of murders were capital counts (the Hillgrove Market murder as involving a robbery murder special circumstance, and the Skyles and Price murders as involving a

Gonzales renews on appeal the arguments he made in his suppression motion, which are based on undisputed facts. First, he contends Berber was acting as an agent for law enforcement and therefore was required to inform Gonzales of his Miranda rights (see Miranda v. Arizona, supra, 384 U.S. at pp. 471-474) before eliciting incriminating statements from him. Assuming for the sake of argument that Berber was acting as an agent for law enforcement, we note the United States Supreme Court has rejected “ „the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent.‟ ” (People v. Webb (1993) 6 Cal.4th 494, 526, quoting Illinois v. Perkins (1990) 496 U.S. 292, 297.) As the high court has explained, “Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect‟s misplaced trust in one he supposes to be a fellow prisoner.” (Illinois v. Perkins, at p. 297.) Although Gonzales misplaced his trust in confiding in Berber, his tape-recorded statements were voluntary and free of compulsion. Consequently no Miranda warnings were required. (Webb, at p. 526.) Second, Gonzales argues he was questioned in counsel‟s absence in violation of Massiah v. United States, supra, 377 U.S. 201. But at the time Gonzales spoke with Berber, he had not yet been charged with either the Eaton murder or the Skyles and Price murders, and thus no counsel had been appointed. Even assuming Gonzales was still represented by counsel in the methamphetamine case, in which he had already pleaded guilty and begun to serve a sentence, his Massiah argument still fails: The Sixth Amendment right to counsel is offense- specific. (People v. Carter (2003) 30 Cal.4th 1166, 1210.) Alternatively, Gonzales argues that rule 2-100 of the California Rules of Professional Conduct prohibits a lawyer from communicating with another party in a case without the consent of the other party‟s lawyer, and the prosecutor

had been included in the original information but was subsequently stricken in pretrial proceedings. Soliz, joined by Gonzales, contends (1) that the trial court erred in denying a defense motion to dismiss the entire panel predicated on the remark, and (2) that evidence of gang motivation for the murders of Skyles and Price later presented at trial aggravated the prejudicial effect of the remark, resulting in a violation of defendants‟ constitutional rights. As explained below, we conclude the trial court‟s remarks did not constitute reversible error. Soliz contends the trial court‟s erroneous reference to a racial motivation for the killings infected the trial with unfairness, making the resulting conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) We do not see the trial court‟s remarks as rising to this level. Soliz does not deny that about a week later, when the first panel of prospective jurors returned to the courtroom after submitting their questionnaires, the trial court correctly summarized the charges and allegations without mentioning the former allegations of racial motivation. Soliz contends, however, that the prejudicial effect of the trial court‟s remark was aggravated by the prosecutor‟s later presentation at trial of evidence that the killing of Skyles and Price was gang related. As recounted, the prosecution‟s expert witness on gangs, Detective Lusk, testified that the murders of Skyles and Price were probably gang retaliation killings motivated by the earlier killing of Billy Gallegos, a member of the Hispanic Puente gang, by members of the Neighborhood Crips, an African-American gang. Lusk testified that victims of gang retaliation shootings are targeted for being within the general area of the rival gang, for being a certain race, and for wearing a certain style of clothing. Defendant cites Dawson v. Delaware (1992) 503 U.S. 159, 165, for the proposition that to allow evidence of racism that has no relevance to the proceedings in a capital case is federal constitutional error. In Dawson, the high

applicable theory of first degree murder. Gonzales separately contends that, assuming the evidence supported Soliz‟s conviction for first degree murder, the evidence was insufficient to support Gonzales‟s conviction as an aider and abettor. As we conclude below, the evidence presented at trial supported both convictions. As noted, Judith Mejorado told police she was in the car with defendants when they drove by the gas station where Skyles and Price were standing. Defendants said they knew Skyles and Price and asked the driver to go back to the station so they could talk to them. Defendants got out of the car and approached them, with Gonzales staying closer to the car than Soliz. Gonzales had a gun in his possession, although he did not fire it. Judith heard both defendants arguing with Skyles and Price. She heard Skyles or Price say, “No. I didn‟t mean to do you that way. I‟m sorry. I didn‟t mean to do you that way.” Soliz responded with some statements and then shot Skyles and Price. When defendants reentered the car after the shooting, they told her: “You didn‟t see nothing. You don‟t know nothing.” Detective Lusk testified defendants were members of the Puente gang. In Lusk‟s opinion, the murders of Skyles and Price were probably a gang retaliation killing motivated by the earlier killing by Crips gang members of Billy Gallegos, a Puente gang member. Skyles and Price were wearing what looked like gang clothing and, in Lusk‟s opinion, could have been targeted even if they did not in fact belong to a gang. Lusk testified that when a gang member stands “backup” for another gang member, this serves several purposes for the gang, e.g., to provide additional force in case the victim resists, or to encourage the first gang member to proceed with the shooting. The law we apply in assessing a claim of sufficiency of the evidence is well established: “ „ “ „[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial

party when they saw the victims and decided to confront them. Premeditation and deliberation, however, can occur in a brief interval: “ „ “[t]he test is not time, but reflection,” ‟ ” as “ „ “ „[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.‟ ” ‟ ” (People v. Osband (1996) 13 Cal.4th 622, 697.) Here, the evidence of motive was that defendants targeted Skyles and Price for a gang retaliation murder because of the prior murder of Puente gang member Billy Gallegos by Crips gang members. This motive evidence supported the inference that defendants, who were armed at the time, had the prospect of retaliation in mind and quickly decided to commit the murders once they identified potential targets. A reasonable inference, therefore, is that defendants formed the intent to commit premeditated and deliberate murder as early as when they asked the driver to turn the car around and return to the gas station to confront Skyles and Price, who fit the profile of retaliatory targets, whether or not they actually belonged to the Crips gang. Defendants contend the nature of the killings — multiple gunshots at close range with a semiautomatic weapon — and the fact defendants were arguing with the victims just before the shootings, suggest the killings were the result of an unconsidered or rash impulse, which might indicate a mental state less than that required for premeditated and deliberate murder. No evidence was presented, however, of provocation that could have reduced the murders to voluntary manslaughter. The manner of killing — a close-range shooting without any provocation or evidence of a struggle — additionally supports an inference of premeditation and deliberation. (People v. Marks (2003) 31 Cal.4th 197, 230.) Finally, assuming a reasonable jury could have found the evidence did not support premeditation and deliberation and returned a verdict of second degree murder, defendants‟ convictions must stand because, as we have stated, “[i]f the circumstances reasonably justify the jury‟s findings, the reviewing court may not

was carrying a firearm further strengthens the inference. A jury could reasonably conclude Gonzales knew of and shared Soliz‟s intention to murder Skyles and Price or, at the least, knew Soliz intended to assault them with a deadly weapon and shared that intention, which in turn establishes Gonzales‟s liability as an aider and abettor to the murder under the natural and probable consequences doctrine. That Gonzales and Soliz both argued with Skyles and Price further demonstrated Gonzales‟s shared intention and active participation in the confrontation. Because Gonzales was armed, his act of standing backup aided and encouraged Soliz in shooting Skyles and Price by providing further deadly force in case the victims resisted. Furthermore, based on Lusk‟s testimony about how gang members encourage each other to commit acts of gang violence by standing backup, a jury reasonably could have inferred that Gonzales‟s armed presence encouraged Soliz to go through with an act of gang retaliation, which was the motive supported by the evidence of the prior murder of Puente gang member Billy Gallegos. Finally, after the shootings, both defendants warned Judith Mejorado to forget what she had just witnessed, which displayed a consciousness of shared guilt. Gonzales cites a Ninth Circuit Court of Appeals decision, Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, in support of his contention that the evidence presented was insufficient to support his conviction for first degree murder as an aider and abettor. We initially note that while we may find lower federal court decisions on points of state law persuasive, they do not control. (People v. Avena (1996) 13 Cal.4th 394, 431.) In any event, the facts of Juan H. are distinguishable. In Juan H., the defendant, a juvenile, was at home with his family when someone fired two shots into the trailer in which he lived. (Juan H., at p. 1266.) An hour and a half later, the defendant and his brother confronted two men with whom they had a history of conflict at the trailer park, and who were associated with a rival gang. (Id. at pp. 1266-1267.) The defendant‟s brother

which is a natural and probable consequence of the crime originally aided and abetted. [¶] Therefore, you may find the defendant guilty of the crime of murder as charged in Counts 4 and 5, even if he did not intend to commit murder, if you are satisfied beyond a reasonable doubt that: [¶] 1. The crime of assault was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of murder; and [¶] 4. The crime of murder was a natural and probable consequence of the commission of the crime of assault. [¶] The crime of assault is defined elsewhere in these instructions.” The court defined assault (CALJIC No. 9.00) and instructed that assault requires a present ability to commit injury (CALJIC No. 9.01). Relying on People v. Prettyman, supra, 14 Cal.4th 248, Gonzales contends that, as matter of law, murder is not a natural and probable consequence of simple assault unless the assault is committed with a deadly weapon or by means of force likely to produce great bodily injury. In Prettyman, we summarized the natural and probable consequences doctrine as follows: “Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a „natural and probable consequence‟ of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the „natural and probable consequences‟ doctrine, the jury must find that, with knowledge of the perpetrator‟s unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant‟s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a „natural and probable

consequence‟ of the target crime that the defendant assisted or encouraged.” (Id. at p. 254.) Prettyman addressed a conflict in the case law concerning whether a trial court was required to identify and define the target offense for the jury or need only describe the target offense generally as some criminal or nefarious conduct intended by the defendant. (People v. Prettyman, supra, 14 Cal.4th at p. 266.) We agreed with the line of cases adopting the first of these two alternatives and held that, “when the prosecutor relies on the „natural and probable consequences‟ doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged.” (Id. at p. 254.) We reasoned: “An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal.” (Ibid.) While Prettyman explains when a trial court must identify and describe the target crimes for the natural and probable consequences doctrine, the decision does not directly address what crimes can or cannot provide liability for murder under the doctrine. In that case, the prosecutor‟s theory was that one of the defendants, Bray, had encouraged the other defendant, Prettyman, to kill the victim with a metal pipe. (People v. Prettyman, supra, 14 Cal.4th at p. 255.) The trial court instructed the jury with the natural and probable consequences doctrine but failed to specify the target crime. We observed that “instructions identifying and describing the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245) as the appropriate target crime would have assisted the jury in determining whether Bray was guilty of [the victim]‟s murder under the „natural and probable consequences‟ doctrine.” (Id. at p. 267.) In

because this sounded like an argument, the evidence was sufficient to submit to the jury the question of whether the killing of Skyles and Price was the result of a sudden quarrel and was therefore manslaughter, not murder. Where there is substantial evidence of a lesser included offense, such as manslaughter, the trial court has a duty to instruct on it. (People v. Breverman (1998) 19 Cal.4th 142, 162.) We see, however, no substantial evidence of heat of passion or sudden quarrel. In her testimony at the preliminary hearing, which was read at trial, Judith testified that the interchange between defendants and Skyles and Price “was just like loud talking. It wasn‟t like — it didn‟t sound like an argument.” Furthermore, even assuming that what she described could be seen as an argument, voluntary manslaughter based upon sudden quarrel or heat of passion requires a showing of adequate provocation, which has both a subjective and an objective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The defendant must actually and subjectively kill under the heat of passion, but the circumstances giving rise to the heat of passion are also viewed objectively to determine whether the “ „circumstances were sufficient to arouse the passion of the ordinarily reasonable man.‟ ” (Id. at pp. 1252-1253.) Defendants contend they were provoked because their fellow gang member, Billy Gallegos, had been killed by Crips gang members two weeks earlier and defendants believed Skyles and Price had been involved in the murder. No evidence, however, established that Skyles and Price had been involved in the Gallegos murder. The mere fact Soliz shot them does not establish they were involved or even that they were gang members. As the prosecution gang expert testified, Skyles and Price could have been targeted for a gang retaliation killing because they fit the profile of a rival gang member, not because they necessarily had any involvement in the Gallegos murder. More importantly, a passion for revenge cannot satisfy the objective

determination and, in that situation, need not instruct the jury on accomplice testimony.” (People v. Horton (1995) 11 Cal.4th 1068, 1114.) Here, the trial court made no determination that Alvarez was not an accomplice as a matter of law, nor did the court give the accomplice instructions. Defendants contend the evidence was sufficient to submit the accomplice issue to the jury, and consequently the jury should have been instructed, inter alia, with CALJIC Nos. 3.10 (defining accomplice), 3.12 (sufficiency of the evidence of corroboration), and 3.18 (accomplice‟s testimony to be viewed with distrust). As mentioned above, Alvarez testified that he picked up defendants from the vicinity of the Hillgrove Market robbery murder. Although evidence of his conduct after the commission of the crime might have implicated him as an accessory, his status as such would not subject him to accomplice liability. (People v. Horton, supra, 11 Cal.4th at p. 1116.) Additionally, an investigating officer testified that Alvarez told him he had followed defendants to the vicinity of the robbery murder, waited for them, and driven them back after they abandoned the van used in the robbery. Even if one assumes that Alvarez‟s statements to the investigating officer reflected his actual role, no direct evidence was presented that Alvarez had knowledge of the robbery and intended to facilitate it. Whether the evidence met the preponderance of the evidence standard requiring the trial court to submit the accomplice issue to the jury is therefore a close question. (See People v. Hernandez (2003) 30 Cal.4th 835, 874.) We conclude it did not. Even assuming, however, the trial court erred by failing to give accomplice instructions for Alvarez, we find the error to be harmless. “A trial court‟s failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record.” (People v. Lewis (2001) 26 Cal.4th 334, 370.) “Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged

offense.” (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) The evidence is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792, 834.) Other evidence in the case sufficiently connected defendants with the Hillgrove Market robbery murder, such as the testimony of Dorine Ramos describing defendants‟ activities in preparation for the robbery, the discovery of Gonzales‟s fingerprints on the market‟s paperwork found in the blue van used for the robbery and, most importantly, Gonzales‟s tape-recorded statements to Salvador Berber, in which he admitted that defendants committed the Hillgrove Market robbery murder. Gonzales acknowledges Alvarez‟s testimony was sufficiently corroborated under the standard stated in People v. Lewis, supra, 26 Cal.4th 334, and prior cases, but he argues we should reconsider the standard. He contends the failure to instruct on the corroboration of accomplice testimony should require the full harmless error analysis for state law error according to People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal if, after an examination of the entire case, “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” In a related argument, Gonzales contends that, even assuming the Lewis standard for the corroboration of accomplice evidence is correct and the corroboration in this case rendered harmless the omission of CALJIC No. 3.12 (sufficiency of the evidence of corroboration), it did not render harmless the omission of CALJIC No. 3.18 (accomplice‟s testimony to be viewed with distrust), which Gonzales contends must be separately examined for harmless error under Watson. As we explain below, we reject Gonzales‟s contentions. Section 1111 codifies common law concerns about the reliability of accomplice testimony. (People v. Tewksbury (1976) 15 Cal.3d 953, 967.) “[S]uch

testimony has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated.” (Ibid.) Our analysis of harmless error in the omission of accomplice instructions reflects the idea that sufficient corroboration allays the concerns regarding unreliability embodied in section 1111. Thus, even in cases where the full complement of accomplice instructions (including CALJIC No. 3.18) was erroneously omitted, we have found that sufficient corroborating evidence of the accomplice testimony rendered the omission harmless. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 143; People v. Zapien (1993) 4 Cal.4th 929, 982-983.) As discussed, the evidence of corroboration is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (People v. Fauber, supra, 2 Cal.4th at p. 834.) Furthermore, we have held that “even if there were insufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached.” (People v. Miranda (1987) 44 Cal.3d 57, 101.) In other words, in the absence of sufficient corroboration we will submit the omission of accomplice instructions to the harmless error analysis for state law error under People v. Watson, supra, 46 Cal.2d at page 836. To be sure, we have occasionally engaged in both an analysis of the sufficiency of corroboration and an additional harmless error analysis under People v. Watson, supra, 46 Cal.2d 818, when the full complement of accomplice instructions has been omitted. (See, e.g., People v. Box (2000) 23 Cal.4th 1153, 1209; People v. Lewis, supra, 26 Cal.4th at p. 371; People v. Hinton (2006) 37 Cal.4th 839, 881.) One such case is Lewis, to which Gonzales points as supporting his contention that a Watson analysis is required whenever CALJIC No. 3.18 is omitted. We reject the contention. We view the Watson analysis in Lewis as an alternative harmless error analysis, based on an assumed alternative argument that

people that owned that market. You‟re talking about two people who killed a 67- year-old man because he had the audacity to stand up to the people who came into his store. . . . [¶] So you‟re talking about two people who are not only members of the same gang, but they‟re people who at the time of the Skyles/Price murder had already committed another murder together: the Hillgrove Market robbery murder. They knew what each was about. They knew what each was going to do.” Gonzales contends the prosecutor‟s argument was an improper attempt to convict Gonzales of the Skyles and Price murders solely on the basis he had committed another crime (the Eaton murder) and was a person of generally bad character. As an initial matter, Gonzales‟s claim is forfeited for failure to object below. Gonzales acknowledges this failure, but argues the claim is nonetheless preserved because similar issues were raised by his pretrial motion to sever his trial from that of his codefendant, and any objections would have been futile given the trial court‟s denial of the motion. We reject the argument. The trial court‟s denial of the severance motion did not foreclose the asserted misconduct issue that Gonzales now raises. Trial counsel therefore was still required to make a specific objection to the prosecutor‟s arguments and seek an admonition from the court. Turning to the merits of the claim, we reject Gonzales‟s characterization of the prosecutor‟s argument. Gonzales‟s contention presupposes the very claim we rejected in concluding that sufficient evidence supported his conviction for the Skyles and Price murders as an aider and abettor. The prosecutor did not assert Gonzales was guilty of the Skyles and Price murders solely on the basis that he committed the Eaton murder. As we have explained, and as the prosecutor explained in the remainder of his closing argument, the evidence at trial established that Gonzales knew of and shared Soliz‟s intent to murder Skyles and Price. Defendants were not only members of the same criminal gang, but also had

In pretrial proceedings for the penalty retrial, the trial court addressed the question whether, because of the drug-smuggling incident, Tyre had a conflict of interest that would prevent him from representing Gonzales at the penalty retrial. Tyre was concerned that the prosecutor might call him as a witness or, at the least, mention his name in connection with the drug-smuggling incident, which would impair his effectiveness with the jury. The prosecutor stated that because Tyre was not responsible for the drug-smuggling incident, he saw no need to mention Tyre‟s name to the retrial jury in discussing it. The prosecutor noted, however, that David and Kimberly Gonzales, the family members he suspected of supplying the drug-laden clothing, had testified at the first penalty trial, and he wanted to retain his right to present the drug-smuggling incident as impeachment evidence against them if they testified at the penalty retrial. Because Tyre had no involvement in the drug-smuggling incident that would require him to be called as a witness, the trial court saw no conflict in allowing him to represent Gonzales at the penalty retrial. Tyre went on to represent Gonzales at the penalty retrial, at which neither David nor Kimberly Gonzales testified. Gonzales contends the trial court erred in concluding that because Tyre would not be called as a witness at the penalty retrial, he could represent Gonzales free from any conflict of interest. Gonzales contends a conflict of interest still existed because the investigation of the drug-smuggling incident was ongoing at the time of the penalty retrial and, therefore, a “remote” possibility still existed that Tyre could have been prosecuted for the incident, which could have caused him to represent Gonzales less than vigorously. “ „The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.‟ ” (People v. Roldan (2005) 35 Cal.4th 646, 673, quoting People v. Cox

(2003) 30 Cal.4th 916, 948.) While the classic example of a conflict in criminal litigation is a lawyer‟s dual representation of codefendants, the constitutional principle is not narrowly confined to instances of this type. (People v. Hardy (1992) 2 Cal.4th 86, 135.) A conflict may also arise when an attorney‟s loyalty to, or efforts on behalf of, a client are threatened by the attorney‟s own interests. (Roldan, at p. 673.) Under the federal Constitution, prejudice is presumed when counsel suffers from an actual conflict of interest. (Cuyler v. Sullivan (1980) 446 U.S. 335.) This presumption arises, however, “only if the defendant demonstrates that counsel „actively represented conflicting interests‟ and that „an actual conflict of interest adversely affected his lawyer‟s performance.‟ ” (Strickland v. Washington (1984) 466 U.S. 668, 692, quoting Cuyler, at p. 348.) An actual conflict of interest means “a conflict that affected counsel‟s performance — as opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor (2002) 535 U.S. 162, 171, italics omitted.) Under the federal precedents, which we have also applied to claims of conflict of interest under the California Constitution, a defendant is required to show that counsel performed deficiently and a reasonable probability exists that, but for counsel‟s deficiencies, the result of the proceeding would have been different. (People v. Doolin (2009) 45 Cal.4th 390, 421, & fn. 22 [disapproving former state law “informed speculation” standard of prejudice].) Gonzales‟s argument that Tyre suffered from a conflict of interest seems strained in light of the prosecution‟s assurances to the judge that Tyre bore no responsibility in the drug smuggling incident. Nevertheless, assuming for purposes of argument that Tyre did suffer a conflict, determining whether his performance was adversely affected requires us to ask whether he “pulled his punches,” i.e., whether Tyre failed to represent defendant as vigorously as he might have, had there been no conflict. (People v. Roldan, supra, 35 Cal.4th at

p. 674.) In undertaking such an inquiry, we are bound by the record. But where a conflict of interest causes an attorney not to do something, the record might not reflect such an omission. (Ibid.) We must therefore examine the record to determine (1) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (2) whether there may have been a tactical reason (other than the asserted conflict of interest) for counsel‟s omission. (Ibid.) Gonzales contends Tyre‟s conflict of interest had an adverse effect on Tyre‟s performance in three areas: (1) in advising Gonzales about testifying at the penalty retrial; (2) in failing to call David and Kimberly Gonzales as witnesses; and (3) in failing to make objections during the prosecutor‟s cross-examination of Gonzales. We conclude Gonzales fails to show any adverse effect on Tyre‟s performance in the three areas described. As to the first, Gonzales claims that any reasonable attorney would have advised him not to testify, because, as he puts it, “little could be gained from appellant‟s testimony that he personally shot Skyles and Price.” It appears, however, that Tyre did advise Gonzales not to testify. As Gonzales acknowledges, he took the stand in the penalty retrial over Tyre‟s objection. Gonzales further contends that if the trial court had relieved Tyre and appointed a conflict-free attorney, he might have accepted that attorney‟s reasonable advice not to testify, or that an attorney without a conflict of interest would have prepared his client to testify rather than objecting to his testimony. Both contentions reflect pure speculation, unsupported by anything in the record. As to the second area of asserted deficient performance resulting from the conflict, Gonzales points to Tyre‟s decision not to call David and Kimberly Gonzales at the penalty retrial. Under the circumstances, however, we conclude no competent counsel would have called them to testify. Whatever mitigating

jurors. The remaining prospective jurors were then excused. Later, after the newly impaneled jury had left the courtroom, counsel for Gonzales objected that, because voir dire had focused only on death qualification issues, he had not been allowed to question prospective jurors about “racial issues.” Counsel stated that some jurors might be affected by the circumstance that two of the murder victims were African-American. The trial court replied that if counsel had asked to inquire on that subject, the court would have allowed it. The court stated: “I will remind you that in the voir dire that was conducted, mostly by me, that I went outside of the death penalty issues where I saw things that appeared to be of interest in the questionnaire and then I invited the attorneys to ask further questions, if they felt that there was anything else that needed to be explored as to a particular juror. And you did on a couple of occasions, and [on] other occasions you said you had no additional questions. And I gave you an open questioning period with almost all of the jurors.” The trial court noted that defense counsel had exercised a great number of challenges and picked jurors that appeared to satisfy them. The court concluded that by failing to raise the subject during voir dire, counsel had effectively waived the issue. The court then asked counsel for Gonzales whether he was asking for a mistrial. Counsel for Gonzales responded affirmatively and stated he did not think there was any other proper remedy. Counsel for Soliz joined in the motion, which the court denied. “[A] capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” (Turner v. Murray (1986) 476 U.S. 28, 36-37.) As the high court further explained in Turner, however, defense counsel must request voir dire on the subject of racial prejudice; the trial court has no sua sponte duty to broach the subject. (Id. at p. 37, fn. 10.) Gonzales‟s trial counsel did broach the subject, but

only after the time for voir dire had ended and the jury had been sworn. The only remedy that Gonzales‟s trial counsel suggested was a motion for mistrial, which the trial court denied. Defendants contend for the first time on appeal that the trial court should have reopened voir dire to question the jurors about racial bias. We turn first to the question of forfeiture. Under Turner v. Murray, supra, 476 U.S. 28, if defense counsel had asked to question prospective jurors on racial bias during voir dire, the trial court would have erred had it refused that request. Here, however, voir dire had been completed, and both the jury and the alternates had been sworn. As Gonzales acknowledges, we have stated that “[o]bjections to the jury selection process must be made when the selection occurs.” (People v. Johnson (1993) 6 Cal.4th 1, 23.) Both at trial and on appeal, defense counsel have contended the trial court precluded questioning on racial bias because it told counsel they could not engage in “general voir dire.” The record is to the contrary. The trial court directed trial counsel not to ask general questions about the jurors‟ backgrounds that had already been covered by the written questionnaires but gave counsel the opportunity to raise specific concerns, which counsel did, for example, in requesting that the trial court examine the prospective jurors on their attitudes toward lingering doubt. Because defense counsel had the opportunity to raise the issue of questioning about racial bias but did not, defendants forfeited their rights under Turner to have the prospective jurors questioned on this subject. Defendants also contend that, under Turner the trial court was compelled to reopen voir dire on the subject of racial bias even after jury selection was completed. This claim was never raised below; the only remedy sought by defense counsel was a mistrial. Defendants therefore have also forfeited this aspect of their claim. Furthermore, were we to reach the merits of this argument, we would reject it. Turner speaks only in terms of the right to question on racial

and his oath.‟ ” (Uttecht v. Brown (2007) 551 U.S. 1, 7 [127 S.Ct. 2218, 2223], citing Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) Applying Witt, we have stated: “ „ “ „A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.‟ [Citation.]” [Citation.] In addition, “ „[o]n appeal, we will uphold the trial court‟s ruling if it is fairly supported by the record, accepting as binding the trial court‟s determination as to the prospective juror‟s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.‟ [Citations.]” ‟ ” (People v. Blair (2005) 36 Cal.4th 686, 743; see People v. Jenkins (2000) 22 Cal.4th 900, 987.) Prospective Juror No. 8763, in her answers to several questions on the jury questionnaire, indicated her view that only God should judge whether a person should be put to death for crimes. During voir dire, the trial court asked her whether, as a consequence of this belief, she would be unable to impose the death penalty. She affirmed her view was that only God could decide. However, when asked whether she as a juror would vote only for life in prison without parole regardless of the evidence and no matter how horrible the crime, she acknowledged that “as a last resort” and if all the evidence were against a defendant, she would vote for death. She also expressed her concern that if she voted for death it would trouble her conscience and haunt her dreams. Counsel for Soliz asked her whether she would be able to consider the prosecutor‟s evidence in aggravation, to which she answered: “I don‟t know, to be honest. It‟s really hard and difficult for me to do that. And I have pondered this since I‟ve been asked that question. . . . And I still truly believe that only God should allow a person — or put a person to death. I don‟t feel in true judgment that it‟s up to me to do that.” The trial court granted the prosecutor‟s challenge for cause.

decision they were to make was what punishment should be imposed on Gonzales for the murder of Eaton. Gonzales contends the trial court‟s refusal to inform the penalty retrial jury of his LWOP verdict for the Skyles/Price murders violated his federal and state constitutional rights. Gonzales points to the broad range of evidence that a defendant may introduce as a mitigating factor during the penalty phase of a capital trial: “ „[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant‟s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.‟ ” (Eddings v. Oklahoma (1982) 455 U.S. 104, 110, quoting Lockett v. Ohio (1978) 438 U.S. 586, 604 (plur. opn.).) However, as we have noted, “[a]t the same time, . . . the United States Supreme Court has made clear that the trial court retains the authority to exclude, as irrelevant, evidence that has no bearing on the defendant‟s character, prior record or the circumstances of the offense.” (People v. Frye (1998) 18 Cal.4th 894, 1015, citing Lockett, at p. 604, fn. 12.) We have previously rejected claims that “ „the trial court is required to inform the jury of the history of the prior proceedings‟ ” (People v. Wash (1993) 6 Cal.4th 215, 254, quoting People v. Edwards (1991) 54 Cal.3d 787, 845), including sentences received by codefendants and accomplices (People v. Mincey (1992) 2 Cal.4th 408, 479; People v. Bemore (2000) 22 Cal.4th 809, 857-858), whether the previous penalty jury was deadlocked (People v. Hawkins (1995) 10 Cal.4th 920, 967-968), and whether the penalty retrial was the result of an appellate reversal of an earlier death judgment (Wash, at p. 254). Similarly, we reject Gonzales‟s claim that the trial court was required to inform the penalty retrial jury of the first penalty jury‟s LWOP verdict for Gonzales for the murder of Skyles and Price. That verdict was

At this point, the trial court interjected: “The Court will take judicial notice of the fact that you cannot render a semiautomatic fully automatic by any manipulation with a spring behind the trigger. That is a physical impossibility with that weapon. The court knows from its own experience.” The prosecutor then resumed questioning, asking Gonzales whether it was his testimony “that you shot them so many times because basically you couldn‟t stop pulling the trigger. Is that fair to say?” Gonzales replied, “Yeah. I don‟t know how many times. I kept pulling it. But, you know, it‟s what happened. . . . I don‟t know how many bullets came out.” After Gonzales finished his testimony, the parties outside the hearing of the jury addressed the trial court and objected to the court editorializing about the gun. The trial court apologized, stating: “I‟m sorry, but when you have something as basic as that, it‟s as though you would say that you could render it automatically — make it fully automatic by putting a piece of chewing gum in the magazine. . . . It was just utter nonsense, and it‟s so obviously palpably untrue.” After the penalty retrial jury returned its verdicts, trial counsel for both defendants moved for a new trial on various grounds, including the trial judge‟s comments about altering the semiautomatic gun. In responding to Soliz‟s counsel‟s contention that the court‟s comment destroyed Gonzales‟s credibility, the court acknowledged that “it was probably error for the court to have made the comment that it did at the time based on the court‟s personal knowledge, having carried a semiautomatic weapon as an officer in the Marine Corps as a side arm. And, in a sense, I was an uncross-examined expert witness, which I certainly did not intend to be.” The court concluded, however, “that under the totality of the circumstances it was harmless error and it did not affect the judgment of the jury as, in fact, they rejected the whole of Mr. Gonzales‟s testimony as to the killing of Skyles and Price.” In addressing Gonzales‟s counsel‟s similar argument, the trial

The proposition that a semiautomatic weapon cannot be easily rendered fully automatic is not a proper subject for judicial notice because it is neither “so universally known that [it] cannot reasonably be the subject of dispute” (Evid. Code, § 451, subd. (f)) nor “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” (id., § 452, subd. (h)). Because the trial court erred, we analyze the error‟s possible prejudicial effect. “We „evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court‟s remarks deprived the accused of his right to trial by jury.‟ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 531-532.) In the context of Gonzales‟s testimony, the trial court‟s comments were harmless because, as the trial court observed, Gonzales‟s credibility was already seriously impaired. The prosecutor‟s cross-examination had impaired Gonzales‟s credibility in recounting the details of the two sets of shootings: while Gonzales asserted he had been the actual shooter in both instances, he nevertheless sought to minimize his responsibility and gave implausible explanations when confronted with the details. For example, the physical evidence indicated that Lester Eaton had been shot five times. When asked to explain why he had shot him five times, Gonzales claimed that his mind had gone blank during the shooting and he could not remember firing any of the shots, although he remembered everything else about the robbery. Again, when the prosecutor asked him why he had fired multiple shots at Skyles and Price, Gonzales sought to minimize his culpability by claiming to have pulled the trigger only once, giving a vague and unpersuasive account of how he had altered the gun to be fully automatic. Because Gonzales‟s credibility to the jury was already seriously impaired by the time the trial court made its comments on semiautomatic weapons, we conclude that any error of state law was harmless under the “reasonable

10. Refusal to Instruct on Lingering Doubt At the penalty retrial, the trial court refused defendants‟ proposed lingering doubt instructions, stating that such an instruction is only appropriate when the same jury that decides guilt also decides penalty. Defendants contend the trial court thereby erred. To the contrary, as we explain below, the trial court was not required to instruct on lingering doubt and did not err in refusing to do so. At the penalty retrial, both the prosecution and the defense extensively discussed the circumstances of the capital crimes. The prosecutor called the same witnesses and presented substantially the same evidence concerning the capital crimes at the penalty retrial as he did at the guilt phase trial. Counsel for defendants presented arguments in mitigation based on defendants‟ version of the circumstances of the capital crimes. Gonzales‟s counsel argued that the murder of Lester Eaton was an accidental killing rather than a premeditated murder. As to the Skyles and Price murders, Gonzales‟s counsel argued that Gonzales never got out of the car when Soliz shot Skyles and Price, and if he did get out of the car, he did nothing to aid Soliz in the shooting. Counsel for Soliz argued that Gonzales, not Soliz, shot Skyles and Price and that this was proven by Gonzales‟s admissions to Berber and by Gonzales‟s testimony on the stand. As defendants acknowledge, we have frequently and consistently rejected claims that the trial court is required to instruct on lingering doubt. (People v. Lewis (2009) 46 Cal.4th 1255, 1314.) Defendants contend, however, that a lingering doubt instruction is crucial in a penalty retrial because a jury that has not decided guilt decides penalty. Defendants argue that the lack of a lingering doubt instruction prevented the jury from adequately considering defense arguments in mitigation based on the circumstances of the capital crimes because the penalty retrial jury was told it was not allowed to redetermine the guilt phase verdicts.

We considered a similar claim in People v. DeSantis (1992) 2 Cal.4th 1198, 1239. “Inevitably,” we explained, “there will be a tension between the legislatively stated preference not to retry the question of guilt at the second penalty phase trial (§ 190.4, subd. (b)) and the defendant‟s right to ensure that the jury consider evidence that might raise a doubt, albeit amorphous or slight, that his role was less heinous than the prior jury‟s findings established.” (DeSantis, at p. 1239.) We found it unnecessary to resolve whether this tension could ever require a lingering doubt instruction because, given the record presented, the defendant “was able virtually to retry the guilt phase case under the guise of introducing evidence of the circumstances of the crime to the penalty jury.” (Id. at pp. 1239-1240.) “[T]he jury was steeped in the nuances of the case, much as if the same jury had decided guilt and penalty.” (Id. at p. 1240.) Our reasoning in DeSantis applies equally to this case because the jury was similarly “steeped” in the facts of the capital crimes. 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 (2008) 43 Cal.4th 327, 370 [CALJIC No. 8.85 sufficiently covers concept of lingering doubt].) People v. Gay (2008) 42 Cal.4th 1195, cited by defendants, is inapposite. 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. (Id. at p. 1224.) We reversed the judgment because “[t]he combination of the evidentiary and instructional errors present[ed] an intolerable

without CALJIC No. 2.80, the jury may have felt bound by Lusk‟s opinion, and might have uncritically accepted that Soliz was responsible for the shootings and that the shootings were a premeditated retaliation rather than a heat of passion response. While it is true that Lusk testified as an expert witness, his testimony was not the type of expert testimony — scientific evidence, for example — in which the basis for the expert‟s conclusions would have been unfamiliar to the jury. Lusk clearly presented the basis for his opinions, namely, that he was a sheriff‟s deputy who had been part of a gang task force and had personally investigated Puente gang crimes. Lusk‟s opinion that the killing of Skyles and Price could have been gang-motivated was based on the undisputed fact that Puente gang member Billy Gallegos had been killed by Crips gang members two weeks before the Skyles and Price shooting. Gonzales‟s own testimony was consistent with Lusk‟s opinion: Gonzales testified he thought Skyles and Price were gang members and initially approached them to ask whether they knew anything about the Gallegos murder. Lusk‟s opinion that gang members sometimes exaggerate their roles in crimes was similarly based on his experiences with gang members, and he was cross-examined by defense counsel on that point. In summary, the basis for all of Lusk‟s opinions fell within the jury‟s understanding and ability to evaluate. Even without being instructed with CALJIC No. 2.80, therefore, the jury could adequately assess his testimony. Finally, Soliz asserts prejudice from the omission of CALJIC No. 2.20, which instructs on the believability of witnesses, stating in relevant part that “[e]very person who testifies under oath [or affirmation] is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.” As previously discussed, the trial court took judicial notice of the physical impossibility of Gonzales‟s claim that he had converted a semiautomatic gun into a fully automatic one by altering the trigger spring. Soliz

In his taped conversation with Salvador Berber played for the jury at the guilt trial, Gonzales stated he shot Skyles and Price and that Soliz never got out of the car during the shooting. In the tape, Gonzales briefly described how he ran up to Skyles and Price and shot them: “They were like, „No, no, no.‟ I let them motherfuckers have it.” When he testified at the penalty retrial, Gonzales gave a more detailed account of the events: He testified he had not intended to kill Skyles and Price and had armed himself only for protection. The conversation with them turned heated when Gonzales responded to their question about where he was from and they replied, “Fuck Puente.” When Gonzales saw one of them make a move he interpreted as reaching for a gun, he shot them in reaction. In his motion for a new trial, Soliz argued that Gonzales‟s testimony at the penalty retrial was newly discovered evidence that would have rendered a different result probable on retrial because it corroborated Gonzales‟s taped conversation with Berber in which Gonzales stated he acted alone in shooting Skyles and Price. Soliz argued that the guilt phase jury never had a chance to hear Gonzales testify from the stand and corroborate his taped conversation and that, in a new trial, his live testimony could very well result in a different verdict for Soliz. On appeal, however, Soliz contends the trial court erred in denying the new trial motion because, as he characterizes it, Gonzales‟s testimony at the penalty retrial about the Skyles and Price shooting differed “fundamentally” from his statements about it in his taped conversation with Berber heard by the jury at the guilt phase. Whereas the taped conversation tended to support the prosecutor‟s theory that the shootings of Skyles and Price were unprovoked, Gonzales‟s penalty retrial testimony indicated that the shootings were provoked by an argument and by Gonzales‟s belief that Skyles and Price were reaching for weapons. This testimony, Soliz concludes, would have supported guilt phase instructions on voluntary manslaughter based on heat of passion, sudden quarrel, or imperfect

People v. Gonzales and Soliz

IN THE SUPREME COURT OF CALIFORNIA

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III. DISPOSITION The judgments are affirmed.

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