People v. Mora & Rangel , 5 Cal. 5th 442 ( 2018 )

Filed 7/2/18
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S079925
v. )
)
JOSEPH ADAM MORA and RUBEN )
RANGEL, )
) Los Angeles County
Defendants and Appellants. ) Super. Ct. No. TA037999
___________________________________ )
This automatic appeal arises from defendants Joseph Adam Mora and Ruben
Rangel’s 1999 convictions and death sentences for the attempted robberies and murders
of Andres Encinas and Antonio Urrutia. Mora and Rangel contend that several errors
occurred during the guilt and penalty phases of their trial. With one exception, we
disagree. The exception consists of a guilt phase instructional error permitting the jury to
find the multiple murder special circumstance true without finding that Mora or Rangel
intended to kill or actually killed either victim. We nonetheless find the error harmless
because of the overwhelming evidence supporting the jury’s conclusion that each
defendant actually killed the victim he shot, and both defendants were found guilty of
two first-degree murders. Accordingly, we affirm the judgment.
I. BACKGROUND
Defendants Joseph Adam Mora and Ruben Rangel were charged by information
with two counts of murder (Pen. Code,1 § 187), two counts of attempted robbery (§§ 211,
1 All subsequent statutory cites are to the Penal Code unless otherwise noted.
SEE CONCURRING AND DISSENTING OPINION
664), the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and felony
murder while in the commission of robbery (§190.2, subd. (a)(17)), and various
enhancements.
On February 5, 1999, the jury found Rangel and Mora guilty of the first degree
murders and the attempted second degree robberies of both Encinas and Urrutia, and
determined that both Rangel and Mora used a firearm in the commission of each offense.
The jury also found true the multiple murder and felony murder special circumstances
with regard to both Mora and Rangel. On February 18, 1999, the jury imposed the death
penalty on both defendants. The court denied Rangel’s and Mora’s motions for a new
trial and modification of the verdicts of death on May 27, 1999, and on that date
sentenced Rangel and Mora to death.
A. Guilt Phase
1. The Murders
In the early morning hours on August 24, 1997, Andy Encinas, Anthony Urrutia,
and Fidel Gregorio drove to meet Encinas’s girlfriend, Paula Beltran, at a gas station in
Wilmington, where she and two friends were awaiting assistance to repair a flat tire on
Beltran’s car. Encinas and his friends had attended a party in Wilmington that night,
where Beltran had been headed before she got a flat tire. Beltran, along with friends
Mayra Fonseca and Yesenia Jimenez, had spent time at a nightclub earlier that evening.
Beltran paged Encinas to tell him she would be delayed meeting him; Encinas insisted on
driving the one block from the party to meet her where she was awaiting roadside
assistance. Once Beltran’s tire was repaired, the two cars planned to caravan to Beltran’s
home in Norwalk. On the way there, Jimenez asked to be taken to her home on
Castlegate Avenue in Compton, and Beltran obliged. Encinas followed Beltran’s car.
When they arrived at Jimenez’s home, Encinas said he would follow her into Jimenez’s
home because he needed to use a restroom.
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Once their car was parked outside Jimenez’s home, the three women and Encinas
went into Jimenez’s home for a few minutes. Jimenez then walked Beltran, Fonseca, and
Encinas to her front gate. As the group walked toward Beltran’s car, Beltran saw two
men — later identified as Rangel and Mora2 — approach along the sidewalk from down
the street. Rangel asked Encinas, “Do you want to go to sleep?” Encinas did not
respond. Rangel repeated the question, urging Encinas to respond. Encinas and Beltran
each told one another to go to their respective vehicles. Fonseca began screaming at
Beltran to open the car door, and Beltran did. Beltran and Fonseca got into Beltran’s car.
Encinas walked to his car, a Toyota 4Runner, with Mora and Rangel following him.
Encinas got into the driver’s seat of the 4Runner. Urrutia and Gregorio had been
waiting in the passenger seat and passenger-side backseat, respectively. As Encinas
entered the car, he said “let’s get the hell out of here,” but Rangel had followed Encinas
to the driver’s side of the vehicle, and Mora stood at the passenger side.
Parked just behind Encinas, Beltran momentarily looked away from the two men
standing outside Encinas’s car to look, unsuccessfully, for her cell phone and call for
help. Fonseca observed that Rangel stood immediately next to the driver’s side of
Encinas’s car, holding a 12-inch-long metallic or “chromed” gun. Frightened, Fonseca
lowered her seat to a reclined position while she screamed at Beltran to leave. When
Beltran glanced back up she saw Mora and Rangel both pointing firearms into Encinas’s
vehicle. Beltran drove quickly away to find a payphone to call 911. Beltran and Fonseca
remained at the phone until police officers arrived in response to her call.
From his vantage point in the backseat of Encinas’s car, Gregorio could see both
shooters. Rangel stood outside the driver’s side door of Encinas’s car and said to
Encinas, “check yourself, check yourself, give me your wallet.” As Encinas reached for
2 Defendants Mora and Rangel were referred to both by name and nickname
throughout their trial. For ease of reference we refer to them by their given last name
here, but note that Mora’s nickname is Joker, and Rangel’s is Stranger.
3
his wallet, Rangel shot into the driver’s side of the vehicle. Mora, on the other side of the
car, also asked Urrutia for his wallet, and Urrutia told him he had no money but would
give Mora his wallet anyway. Mora then shot into the passenger side of the vehicle,
striking Urrutia’s face and throat, and ultimately penetrating a large blood vessel that
caused Urrutia to bleed to death. Rangel fired two more shots at Encinas; at least one
entered Encinas’s chest, fatally striking his lung and aorta. Mora and Rangel fired a total
of four shots –– all within seconds.
Immediately after the shooting, Mora and Rangel ran away. Gregorio got out of
the car and began knocking on doors in the neighborhood and yelling for help. No one
opened their doors, but he was eventually approached by two men who told Gregorio
they had called the police.
2. Mora and Rangel’s Activities Before the Shootings
On the evening of August 23, 1997, Lourdes Lopez –– Mora’s ex-girlfriend and
the mother of their three-year-old daughter –– paged Mora to come to her house so he
could provide protection for her after she was threatened while attending a child’s
birthday party earlier that day. Lopez lived on Castlegate. Several people were present
at Lopez’s home that evening, including her daughter and the two adults she lived with,
Nancy Gonzalez and Jade Gallegos. Also present at Lopez’s house were Ricardo
Zavalos, Enrique Parra, Russell Tungett, Jose Jimenez, and Ramon Valadez.
Mora and Rangel arrived at Lopez’s home between 11:00 p.m. and 12:00 a.m.
When Lopez arrived shortly after Mora and Rangel, she observed both men in her kitchen
drinking alcohol and using methamphetamine. Lopez joined Mora and Rangel, snorted
two or three lines of methamphetamine, and consumed four or five beers in the space of
about 20 minutes. While sitting with the two men in her kitchen, Lopez noticed a gun in
Rangel’s waistband. Lopez told police that night that she had also seen Mora with a gun,
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although she later testified that she was pressured into making that statement to police
and never saw him with a gun.
Much of Lopez’s testimony at trial differed from what she told police immediately
following the shootings. What Lopez had told police is that in the early morning hours of
August 24, 1997, she heard Rangel call Mora to go outside. Lopez also told police that
Mora and Rangel were the only two people from the gathering at her house who had gone
outside. However, at trial, Lopez claimed uncertainty regarding whether anyone went
outside. She testified that she went into the bathroom right after she heard Rangel call to
Mora to go outside, and testified that she saw both Mora and Rangel standing in her
kitchen right before she entered the bathroom. Lopez testified that she heard gunshots
two or three minutes later, while she was still in the bathroom.
In the statement she gave to police immediately after the shooting, Lopez said that
she saw both Mora and Rangel run into the house through the kitchen door right after the
shots were fired. Lopez testified inconsistently that she was in the bathroom for the
moments before and after the shooting and did not see the two men run back into the
house. Valadez, who had been at the gathering at Lopez’s house, corroborated Lopez’s
statement to the police, testifying that he saw Mora and Rangel run into the house holding
guns right after the shots were fired outside.
Prior to the gunshots she heard, Lopez recalled that Mora was not wearing a shirt,
although he put a shirt on at some point that night after the shooting. Lopez testified that
Rangel had been wearing a dark blue or black collared shirt that night, which he was still
wearing when she exited the bathroom after the shooting. Lopez stated that Rangel took
his shirt off at some point after the shooting.
Within minutes of the shots being fired, some commotion broke out at Lopez’s
house. Valadez testified that Mora and Rangel became excited, bragging that they shot
two men and “blew their fucking heads off.” Valadez observed that Mora was holding a
black machine-gun style weapon; Rangel was holding a silver or chrome weapon with a
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bullet visibly stuck in the chamber. Rangel claimed he would have fired more shots but
his gun had jammed. Rangel was advised by partygoers to remove his shirt to wipe down
his arms to clean off gunshot residue, which he did. Mora –– who had not been wearing
a shirt –– did not wipe his arms; he donned a shirt at some point later that night. Valadez
saw Mora and Rangel leave Lopez’s house with their firearms. They returned empty
handed a short while later.
Lopez told police that immediately following the shooting, Mora grabbed her car
keys. At trial Lopez testified that she heard car engines and the sound of cars being
moved around after the shooting. Lopez observed her car had been moved out of the
garage –– where she had parked it –– and Mora’s car had been moved into the garage,
with Lopez’s car parked behind it. Valadez noticed that Mora and Rangel arrived at
Lopez’s house earlier that night in an Oldsmobile, which they initially parked in a
driveway and later moved to the garage after the shooting.
Lopez told police that Mora asked her to go to the bedroom where their daughter
was sleeping in case the child woke up because of the commotion and so the child would
not have to see “her daddy go to jail.” Lopez testified differently, explaining that Mora
had asked her to go into the bedroom only to ensure their daughter did not wake up
during the kerfuffle following the shooting. In addition to the car movement, the rush of
activity at Lopez’s home after the shooting included the swift extinguishing of lights and
music, and the closing of doors within the house.
3. Investigation
A radio call alerted police officers to a possible shooting on Castlegate. The call
summoned two officers to Beltran and Fonseca’s location at the pay phone –– from
which Beltran had dialed 911, one block from the shooting –– while other officers
simultaneously responded to the Castlegate location. Fonseca and Beltran initially spoke
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with police officers by the pay phone, and later provided detailed statements at the police
station.
At approximately 3:30 a.m., Compton Police Officers Raymond Brown and Sergio
Lepe arrived at the Castlegate scene. Officer Brown saw two men sitting in the front seat
of a 4Runner, nonresponsive, both with gunshot wounds. Bullet casings were strewn on
the ground around the driver’s side of the vehicle. Two wallets were visible in the
vehicle; Encinas’s was in the center console and Urrutia’s was in the passenger seat.
There was a can of Budweiser beneath the 4Runner.
Around dawn that morning, police knocked on Lopez’s door on Castlegate.
Officers interviewed everyone at the house. Following Beltran and Fonseca’s interviews
at the police station, they were driven back to Castlegate to be shown potential suspects
to identify. About 10 individuals, including the partygoers at Lopez’s house, were shown
to Beltran and Fonseca in a field lineup.
Gregorio had witnessed the shootings from the backseat of the 4Runner. He
participated in the field lineup, identifying Mora and Rangel as the shooters. Gregorio
had told the police earlier that night that the shooters were two Latino men. He described
the man on the passenger side, Mora, as shirtless and wearing Joe Boxer brand boxer
shorts and low slung, sagging pants. Gregorio noted that Mora also had a tattoo on his
stomach. Gregorio recalled that the subject of the tattoo was a cross, but observed upon
close inspection in the courtroom that the tattoo was in fact a handwritten name.
Gregorio also observed that Mora had a scar on his abdomen that bisected the tattoo
“down like a cross” with “the name cutting across” the scar. Gregorio testified that he
remembered Mora’s face, and acknowledged that although the tattoo he recalled and the
one he observed on Mora were not identical, Gregorio knew the man on the passenger
side of the vehicle was Mora, stating, “It’s him, I know it’s him. I’m 100% sure.”
Gregorio observed that the man on the driver’s side of the car, Rangel, was wearing blue
track pants and a blue or black shirt.
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Compton Police Officers Eric Strong and Lepe spoke with witnesses on Castlegate
Avenue. John Youngblood, who lived on Castlegate near the location where the 4Runner
had been parked, was watching television in the early morning hours of August 24, 1997.
He heard two gunshots, looked out his window, and observed two men standing by a
4Runner. There were a number of streetlights that illuminated the area. Youngblood
described the lighting as “just like day.” Youngblood observed Rangel, wearing a white
t-shirt and normal length grey khaki pants, standing just outside the driver’s side door of
the 4Runner, and noted that the man by the passenger-side door wore dark clothing and
had short hair. After hearing several more shots being fired, Youngblood saw two men,
one of whom was Rangel,3 running away from the 4Runner.
Another witness, Sheila Creswell, who lived across the street from Lopez and was
unable to sleep because of the noise of the gathering there, noticed that Rangel was
among the partygoers. Creswell heard gunshots, ran to her window, and observed two
men with shaved heads running from a truck parked down the street from her house.
Creswell identified Rangel as one of the men she saw running; she also identified one of
the residents of Lopez’s home, Jade Gallegos, as the other man. She saw both men enter
Lopez’s home, and shortly thereafter observed all the lights in Lopez’s home turn off.
When Lopez’s door was first opened in response to their knock, Officers Strong
and Lepe noticed several people in the living room and numerous cans of Budweiser of
the same type as the one found beneath the 4Runner strewn about. Officers Lepe and
Strong examined Lopez’s home with her consent, finding an Intratec gun case and a
black shirt. Officer Strong, along with Officer Brown, walked around the house to
3 Several days before testifying, Youngblood identified a different individual in a
photographic array shown to him by the prosecutor. Upon testifying, Youngblood
explained that the man in the photograph he initially identified “just doesn’t look like the
guy,” claiming instead that he was “positive” the man he saw on August 24, 1997, was
Rangel.
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Lopez’s detached garage, which Lopez provided consent to search. Partially inside the
garage, with the garage door resting atop it, officers found a burgundy Oldsmobile with
two firearms on the passenger-side floorboard. Mora denied at the scene that the vehicle
was his, but Valadez confirmed that he saw Mora drive the car. Additionally, Lopez
described the car as Mora’s, and Mora’s cousin, Candy Lopez, confirmed at trial that
although the car’s bill of sale was in her name the car actually belonged to Mora.4 Police
found a loaded TEC-9 nine-millimeter semiautomatic assault rifle with the word
“Intratec” written on it and an Astra chrome-plated semiautomatic pistol with a bullet
jammed at the breech in Mora’s vehicle.
Los Angeles County Sheriff Criminalist Dale Higashi examined the Intratec and
Astra firearms, noting that the Astra was jammed due to a feeding problem. After
comparing casings recovered from the crime scene with those produced during ballistics
testing, Officer Higashi concluded that three casings were fired from the Astra and an
expended cartridge case originated from the Intratec. The bullet recovered from
Encinas’s body was shot from the Astra and the bullet recovered from Urrutia’s body was
shot from the Intratec.
4. Defense Evidence
The defense presented evidence that witnesses inconsistently described the
shooters’ clothing. For example, in Beltran’s initial statement to Officer Gonzalo Cetina,
she identified one of the shooters as wearing no shirt with grey pants, and the other as
wearing all brown clothing. As described above, Castlegate resident Youngblood
described Rangel as wearing a white t-shirt and khaki pants, while the other shooter wore
all dark clothing. Gregorio noted that Mora was shirtless, had a tattoo on his abdomen,
4 Candy Lopez confirmed that the car was not formally registered with the DMV.
Mora paid for the car, but used his cousin’s name on the bill of sale because he lacked
automobile insurance.
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and wore Joe Boxer brand underwear with sagging pants. Gregorio testified that Rangel
wore blue track pants and a blue or black shirt. At the field lineup, Gregorio was only
able to identify Mora, describing him as the shirtless man that stood on the passenger side
of the 4Runner.5 Officer Timothy Dobbin, who took Fonseca’s statement, wrote down
that she identified Mora as the man on the driver’s side of the vehicle who had asked
Encinas if he wanted to go to sleep, although Officer Dobbin testified that he may have
reversed Mora and Rangel’s identities.
Jade Gallegos lived with Lopez and attended the party. He was Latino, had a
shaved head, a tattoo on his abdomen, and appeared to be the same height and weight as
the suspects described by witnesses. Beltran described both shooters to police as
appearing to be about 5’8.” In fact, Gallegos was 5’6” or 7,” while Mora was 5’11.”
Neither Gallegos nor Mora had been wearing shirts prior to the shooting. Castlegate
resident Sheila Creswell, who lived across the street from Gallegos and saw him daily,
testified that she saw Rangel and Gallegos, not Mora, running away from the 4Runner
after she heard shots fired on the morning of August 24, 1997. Creswell acknowledged
she never saw the faces of the two men.
Rangel also presented evidence concerning gunshot residue. A residue test was
performed on Rangel at about 9:30 a.m. on August 24, 1997. The result of the testing
was inconclusive. Only irregularly shaped lead and tin particles were found on Rangel.
No residue was noted on Rangel’s hands.
Mora presented no defense evidence save for a stipulation that an exhibit was a
true and correct photograph depicting the way Mora looked on August 24, 1997.
5 Officer Ed’ourd Peters testified that Gregorio made only one identification, of
Mora, during the field lineup, although Gregorio testified that he identified both Mora
and Rangel during that lineup. Gregorio positively identified both Mora and Rangel
during the preliminary hearing, and confirmed at trial that he was able to, and did,
identify Rangel as well as Mora.
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B. Penalty Phase
1. Rangel Aggravating Evidence
Rangel was arrested in 1995 and charged with burglary of a motor vehicle,
terrorist threats, and vandalism; Rangel was ultimately convicted of second degree
burglary of an automobile. In October 1995, Alejo Esquer testified (reluctantly) that he
saw Rangel and another man pushing his truck away from where it had been parked and
locked. The window of the truck was broken, the number 13, letter T and “KCC” had
been painted onto the truck, and the stereo and speakers had been pulled out of the truck.
Rangel began to run away once Esquer saw him, and Esquer gave chase. Esquer
confronted Rangel, and Rangel told Esquer that Rangel knew where Esquer lived and if
Esquer did not leave Rangel alone or if he called the police, Esquer would be killed.
Kevin Hilgendorf, a deputy sheriff for Los Angeles County, was the officer who
arrested Rangel for this. He responded to a call reporting a vehicle theft in progress, and
he observed Rangel and other men standing on a sidewalk near a truck with a broken
window, and its stereo and speakers removed. Officer Hilgendorf observed the letters
“KCC” spray-painted in white on the truck, which he since learned meant “King City
Criminals.” Officer Hilgendorf did not recall seeing the number “13” painted on the
truck, although a gang expert, Officer Andrew Zembal,6 testified that the number is also
associated with the King City Criminals. A can of white spray paint was on the sidewalk
near the group of men and Rangel had white paint on his hands. Esquer told Officer
Hilgendorf that Rangel threatened Esquer’s life –– a threat Officer Hilgendorf took
seriously given Rangel’s gang affiliation. Esquer felt sufficiently concerned about
Rangel’s threat that he moved to a different residence before Rangel’s anticipated release
from jail.
6 Officer Zembal testified that Rangel is a “hard core gang member” with a wanton
disregard for life, as evidenced by his numerous, highly visible tattoos.
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2. Mora Aggravating Evidence
In July 1996, Mora was in custody at the Los Angeles County Jail. During this
period of incarceration, Mora assaulted fellow inmate Paul Juhn, stole the mattress from
Juhn’s bunk, and returned to Juhn’s bunk with several other men, all of whom yelled
racial epithets at –– and physically assaulted –– Juhn. Juhn identified his assailants
during a jailhouse lineup, and Deputy Kresimir Kovac, an officer at Los Angeles County
jail in July 1996, later determined one of the men identified was Mora. Deputy Kovac
noted at the time of the Juhn assault that Mora had a distinctive tattoo comprised of three
words; Deputy Kovac testified at Mora’s trial that Mora still bore that tattoo.
3. Encinas Victim Impact Evidence
Luz Gamez was Encinas’s sister. She testified that Encinas was an avid sportsman
while attending St. Anthony’s high school. Encinas’s family would attend his football,
baseball, and basketball games. Following high school, Encinas attended community
college and worked as a dispatcher. He hoped to become a police officer and had passed
the Los Angeles Police Academy’s test just two months prior to his death.
Gamez testified regarding childhood pictures of Encinas, which showed Encinas’s
father standing with him at several sporting events, as well as Encinas’s baptism and
other childhood events. Encinas was a shy, loving, helpful child and young man. He
enjoyed a close relationship with his nephew, Edgar, Gamez’s son. Edgar, who was
nineteen years old at the time of the trial, continued to sleep in the room they shared, in
the bed next to Encinas’s former bed. Sergio Encinas, Encinas’s older brother, testified
that Encinas “was a 300-pound teddy bear. He was lovable. Everybody liked him.
Everybody.”
Encinas was to have attended a wedding with his family the day he was shot, but
worked instead. When the family returned home that night, Encinas still was not home.
Encinas’s mother waited up for him all night, finally calling Encinas’s sister around
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6:00 a.m. to tell her Encinas had been shot and was in surgery. By the time the family
arrived at the hospital, Encinas had died.
Sergio was asked to identify his brother’s body. Sergio testified that he was taken
to the morgue, saw his brother’s dead body, and had to inform his parents and family that
Encinas had died. Sergio described the experience as very painful: “it ruined me, too,
physically, mentally, telling, you know, your mom, your dad, your brother, your uncle,
‘he will never be here. You will never see him alive.’ ”
Encinas’s mother and father became ill following their son’s death. Encinas’s
father was so emotional following Encinas’s death that the family decided not to tell him
when the trial was taking place, fearing for his health and the potentially exaggerated
nature of his reaction were he to attend the trial. Encinas’s mother was too ill to attend
the trial, although she knew when it was taking place. Sergio Encinas also suffered
physical ailments as a result of his brother’s death, including ulcers and headaches.
Encinas’s family views his death as a pain that can never be healed.
Beltran, Encinas’s girlfriend, testified about how she was affected by his death.
The two had planned to marry and dreamed of having children together. Beltran felt
guilty in the wake of his murder, believing that if she had not paged him, he would still
be alive. She has not been able to forgive herself.
4. Urrutia Victim Impact Evidence
Urrutia’s sister, Olivia Perez, testified that Urrutia dreamed of becoming a police
officer. Urrutia attended Long Beach City College after graduating from high school and
passed the test for the Long Beach City Police Department before he had reached the
minimum age of eligibility. He passed the test for the Los Angeles Police Department
four months prior to his death. Out of deference to his parents, who feared for his safety
and required his financial assistance, he continued to put off his dream of becoming a
police officer, working as a loan representative in the meantime. Urrutia was honored
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posthumously: his workplace closed for a week in the wake of his death, and Long
Beach City College erected a mural in his honor for the month of September 1997.
Urrutia’s sister testified regarding childhood photographs of her brother. The
photos depicted Urrutia’s first communion and high school graduation, as well as photos
of him as a child, with his family, and at work. Urrutia joined the Explorer Scouts as a
child. He volunteered as an interpreter at St. Mary’s Hospital, assisting with Spanish
translation between patients and doctors. Urrutia also volunteered on a neighborhood
committee to clean the area and rebuild local homes.
Urrutia and Encinas played football together. Urrutia’s nephew, Javier Soto, was
two years younger than Urrutia and played sports and attended school with him. Soto
recalled that the group of friends of which Urrutia and Encinas were a part was
“unbelievable,” and Soto misses Urrutia every day.
Urrutia’s mother, Virginia Urrutia, testified about her close relationship with her
son, who attended church with her weekly. Urrutia had also been close with his father
until his father’s death. Urrutia had helped his family care for the father’s grave.
Urrutia’s mother fondly remembers Urrutia’s time as an altar boy between the ages of
seven and twelve. Urrutia lived with his mother at the time of his death, and she recalled
waiting up for him many nights, including the night he died.
5. Rangel Mitigating Evidence
Rangel’s mother testified that she began living with Rangel’s father, Ruben
Gomez Rangel, when she was 17 years old. After her mother died when she was a child,
Rangel’s mother grew weary of acting as a parent to her four younger sisters. Living
with relatives and alone, Rangel’s parents changed residence about four times before
Rangel was born in 1975. Rangel also has an older sister, Carmen, born three years
before him.
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Rangel’s parents abused alcohol and, from the time Rangel was about six years
old, began using heroin. Once, when Rangel was nine years old, he saw his parents in the
bathroom at home preparing to inject heroin. Rangel’s parents’ drug use was in part
financed through a settlement Rangel’s father received following a workplace injury.
Rangel’s mother routinely used heroin while Rangel and his sister were home and she
was purportedly providing care for them. Rangel’s parents sometimes failed to feed their
children and Rangel’s older sister, Carmen, would find food for her and Rangel to eat.
Rangel’s mother sometimes took her children with her to use heroin with her sisters.
Rangel’s mother testified she used heroin and provided poor care for her children.
Rangel’s father also neglected his children when trying to obtain more drugs. Rangel’s
father sometimes became violent when he consumed alcohol. Rangel’s parents separated
when Rangel was about five years old; Rangel lived with his father for a few years after
that. Rangel’s mother continued to use heroin for several more years, supporting her
habit via prostitution, although she endeavored to hide her means of making a living from
Rangel. Rangel’s mother stopped using heroin in the late 1980s, after her sister died
from a heroin overdose. By the time of Rangel’s trial, Rangel’s mother had been drug-
free for 11 years. After Rangel’s mother stopped using heroin, Rangel and his sister
began living with their mother again. Rangel cut his hair short and began to favor
wearing baggy clothing. Rangel’s sister did not believe Rangel was becoming a member
of a gang. Rangel knew his father was a gang member. When Rangel was 10 years old,
he and his father were shot at by a rival gang. Rangel’s father advised Rangel to avoid
gangs. Rangel’s mother could not recall whether Rangel graduated from high school.
His father recalled that Rangel attended high school for some time but had not graduated.
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As a teenager, Rangel began attending church with his mother. Over the course of
several years, Rangel attended bible study with Jose Jimenez.7 Jose testified that it was
hard to believe Rangel had been convicted of murder, and that he would have been
surprised even to hear that Rangel had attempted to steal a car or that he had made threats
against the owner of that car. Rangel married his wife, Aurora Rangel, in Jose’s home.
Rangel and Aurora had a daughter, Vanessa. After Aurora and Rangel split up, Rangel
saw Vanessa once every two weeks. Aurora has not told their daughter where Rangel is,
despite the daughter’s queries. Rangel also had a girlfriend, Desiree Leanos, with whom
he had two children, the youngest born after his arrest. Leanos testified that she visits
Rangel weekly with their two children, despite the fact that Rangel has a new girlfriend,
whom he met months before he was arrested. The jury was shown photos of Rangel’s
daughters and the other members of his family.
On the day of the shooting, Rangel attended a family barbeque along with Leanos,
Vanessa, and other members of Rangel’s family to celebrate the birthday of Rangel’s
half-sister. Rangel fell asleep at about 9:00 p.m. after spending the day drinking, and was
paged around 11:30 p.m. to go somewhere. Desiree urged Rangel not to leave, but he
bade her and their daughter goodbye and left.
6. Mora Mitigating Evidence
Mora’s father, Cruz Mora, testified that he was not certain of his paternity because
he knew that Mora’s mother, R.M., had sexual relationships with many members of his
family. Cruz testified that he and his family members paid R.M. for their sexual
encounters. Cruz married R.M. when she was eight months pregnant. The couple’s
7 Jose Jimenez will be referred to throughout as “Jose” to avoid confusion with
Yesenia Jimenez (referred to throughout as Jimenez), the friend of Paula Beltran whose
house on Castlegate was the site of initial contact between defendants and the victims,
and to avoid confusion with the partygoer at Lopez’s house, also named Jose Jimenez.
16
marriage was not happy and Cruz physically abused R.M. Cruz left R.M. four years into
the troubled marriage, but the two reunited some time thereafter for a few years.
After his parents’ divorce, Mora lived with his aunt for a few months. Mora
returned to his mother’s home between the ages of five and thirteen, during which time
R.M. was frequently absent from the home working, drinking at bars, and using drugs.
R.M. remarried, and Mora again lived with his aunt, who provided good care. Mora
never returned to his mother’s home. R.M. testified that she believed herself to have
been a bad mother and wished she could take Mora’s place if he was to be executed.
When Mora was 14, he moved in with his 19-year-old cousin, Candy Lopez.
Mora then became involved with Lourdes Lopez (who was not related to Candy) and
Lourdes Lopez and Mora had a daughter together when Mora was 18 years old. The jury
was shown photos of Mora with his daughter and family.
Mora, Lopez, and their child lived with Cruz for a couple of months when Mora
was 19, until Cruz asked them to leave because they were messy. When Mora was 19
years old he suffered a gunshot wound, and Cruz visited him in the hospital during his
recovery. After Cruz asked Mora and his family to move out, Cruz had little contact with
Mora.
II. DISCUSSION
A. Guilt Phase
1. Discovery Delays
a. Background
Mora and Rangel allege that a number of documents were not disclosed in timely
fashion during the discovery process: one of two transcripts of Lopez’s interview with
police on the day of the shooting, diagrams of the scene, police reports containing witness
interview notes, a gunshot residue (GSR) report, and a report containing the results of
fingerprint testing. The disclosure of each is addressed below.
17
On January 19, 1999, during Lopez’s testimony, Rangel discovered that he had
been given only the first of two transcripts of Lopez’s interviews with police. Rangel’s
attorney informed the court that she was missing a copy of that transcript. Mora’s
attorney had copies of both transcripts, and the prosecution asserted that copies of the two
transcripts had also been provided to Rangel. The court resolved the issue by concluding
proceedings for the day to allow Rangel’s counsel time to make a copy of the transcript
and review it before Lopez’s testimony resumed the following day. No objections to this
course of action were made.
Before court adjourned, Rangel’s counsel noted that she was also missing a copy
of a diagram she had seen a day or two earlier in Detective Mike Piaz’s notebook. 8 She
had asked Detective Piaz for a copy of the diagram, and when Detective Piaz complied he
provided a copy of a second diagram that Rangel’s lawyer also had not seen before. Both
were diagrams of the scene and both were dated August 26, 1997; neither had been
disclosed during discovery. Mora’s lawyer also had not received copies of the two
diagrams during discovery.
The prosecution assured the court and defense that it had provided Mora and
Rangel with copies of all documents. The court suggested that Rangel’s attorney review
the documents stored in Detective Piaz’s office to determine whether she was missing
copies of anything else. Rangel’s attorney did so.
The next morning, on January 20, 1999, Rangel’s attorney informed the court that
review of the documents stored in Detective Piaz’s office revealed further discovery
neither she nor Mora’s counsel had received, including a number of reports containing
“very critical” information about witnesses. Specifically, the undisclosed documents
included a four-page report dated August 24, 1997, regarding Enrique Parra; an eight-
8 Detective Piaz replaced Detective Marvin Branscomb as the lead detective on this
case on April 1, 1998. The jury was advised that Detective Piaz would be assisting the
prosecutor throughout the trial.
18
page report dated August 24, 1997, regarding Jade Gallegos; a three-page report
concerning Ramon Valadez with an attached warrant; and a nine-page follow-up
investigation report prepared by the Compton Police Department, which contained a
number of witness statements. The nine-page report contained statements from thirteen
neighborhood witnesses, none of whom had been previously disclosed to the defense.
Mora and Rangel argued that several of the undisclosed witnesses made observations
inconsistent with the testimony already given. Had the nine-page witness report been
made available earlier, they asserted, the scope and subjects of the already-conducted
cross-examination would have differed.
Because these reports, along with the two diagrams and Lopez’s interview
transcript, had not been provided to the defense until trial was well underway, Mora and
Rangel requested that the case be dismissed. The court indicated it would “consider a
less dramatic sanction than that at the outset,” and Rangel and Mora sought a week-long
recess to investigate the witness statements contained within the nine-page report. The
court acknowledged that it was troubled by some of the statements in the newly
discovered reports and “more than a little concerned about the fact that” the reports had
not been “delivered to defense counsel.” The prosecutor clarified that the newly
discovered reports were also not in her possession.
The court agreed with Mora and Rangel that further investigation was warranted,
at least with regard to two witness statements. These statements described how a car
drove away from Castlegate around the time shots were fired, and how a woman’s voice
was heard outside arguing around the time shots were fired. The court granted a five-day
recess to permit the defense time to interview the newly disclosed witnesses, and ordered
a status conference be held two days later to confirm that a five-day recess would be
sufficient. Counsel for Mora told the court, “We’ll do the best we can within that time
frame, your honor.”
19
That same day, January 20, 1999, the prosecution turned over additional
documents not previously provided to the defense: a witness statement by Jimenez, the
passenger in Beltran’s car who lived on Castlegate; a warrant regarding Gallegos; and a
receipt related to a GSR report. The GSR report had been provided to the defense, but
not until January 7, 1999, just five days before trial began. Due to the report’s late
disclosure and its inculpatory nature with regard to Mora, the court excluded it. Rangel
was permitted to address the report and did so, but was prohibited from commenting on it
as it related to Mora. Only the receipt for the report was turned over on January 20,
1999.
At the January 22, 1999, status conference, Rangel’s counsel announced readiness
to proceed at the conclusion of the five-day recess. Mora’s investigator had difficulty
contacting one of the 13 witnesses. The court and prosecutor discussed the fact that the
witness’s family had been cooperative, and the court was confident the witness could be
reached before trial resumed on Monday. Mora’s attorney asked the court how to
proceed if the witness could not be reached by the conclusion of the five-day recess, and
the court advised to “keep at it.” No objection or further colloquy followed.
In light of the numerous late-disclosed documents, the defense again requested
that the case be dismissed. Mora and Rangel argued that most if not all the undisclosed
discovery contradicted prior testimony and the prosecution’s case. The court denied the
request, but echoed the concern that some of the newly discovered statements may have
been “contrary to the evidence that’s been presented in court so far.” The court explained
that the remedy to date had been to suspend the trial and provide counsel with “an
opportunity to communicate with these witnesses.” Mora and Rangel then requested a
jury instruction be provided concerning the late discovery, and the court acceded, asking
20
that an instruction be prepared for its review when they reached that phase of the
proceedings. Proceedings resumed the following Monday, January 25, 1999.9
On February 2, 1999, after the prosecution rested, another previously undisclosed
document, a fingerprint testing report, was turned over to the defense. Throughout the
proceedings, the defense claimed the prosecution maintained that no fingerprint testing
had been conducted. In fact, four shell casings and the beer can beneath the 4Runner had
been tested for fingerprints, but the Intratec and Astra magazines and rounds had not been
tested, nor had four of the expended shell casings. No fingerprints were found on the
tested items.
When they received the fingerprint report, Mora and Rangel requested a mistrial.
They argued that the “continuum” of discovery violations warranted relief, and
specifically that the failure to timely disclose the fingerprint report impaired their ability
to effectively cross-examine police officers who testified during the prosecution’s case-
in-chief. The court declined to grant a mistrial. Mora and Rangel then proposed the
court exclude the fingerprint report, permitting the parties to proceed as though it never
existed. The court denied this request, as well, expressing concern about misleading the
jury. Instead, the court proposed informing the jury about the content and recent
discovery of the fingerprint report, and suggested clarifying for the jurors that no party
had been aware of the report prior to its discovery. The court assured counsel that the
jury would “be given a specific instruction later.” The court then informed the jury as
described.
At the conclusion of the guilt phase, Mora provided the court with a proposed
special instruction concerning the discovery delays. The court rejected that instruction,
9 At the conclusion of the first day of resumed proceedings, four of the witnesses
identified in the previously undisclosed report appeared in court in response to a
prosecution subpoena. One of the witnesses, John Youngblood, testified for the
prosecution later in the proceedings. Rangel raised claims regarding his alleged inability
to prepare for cross-examination, addressed in section II.A.2., post.
21
instead giving CALJIC No. 2.28, fully set forth in footnote 12, post, modified to include
the stipulations contained in Mora’s proposed instruction. The court twice indicated its
intent to hold a sanctions hearing at the end of the trial regarding the discovery delays,
although no such hearing ever occurred.
b. Discussion
1. Statutory and Brady Error
Mora and Rangel allege the prosecution’s failure to timely disclose the documents
and reports described above violated the discovery statutes and constituted Brady10 error.
A trial court’s discovery rulings are reviewed for abuse of discretion. (People v. Ayala
(2000) 23 Cal. 4th 225, 299.) The trial court possesses the discretion to determine what
sanction is appropriate to ensure a fair trial. (People v. Jenkins (2000) 22 Cal. 4th 900,
951 (Jenkins).) Under Brady, “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
(Brady, supra, 373 U.S. at p. 87.)
Mora and Rangel admit they eventually received the relevant documents from the
prosecution. But they contend that the delayed disclosure of discovery constituted a
Brady error of constitutional magnitude because the documents were not received within
sufficient time to use it effectively at trial. (See People v. Wright (1985) 39 Cal. 3d 576,
590–591.) They further argue that the prosecution had a duty to disclose any exculpatory
evidence it reasonably could have learned, even if the prosecution was actually unaware
of that evidence. (In re Brown (1998) 17 Cal. 4th 873, 879–880.)
Mora and Rangel also allege the delayed disclosure of documents constituted a
violation of the discovery statutes. Section 1054.1 provides, in pertinent part, that the
“prosecuting attorney shall disclose” certain types of material to defense counsel if the
10 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
22
evidence “is in the possession of the prosecuting attorney or if the prosecuting attorney
knows it to be in the possession of the investigating agencies.” Such disclosure “shall be
made at least 30 days prior to the trial” or as soon as the prosecution learns of the
documents or information. (§ 1054.7.) To prevail on a claim alleging a violation of
discovery statutes, an appellant must show there is a reasonable probability that, had the
evidence been disclosed, the result of the proceedings would have been different.
(People v. Zambrano (2007) 41 Cal. 4th 1082, 1132 (Zambrano).)
No Brady errors occurred here. Evidence actually presented at trial is not
considered suppressed for Brady purposes, even if that evidence had not been previously
disclosed during discovery. (People v. Verdugo (2010) 50 Cal. 4th 263, 281, citing
People v. Morrison (2004) 34 Cal. 4th 698, 715; but see U.S. v. Devin (1st. Cir. 1990)
918 F.2d 280, 289; U.S. v. Scarborough (10th Cir. 1997) 128 F.3d 1373, 1376.) In
U.S. v. Devin and U.S. v. Scarborough, the First and Tenth Circuit Courts of Appeals
addressed an issue similar to the one presented here, explaining that when considering
whether delayed disclosure rather than “total nondisclosure” constitutes a Brady
violation, “the applicable test is whether defense counsel was ‘prevented by the delay
from using the disclosed material effectively in preparing and presenting the defendant’s
case.’ ” (U.S. v. Devin, supra, 918 F.2d at p. 289; see also U.S. v. Scarborough, supra,
128 F.3d at p. 1376.) Both courts examined exculpatory evidence belatedly disclosed,
ultimately finding no error arose from that delayed disclosure. (U.S. v. Devin, supra,
918 F.2d at p. 289; see also U.S. v. Scarborough, supra, 128 F.3d at p. 1376.)
We likewise conclude no prejudice arose from the instances of delayed disclosure.
The prosecution’s failure to disclose the fingerprint reports during the normal course of
discovery did not result in prejudice to defendants. The fingerprint report was made
available to the prosecutor and defense counsel as soon as it was discovered to have been
unintentionally omitted, and the court admitted it with an admonition to the jury
23
regarding its untimely disclosure. Accordingly, no Brady error resulted. (See People
v. Verdugo, supra, 50 Cal.4th at p. 281; Brady, supra, 373 U.S. at p. 87.)
We similarly conclude defendants were not prejudiced by the delayed disclosure
of diagrams and police reports containing witness statements. Although they were not
admitted at trial, they did not constitute favorable evidence that was suppressed within
the meaning of Brady. (Brady, supra, 373 U.S. at p. 87.) After learning that some of the
witness statements contained information that differed from testimony already adduced,
the court called for a five-day recess to ensure that defense counsel had adequate time to
investigate. They did, and failed to present any evidence as a result of those
investigations. Neither Mora nor Rangel sought to recross-examine any of the witnesses
that had provided prior testimony, and neither indicated anything more than the five-day
recess was needed to cure the late disclosure; Mora announced readiness to proceed at
conclusion of recess, and Rangel did not object to court’s announcement that trial would
resume at conclusion of recess. Accordingly, no prejudice resulted from the delayed
disclosure of witness statements.
We also find no statutory error. Mora and Rangel assert that the trial court found
the discovery statutes were violated, but the court made no such finding. Defendants
argue that the evidence was accessible to the prosecution because it was located in
Detective Piaz’s trial notebook, rendering the failure to disclose it a violation of section
1054.1. While it is concerning that the prosecution was unaware of so much about the
case that resided in the Compton Police Department’s files, no statutory error arose.
Because “the material and information [became] known to, or [came] into the possession
of, a party within 30 days of trial, [and] disclosure [was] made immediately,” no violation
of the discovery statutes occurred. (§ 1054.7.) No prejudicial statutory violation can be
made out because neither Mora nor Rangel can demonstrate a reasonable probability that
the results of the proceedings would have been different had the evidence been timely
disclosed. (Zambrano, supra, 41 Cal.4th at p. 1132.)
24
That said, the number of discovery delays that occurred in this case gives cause for
concern, as the trial court noted. Nonetheless, as soon as the prosecution learned of
various late-disclosed documents, they were made available to the defense. The gunshot
residue report was not completed until the day before it was provided to the defense. The
crime scene diagrams were discovered by Rangel; the prosecutor had never seen them.
The police reports containing witness statements were likewise discovered by defense
attorneys. Lopez’s second interview transcript was given to Mora, and the fact that
Rangel did not have it far in advance undoubtedly did not alter the outcome of the trial.
(See Zambrano, supra, 41 Cal.4th at p. 1132.) Finally, the prosecution had not been
aware that a fingerprint report existed, and when a prosecution witness became alerted to
the possibility that a report had been made but not disclosed to the parties the report was
immediately located and disclosed.
Rangel and Mora argue they were “simply unable mid-trial to make the effective
use of the untimely disclosed evidence.” Yet they provide no example of choices that
would have differed had the discovery been made available earlier, and the record reveals
no obvious defense strategy foreclosed by the late disclosure. In fact, Mora and Rangel
were able to contact every witness listed on the previously undisclosed police reports.
Neither Mora nor Rangel sought to further cross-examine any witness who had testified
before the police reports were discovered and disclosed. Further, Rangel and Mora both
had an opportunity to review and utilize the transcripts of Lopez’s interview with police.
Rangel was able to present evidence regarding the somewhat exculpatory gunshot residue
report. Most tellingly, short of a new trial, neither Mora nor Rangel sought a remedy the
court did not provide.
Although Mora and Rangel allege the trial court abused its discretion by failing to
grant a mistrial, we find no error. In People v. Wright, as here, the prosecution
inadvertently failed to disclose certain police reports containing witness statements that
differed from prosecution evidence previously presented. (People v. Wright, supra,
25
39 Cal.3d at p. 590.) Rather than granting mistrial or dismissal, the court instructed the
jury and permitted the defense to reopen testimony to address the erroneously suppressed
evidence. (Id. at pp. 590–591.) The defendant argued that the remedy was insufficient to
cure the error, but we disagreed. Because the suppression was discovered before a
verdict was rendered — indeed, before jury deliberations had begun — we concluded,
particularly in light of the remedy provided by the trial court, that the suppression did not
deprive the “defendant of a fair trial.” (Id. at p. 591.)
In similar fashion, Mora and Rangel had an opportunity to address the late-
disclosed evidence in this case. Their assertion on appeal that trial counsel “had a
materially incorrect understanding of the state of the evidence when developing” the
defense theory “and when cross-examining prosecution witnesses” is unsupported.
Neither sought to conduct further cross-examination of any witness. Mora and Rangel
now contend that the remedies offered by the court were not only inadequate but at times
caused further harm, and that it is impossible to imagine how the trial would have gone
absent the discovery errors. This claim is specious.
The court gave Mora and Rangel an opportunity to propose remedies. Indeed,
other than dismissal or mistrial, the remedies requested were provided. Accordingly, it
does not appear the court abused its discretion, particularly because it provided Mora and
Rangel with the relief they sought. (Jenkins, supra, 22 Cal.4th at p. 951 [court possesses
discretion to determine what remediation ensures fair trial].) Moreover, the court did not
abuse its discretion by denying Mora and Rangel’s motions for mistrial as that remedy
would have been unduly extreme given the stage of proceedings. (People v. Harris
(2013) 57 Cal. 4th 804, 848 [trial court possesses broad discretion in ruling on motion for
mistrial]; see also People v. Wright, supra, 39 Cal.3d at p. 591.)
Finally, to the extent any error resulted from delayed disclosure, it was harmless
because there is no reasonable probability that any error affected the trial result.
(People v. Watson (1956) 46 Cal. 2d 818, 836 (Watson); Zambrano, supra, 41 Cal.4th at
26
p. 1135, fn. 13.) Mora and Rangel had an opportunity to address the late-disclosed
evidence and, for the most part, declined to do so. What little untimely discovery existed
inculpating Mora or Rangel was suppressed by the court. Where the evidence was
exculpatory, Mora and Rangel were permitted to — and did — address it. To the extent
the evidence was equivocal, Mora and Rangel were given an opportunity to investigate
and argue the import of that evidence. Indeed, Mora and Rangel may have fared better in
their trial in light of the late disclosure because it resulted in the exclusion of some
unfavorable evidence. They were not harmed by the late disclosure because they were
able to use the evidence as they would have if it had been timely disclosed. Accordingly,
the error, if any, was harmless.
2. Instructional Error
At the end of the guilt phase, Mora requested that the court provide a special
instruction concerning the discovery delays.11 The court declined to give the requested
instruction, but gave instead a modified version of CALJIC No. 2.28 that explained the
rules of discovery and noted that the Compton Police Department failed to timely
disclose reports containing witness statements and a fingerprint testing report.12 The
11 In its entirety, the proposed instruction stated, “In this case the Prosecution
violated the Discovery Laws by failing to turn over to the Defense, police reports
involving this case, and other evidence. The law requires that all discovery must be
reciprocal and given to the defense 30 days prior to the start of trial. [¶] This violation
was unfair to the defense and put them in a position where they have had to continue to
investigate this case during the course of the trial. [¶] This violation was largely
attributed to the Investigative officers and Detectives from the Compton Police
Department who withheld these reports from the Defense. [¶] You may consider this
violation and give it whatever weight and/or significance you believe it deserves in your
deliberations.”
12 The instruction given by the court stated, in its entirety, “The prosecution and the
defense are required to disclose to each other before trial the evidence each intends to
present at trial so as to promote the ascertainment of the truth, save court time and avoid
any surprise which may arise during the course of the trial. Delay in the disclosure of
evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or
27
court stated that its modification of CALJIC No. 2.28 “specifically left out” language
regarding intent from the standard instruction “because I don’t think there is any showing
of intent. I think it’s more negligence than anything else based on what I have heard.”
Neither Rangel nor Mora objected to the court’s instruction as given or the court’s
characterization of the discovery delays as negligent.
Rangel also requested that the court instruct the jury that the beer can found
beneath the 4Runner was not immediately made available to a defense expert. The court
declined that request because it was factually inaccurate; the can was provided promptly
once defense counsel requested it.13
Mora and Rangel now contend the court erred by failing to give the requested
instruction regarding discovery delays, and that it erred by using the modified version of
CALJIC No. 2.28 to instruct the jury. They argue that the instruction, as given, was
incomplete because it identified the Compton Police Department as the party responsible
for the discovery delays, not the prosecution generally. Mora and Rangel further argue
that the instruction should have clarified that the prosecution “concealed” the evidence.
produce evidence which may exist to rebut the non-complying party’s evidence. [¶]
Disclosures of evidence are required to be made at least 30 days in advance of trial. Any
new evidence discovered within 30 days of trial must be disclosed immediately. In this
case, the Compton Police Department failed to timely disclose the following evidence:
[¶] 1) Witness statements elicited from people residing on Castlegate Avenue on August
24, 1997, including a statement from John Youngblood; and [¶] 2) Fingerprint analysis
report dated December 3, 1997. [¶] Although the Compton Police Department’s failure
to timely disclose evidence was without lawful justification, the Court has, under the law,
permitted the production of this evidence during the trial. [¶] The weight and
significance of any delayed disclosure are matters for your consideration. However, you
should consider whether the untimely disclosed evidence pertains to a fact of importance,
something trivial or subject matters already established by other credible evidence.”
13 When Rangel initially requested the beer can be brought to court to aid in witness
testimony, he was misinformed by a member of the Compton Police Department that the
can could not be located. In fact, the prosecution did know the location of the can and,
once Rangel requested it, made sure the can was retrieved and brought to court later that
same day.
28
Finally, they contend that CALJIC No. 2.28 fails to adequately guide a jury’s
understanding of how tardy discovery should impact deliberation.
Because Mora and Rangel failed to object to the court’s modifications of CALJIC
No. 2.28, their claim of error on appeal is forfeited. (See People v. Bolin (1998)
18 Cal. 4th 297, 326 [failure to object to wording of jury instruction forfeits appellate
claim of error].) Even if Mora and Rangel had preserved this claim for appellate review,
the trial court did not err by declining to give the requested special instruction, nor did it
err by deploying the modified CALJIC No. 2.28 to instruct the jury. It is true that
CALJIC No. 2.28 has been the subject of significant criticism in the courts of appeal.
(People v. Riggs (2008) 44 Cal. 4th 248, 306–307.) Many such critiques are inapposite, as
they relate to discovery delays caused by a defendant, not those caused by the
prosecution. Nonetheless, the instruction’s detractors have claimed –– as do Mora and
Rangel in this case –– that it fails to “provide explicit guidance to the jury regarding why
and how the discovery violation would be relevant to its deliberations.” (Id. at p. 308.)
In particular, Mora and Rangel argue the given instruction did not articulate how the
delayed discovery affected the defense’s presentation of their case by curtailing their
ability to subpoena witnesses and requiring they proceed hastily and without adequate
preparation during the course of the trial.
Mora and Rangel do not persuade on this point –– and the language of the
instruction shows why. The trial court conveyed CALJIC No. 2.28 to the jury as follows:
“Delay in the disclosure of evidence may deny a party a sufficient opportunity to
subpoena necessary witnesses or produce evidence which may exist to rebut the non-
complying party’s evidence.” The jury was informed of the nature of the unfairness
wrought by late disclosure, and was told to evaluate the significance to attach to that
inequity by considering whether the undisclosed evidence “pertains to a fact of
importance, something trivial or subject matters already established by other credible
evidence.” This language constituted “a proper statement of the applicable law, from
29
which the parties could argue inferences that might (or might not) be drawn from the
evidence presented at trial.” (People v. Riggs, supra, 44 Cal.4th at pp. 310–311.) To the
extent the instruction permitted the jury to speculate and presume the discovery delay
was sufficient –– alone –– to cast doubt on Mora and Rangel’s guilt, the ambiguity
favored them.
Mora and Rangel next assert that the court erred by instructing the jury that the
Compton Police Department, not the prosecution generally, was to blame for the delayed
discovery. As Mora and Rangel note, the prosecution is charged with discovering and
disclosing material exculpatory evidence even if maintained by a different agency.
(In re Brown, supra, 17 Cal.4th at pp. 879–883.) There is no indication here that the
prosecution failed to do that. The witness statements described in the instruction were
not necessarily exculpatory; many of the statements were inculpatory or equivocal. The
fingerprint report, to the extent it was exculpatory, was admitted, and its admission
occurred over Mora and Rangel’s objection.
Even if the evidence was in fact material and exculpatory, and the prosecution was
therefore required to discover and disclose it, nothing in the instruction constituted an
excuse of the prosecutor’s failure to disclose. Rather, the instruction informed the jury of
the prosecution agency responsible for the delay in disclosure and invited the jury to
accord the necessary weight to that delay. Under section 1054.5, the court may order the
noncompliant party to make “immediate disclosure” where only one party fails to comply
with the discovery statutes, or the court may initiate “contempt proceedings, delay[] or
prohibit[] the testimony of a witness or the presentation of real evidence,” or order a
continuance. (§ 1054.5, subd. (b).) In addition, “the court may advise the jury of any
failure or refusal to disclose and of any untimely disclosure.” (Ibid.) Here, the delayed
discovery was immediately disclosed, and the jury received an instruction concerning the
delay. These remedies are consistent with the statute. (Ibid.) The trial court did not
30
abuse its discretion by providing the modified CALJIC No. 2.28 instruction, which
modification included a precise identification of the agency responsible for the delay.
To the extent any error arose from identifying the police department and not the
prosecution more broadly as the agency responsible for the delays, the error was harmless
under any standard in light of the overwhelming evidence of guilt. (Neder v. United
States (1999) 527 U.S. 1, 17.) Beltran, Encinas’s girlfriend and a witness to the
beginning of the altercation, identified both Mora and Rangel from among approximately
11 individuals in a field lineup. Fonseca, the passenger in Beltran’s car, also observed
the assailants and identified both Mora and Rangel during a field lineup. Gregorio, the
passenger in the 4Runner who observed the shootings from the backseat of the vehicle,
also identified Mora and Rangel in the field lineup held after the shooting. Lopez told
police during interviews that took place immediately after the shooting that Mora and
Rangel were both outside when the shooting occurred, that they came back inside one
minute after the shots were fired, and that Mora asked Lopez to go to the bedroom where
their daughter was sleeping to prevent the child from waking and seeing her father go to
jail. Although Lopez testified inconsistently with some of those statements, another
party-goer at Lopez’s house that night — Valadez — confirmed that Mora and Rangel
reentered Lopez’s house immediately after the shooting. He also confirmed that both
men carried weapons and were bragging about the shootings.
Moreover, Valadez’s testimony corroborated other evidence. For instance,
Valadez testified that after Mora and Rangel reentered Lopez’s house, one of the men
stated he would have continued firing shots had his weapon not jammed. One of the two
firearms recovered from Mora’s Oldsmobile parked in Lopez’s garage had a bullet
jammed at the breech. Valadez also corroborated Gregorio’s observation that Mora was
shirtless during the shooting.
Ballistics evidence added further corroboration. The Astra found in the
Oldsmobile in Lopez’s garage was determined to be jammed due to a feeding problem.
31
Casings recovered from the crime scene compared against those made during ballistics
testing revealed that three casings were fired from the Astra. The testing also revealed
that an expended cartridge case originated from the Intratec, the other weapon found in
the Oldsmobile. The bullet recovered from Encinas’s body was shot from the Astra and
the bullet recovered from Urrutia’s body was shot from the Intratec.
Mora and Rangel’s primary defense was mistaken identity, and their defense was
refuted by multiple witnesses. Given this overwhelming evidence, there is not a
reasonable probability that, had the jury been instructed that the prosecution and not
simply the Compton Police Department was responsible for the delayed discovery, the
result would have been different. (See Watson, supra, 46 Cal.2d at p. 836.) Likewise,
any federal constitutional error resulting from the jury instruction would have been
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
3. Closing Argument
Mora and Rangel argue that the trial court erred by prohibiting them from arguing
in closing that the discovery delays were intentional. The prosecutor requested that the
court restrict Mora and Rangel from arguing that the delays were intentional, and the
court agreed, stating “[t]here is no evidence of that. They can’t argue intent.” The court
invited further discussion on the subject, but neither Mora nor Rangel addressed the
court’s restriction against arguing during the closing that the delay was intentional.
Neither Mora nor Rangel objected to the court’s ruling on this matter. So they
forfeited the argument that the court erred by prohibiting argument that the delayed
disclosure was intentional. (See People v. Seumanu (2015) 61 Cal. 4th 1293, 1342
[concluding timely objection could have prevented harm alleged to have resulted from
improper closing argument, and failing to object forfeited the issue on appeal].) Even if
not forfeited, the court did not abuse its discretion. The closing argument provides
counsel with opportunity to state “what the evidence shows”; it is restricted to the
32
evidence and reasonable inferences that may be drawn therefrom. (Ibid.) Ample
evidence supported the court’s statement that the delays resulted from negligence,
including the fact that the lead police detective handling the case changed during the
course of the investigation. Because no evidence of intention was presented, the trial
court’s restriction was appropriate. Assuming, arguendo, that the court erred by
prohibiting defense counsel from arguing that intent could be inferred from the discovery
delays, any such error was harmless in light of the overwhelming evidence of guilt.
(People v. Leonard (2007) 40 Cal. 4th 1370, 1407.)
2. Rangel’s Preparation for Cross-Examining Witness Youngblood
Rangel argues that his right to effective confrontation was violated by the court’s
failure to provide sufficient time to review a statement John Youngblood gave to Mora’s
defense team before requiring that Rangel cross-examine Youngblood. There was no
error.
a. Background
On January 28, 1999, the prosecution called John Youngblood to testify.
Youngblood was among the several witnesses whose statements to police had been
belatedly disclosed to the defense. Youngblood was a Castlegate resident who had heard
and observed some of the events in the early morning hours on August 24, 1997.
Youngblood saw two men near the 4Runner parked on Castlegate on the morning of the
shooting, but he did not identify anyone to the police when he was questioned that day.
He later identified Mora from a photo array during an interview with the police.
Before testifying on January 28, 1999, Youngblood provided a six-page
statement to Mora’s investigator purportedly identifying Rangel, not Mora, as one of the
shooters. Following his meeting with Mora’s defense team, Youngblood was called to
testify. Before the prosecution proceeded with direct examination, Rangel requested
additional time to review the six-page statement Youngblood provided to Mora’s
33
investigator. The court denied that request. There was just one copy of the six-page
statement, which Mora’s defense team was reviewing during the prosecution’s direct
examination of Youngblood. Rangel argued that permitting direct examination before
Rangel could review Youngblood’s statement constituted a denial of Rangel’s right to a
fair trial; the court disagreed.
The court explained that Rangel was not legally entitled to a copy of a report
prepared by a codefendant’s investigator. Moreover, the court noted, Rangel’s
investigator had ample opportunity over the course of the preceding week to talk to
Youngblood. Rangel alleged his investigator attempted to speak to Youngblood during
that time, but was unable to do so. Rangel claimed that when his investigator attempted
contact, Youngblood told the investigator that police had told Youngblood not to speak
with a defense investigator because he did not have to do so. In fact, it appears
Youngblood declined to speak with Mora’s investigator, not Rangel’s. It is not clear that
Rangel’s team sought to speak with Youngblood. In any event, as the court noted, “it
does not matter who [Youngblood spoke to]. The witnesses are entitled to speak to
whomever they choose to. They don’t have to talk to anybody, and if they do, that’s
fine.” (See People v. Valdez (2012) 55 Cal. 4th 82, 118 [“although a criminal defendant
may ask witnesses to give interviews, witnesses have no legal obligation to grant that
request; they may decline to speak with a defendant”].) And Rangel insisted that a
defense investigator spoke with Youngblood, and that Youngblood’s identification of
Rangel as a shooter on the day of Youngblood’s testimony was a new development. The
court suggested the parties wait to see how the witness examination would “play out” and
permitted the prosecution to proceed with direct examination.
Youngblood testified to, among other things, observing the 4Runner under strong
lighting in which he could see the back of the man standing at the passenger-side door
and the front of the man standing at the driver’s side of the car. Youngblood identified
34
Rangel as the man he saw standing at the driver’s side. After the shots were fired,
Youngblood saw the back of a “car speeding off, going up the street.”
Following direct examination, Rangel again complained that there had been no
opportunity to review the report given to Mora’s investigator. The court declined to take
a break, but told Rangel’s counsel that she could “stand there and take as much time as
[she] need[s]” to read the report. The court noted again that Rangel had “had ample
opportunity to interview this witness.”14 In a further effort to accommodate Rangel, the
court suggested that Mora cross-examine Youngblood before Rangel. Because Mora was
uncertain whether cross-examination was warranted, the court provided a short time to
allow Mora to make that determination, giving Rangel’s defense team a few additional
moments to read the six-page report. Rangel’s counsel then announced, “I’m going to try
to start” and proceeded to cross-examine Youngblood.
b. Discussion
Rangel argues that his right to effective confrontation was violated by the court’s
failure to provide his counsel time to review Youngblood’s statement before cross-
examining the witness. A criminal defendant possesses a fundamental right to confront
the witnesses against him. (U.S. Const., 5th, 6th, 8th, 14th Amends.; Cal. Const., art. I,
§§ 7, 15, 24; § 686; Pointer v. Texas (1965) 380 U.S. 400, 403.) Cross-examination is a
cornerstone of that fundamental right. (Pointer, at p. 404.) Rangel does not argue that he
was entirely denied the right to cross-examine Youngblood, but that his attorney’s
14 At this point in the sidebar with the bench, Rangel shifted strategies and told the
court Youngblood’s rap sheet should be run to determine whether he had prior felony
convictions. The court declined to inconvenience the witness further by having the rap
sheet run before completing his testimony, although the court and parties agreed that
Youngblood would remain on call should the need arise to question him further regarding
any prior felonies. The prosecution also agreed to stipulate to any felony conviction in
Youngblood’s past. Rangel argued, with respect to the court’s failure to provide a
continuance to review the six-page report and run Youngblood’s rap sheet before cross-
examination that “this is a denial of Mr. Rangel’s right to have a fair trial, due process of
law and equal protection.” The court did not directly respond to this statement.
35
inadequate preparation to cross-examine rendered that examination constitutionally
deficient. He contends the right to confrontation necessarily means that a defendant
possesses the right to “effective” cross examination (Davis v. Alaska (1974) 415 U.S.
308, 318 (Davis)), and insufficient preparation through no fault of his counsel’s rendered
the cross-examination ineffective. Rangel is mistaken.
Here, Rangel did have an opportunity to review the six-page witness statement
prior to cross-examining Youngblood. Because the statement had been prepared shortly
before Youngblood’s testimony, neither the prosecutor nor Mora had much time to
review the statement. Although the court did not grant a recess, it ensured that Rangel
had sufficient time to read the statement before beginning cross-examination. The court
initially allowed Rangel time before beginning cross-examination to read the statement,
and later granted a short break to allow Mora time to review notes and consider whether
to conduct cross-examination first, during which break Rangel was able to thoroughly
review the statement. During the break and before Rangel could avail himself of
additional time to review the statement, as he could have taken if he allowed Mora to
proceed with cross-examination, Rangel’s counsel announced she was “going to try to
start,” after which the cross-examination began. Rangel’s argument that there was
insufficient time to review the statement, when he took all the time he needed,
accordingly fails.
Nor do we see a defect in the cross-examination itself. The confrontation clause
guarantees a meaningful but limited right –– the opportunity to engage in effective cross-
examination, not necessarily cross-examination that satisfies the defendant in any
conceivable respect. (People v. Gonzales (2012) 54 Cal. 4th 1234, 1265.) The United
States Supreme Court has distinguished between sufficiently effective cross-examination
and cross-examination as effective as the defendant wishes. (United States v. Owens
(1988) 484 U.S. 554, 559.) No confrontation issue arises when, for example, the defense
is able to cross-examine the witness about bias, inattentiveness, or faulty memory
36
— even if an expert testifies regarding his opinion but is unable to recall the reason he
formed that opinion. (Ibid.)
In Davis, the high court examined what constitutes effective cross-examination. A
witness on probation for residential burglary under a juvenile court adjudication claimed
he observed two men standing by a car on his property where a stolen safe from a bar was
later found. (Davis, supra, 415 U.S. at pp. 309–310.) Although he was a key prosecution
witness, the defense was not permitted to inquire into his potential bias by cross-
examining him as to his juvenile offense. (Id. at p. 311.) The defense attempted to probe
the witness’s bias, but was unable to challenge the witness’s statement that he had never
been questioned by law enforcement. (Id. at pp. 313–314.) The high court held that the
state’s “interest in protecting the confidentiality of a juvenile offender’s record cannot
require yielding of so vital a constitutional right as the effective cross-examination for
bias of an adverse witness.” (Id. at p. 320.)
Unlike the instant case, the defendant in Davis had scant opportunity to probe the
witness’s potential for bias. (Davis, supra, 415 U.S. at p. 318.) Here, Rangel had ample
opportunity to cross-examine Youngblood, and used it. The cross-examination was nearly
twice as long as the direct examination. Rangel questioned Youngblood in depth about
the six-page statement Youngblood made to Mora’s investigator. Rangel also probed
Youngblood’s prior identification of Mora and Youngblood’s inconsistent subsequent
identification of Rangel.
Only when Rangel’s examination began covering repetitive ground did the court
intervene, suggesting counsel focus questions more narrowly. Rangel then complained to
the court about the insufficient time to review Youngblood’s statement, and reiterates that
concern on appeal. Yet Rangel points to no authority — nor have we found any —
suggesting that a defendant is entitled to as much time as he would like to review a
witness’s statement made to a codefendant’s investigator. To the contrary, we have held
that so long as a defendant is afforded an opportunity for effective cross-examination, no
37
error results from a cross-examination that does not fully live up to the defendant’s
expectations. (People v. Gonzales, supra, 54 Cal.4th at p. 1265.) Rangel’s lengthy and
thorough cross-examination of Youngblood was apparently effective, and Rangel does
not contend there remained any unasked or unanswered query. Rather, Rangel asserts
that there is a delta between announcing readiness to “try to start” the cross-examination
and announcing readiness to actually start the cross-examination. He claims he indicated
only the former, which was not indicative of actual readiness. Of course, Rangel could
have, and declined to, take more time to review the statement before so announcing. In
any event, the difference between the statements — if there is one — is certainly not
enough to find the court erred by failing to grant a longer recess. The cross-examination
began when Rangel decided it should, and Rangel’s inability to identify any avenue of
inquiry that was not taken suggests it was effective. Accordingly, Rangel’s right to
confront Youngblood was not violated.
3. Playing Lourdes Lopez’s Unredacted Audio Recordings
a. Background
Mora and Rangel contend the trial court abused its discretion by permitting the
prosecution to play unredacted audio tape recordings (“tapes”) of Lopez’s interview with
police. Lopez’s trial testimony differed in significant respects from her statements to
police made in the immediate aftermath of the shooting. Specifically, in her taped
interview, Lopez stated that she saw Mora and Rangel run outside prior to the shooting,
after which she heard gunshots and saw the two men run back into her house. She also
told police that she saw Mora move his car into the garage and park her car behind his.
Finally, she told police that Mora asked her to go to the bedroom “cause I don’t want my
daughter [to] see me go to jail.” Although she was cross-examined regarding those
differences, Lopez testified that officers stopped and started the recording of the
interview several times to call her names and threaten to remove her daughter from her
38
care if she did not make statements inculpating Mora and Rangel. She also testified that
she was tired, hungry, and caring for her uncomfortable child during the interviews.
The prosecution sought to play Lopez’s two tape-recorded statements in order to
impeach her testimony about her level of discomfort during the interviews, impeach her
testimony that the recording was stopped and started, or refresh her recollection as to
what point in the interviews the taping was stopped and restarted. Mora and Rangel
objected to the tapes being played for the jury because Lopez referenced information
about gang membership during the tapes, and the jury was not voir dired regarding gang
affiliation issues. In fact, the interview contains just three references to gangs. Only one
reference relates to Mora, and none to Rangel. In the single reference to Mora, Lopez
responded to a question, “what gang [unintelligible],” with the words “Uhm, Joker,”
indicating Mora. Lopez was then asked another unintelligible question and responded,
“uhm, my friends over there.” The court concluded the tape could be played because any
linkage to Mora’s gang affiliation the jury could discern from that exchange could be
resolved via instruction.
Mora and Rangel also objected to the tapes’ introduction because they contained
hearsay statements and were unduly prejudicial. Specifically, Mora and Rangel alleged
that Lopez disclosed that Mora had suffered past incarceration and that she suggested that
Mora had a propensity toward violence. The court clarified that the portion of the tape
referring to Mora’s propensity toward violence had already been read to the jury in the
course of Lopez’s cross-examination, and that it was less sensible to try and exclude
portions of the tape in light of the overall purpose of determining whether and when the
taping was stopped and restarted.
The trial court permitted the prosecution to play the tapes. The court also
provided a transcript of the tapes to the jurors to follow along as they listened, although
the transcript was not admitted into evidence or provided to the jury for deliberation. The
39
court instructed Lopez to note any instance of the tape being stopped and started. She
was unable to do so.
b. Discussion
Mora and Rangel contend that when the prosecution played Lopez’s taped
interviews with the police, the trial court abused its discretion in violation of Evidence
Code section 352. (See People v. Cole (2004) 33 Cal. 4th 1158, 1198 [“We review the
trial court’s rulings on relevance and admission or exclusion of evidence under Evidence
Code section 352 . . . for abuse of discretion”].) Relevant evidence may be excluded if a
trial court determines that its probative value is substantially outweighed by the
probability that its admission will cause prejudice, delay, confusion, or will mislead the
jury. (Evid. Code, § 352.) Mora and Rangel argue that the taped interviews were
irrelevant because they lacked evidentiary value with regard to proof of guilt or
innocence. Mora and Rangel’s formulation of relevance is artificially narrow.
“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code,
§ 210, italics added.)
Here, the tapes were relevant to a key witness’s credibility and allegation that her
highly inculpatory statements to police made in the immediate aftermath of the shooting
were coerced. (See, e.g., Evid. Code, § 1235 [hearsay rule does not exclude prior
statements inconsistent with trial testimony].) “We will not disturb a trial court’s
exercise of discretion under Evidence Code section 352 ‘ “except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.” ’ ” (People v. Jones (1998) 17 Cal. 4th 279,
304.) The trial court’s reasonable admission of the taped statements was none of those
things.
40
Mora and Rangel contend the taped statements were highly prejudicial because
they contained hearsay statements referencing, among other things, Mora’s propensity for
violence, gang association, and Mora’s previous incarceration. The court’s determination
that the probative value outweighed any prejudice resulting from the statements was not
arbitrary. Indeed, the parties engaged in a lengthy colloquy about the tapes’ admission,
and the court admonished the jury to disregard any hearsay the taped statements might
contain and consider the tapes only in connection with Lopez’s allegations regarding
coercion. While courts must tread carefully with regard to propensity for violence and
gang evidence in light of the inherently prejudicial nature of such information
(People v. Williams (1997) 16 Cal. 4th 153, 193), the court’s admission of the taped
statements here, with their minimal reference to gangs and little tying gang participation
to Mora, Rangel, or the crimes at issue, was not an abuse of discretion. (People v. Jones,
supra, 17 Cal.4th at p. 304.) Because we find no error, we do not address prejudice,
although the overwhelming evidence of guilt suggests none would attach even if the
court’s admission of the statements was erroneous. (See Watson, supra, 46 Cal.2d at
p. 836; People v. Smith (2015) 61 Cal. 4th 18, 52.)
4. Juror No. 7 Was Not Dismissed
Rangel argues that the trial court failed to conduct an adequate inquiry and failed
to remove Juror No. 7 in violation of Rangel’s rights to due process and a fair trial, trial
by an impartial jury, and to a reliable capital and penalty determination. (See U.S.
Const., 5th, 6th, 8th, 14th Amends.) Specifically, Rangel alleges the trial court erred by
failing to adequately question Juror No. 7. Rangel further argues that the trial court’s
failure to dismiss Juror No. 7 after the juror learned Mora or Rangel might have rejected
a plea bargain was prejudicial. We hold the trial court’s examination of Juror No. 7 was
adequate and the court did not err by declining to dismiss Juror No. 7 because the juror’s
41
exposure to a potential plea was not per se erroneous. Even if error occurred, it was not
prejudicial.
a. Background
On January 11, 1999, before voir dire, the woman who became Juror No. 7 spoke
with a woman in the court cafeteria that she later learned was the mother of Mora or
Rangel. The mother asked if she could take the seat opposite Juror No. 7 in the cafeteria
and Juror No. 7 replied affirmatively. Juror No. 7 was wearing a juror badge. The
mother offered Juror No. 7 a cookie, and Juror No. 7 refused the offer. The mother told
Juror No. 7 that she was at the courthouse every day for her son’s trial, and confided that
“she was sure she was going to lose [her son] because he had been offered a plea of 25 to
life,” and “she was going to lose out because murder charges—well, charges had been set
up and they wanted to give [her son] the death penalty.” The mother also confided to
Juror No. 7 that she had been looking for a job, but was now unable to continue that
search until “this whole ordeal” concluded. The mother did not identify herself or her
son to Juror No. 7. Juror No. 7 did not encourage the conversation.
Two days later, after the jury was empaneled and the second day of evidence
presentation was underway, Juror No. 7 recognized the mother in the courtroom as the
woman who had spoken with her in the cafeteria earlier that week. Juror No. 7 realized
the woman must be the mother of one of the defendants. She immediately drew the issue
to the court’s attention. Juror No. 7 had not raised the issue earlier because she had not
previously been aware that the woman with whom she conversed was connected to the
trial in which she was a juror. The court and counsel questioned Juror No. 7 out of the
presence of the jury. Juror No. 7 stated that the contact she had had with the mother
would not impair her ability to evaluate the evidence during the guilt phase to determine
whether the People proved the case beyond a reasonable doubt. Juror No. 7 likewise
42
attested that knowing the mother was related to one of the defendants would not influence
Juror No. 7 in any way during the penalty phase of the proceedings.
After this colloquy, the court spoke with counsel out of Juror No. 7’s presence.
The prosecution noted that there never had been an offer of 25-to-life on the table. The
court clarified that the issue is not whether an offer had been made, or an agreement
reached, but whether the juror could sit. Rangel requested that the juror be excused
because, whether or not an offer had been made, the juror believed an offer was declined.
Rangel argued that the existence of an offer suggested that Mora, Rangel, or both, had
committed the crime for which they stood accused and the juror might have believed the
offer should have been accepted. This was particularly true for Juror No. 7, Rangel
argued, because her jury questionnaire revealed that she believed that once an individual
was found guilty of a capital offense and sentenced to death, that sentence should be
“carried out” lest too “much time [be] wasted on the criminals.”
Mora did not ask that the juror be removed, but requested that audience members
be instructed to refrain from making statements about the case. Rangel echoed the
request that family members be admonished “not to have contacts with anybody.”
The court denied Rangel’s request to excuse Juror No. 7, concluding that the juror
properly addressed the issue at the first available opportunity and was “adamant about her
ability to set [the conversation] aside.” The court noted that “whether there was an offer
or not isn’t anything anyone can consider.” The court noted a death penalty case raised
less concern than a case in which the potential sanction would be unknown by the jury.
The court advised all audience members in the courtroom, whether they were there
to support the victims or defendants, not to speak to any member of the empaneled jury
or the alternates. Finally, the court suggested audience members spread the word to their
friends and relatives to refrain from contact with the jury. The court warned that if an
audience member was found to have spoken with a juror, that person would be excused
from “attending or participating in this proceeding.”
43
b. Discussion
Each criminal defendant is entitled to an impartial jury. (People v. Mickel (2016)
2 Cal.5th 181, 215, citing People v. Earp (1999) 20 Cal. 4th 826, 852.) That entitlement
imposes upon each juror a duty to maintain impartiality throughout the trial.
(People v. Nesler (1997) 16 Cal. 4th 561, 578.) The loss of impartiality requires dismissal
of the juror. (Ibid.) Loss of impartiality may result from a juror’s receipt of information
about the case that was not part of the evidence received at trial. (Ibid.) A jury must be
“capable and willing to decide the case solely on the evidence before it,” lest a due
process violation occur. (Smith v. Phillips (1982) 455 U.S. 209, 217.)
Rangel argues his right to due process was violated by the court’s inadequate voir
dire following Juror No. 7’s revelation that she spoke with Mora or Rangel’s mother.
“The law is clear . . . that the court must investigate reports of juror misconduct to
determine whether cause exists to replace an offending juror with a substitute.”
(People v. Keenan (1988) 46 Cal. 3d 478, 532.) If a juror’s ability to perform his or her
duty is called into question, a court is expected to hold a hearing; failure to conduct a
sufficient hearing constitutes an abuse of discretion. (Ibid., citing People v. Burgener
(1986) 41 Cal. 3d 505, 519–520.) Following a hearing, the trial court may discharge a
juror if it finds that the juror is unable to perform his or her duty. (§ 1089.)
We conclude the trial court’s hearing concerning Juror No. 7’s unwitting contact
with the mother was sufficient. Consistent with its obligation, the trial court immediately
investigated Juror No. 7’s report that she believed she had contact with a party’s relative.
Following a thorough examination by the court and parties, the court concluded that Juror
No. 7 could perform her duty as a juror and declined to dismiss her.
In claiming the court’s examination was inadequate, Rangel alleges only that the
court failed to assess the effect, if any, of Juror No. 7’s conversation with the mother on
the other jurors. We note at the outset that Rangel was given an opportunity to question
Juror No. 7 after the court completed its inquiry, and Rangel failed to raise any questions
44
regarding the impact on other jurors of Juror No. 7’s contact with the mother. Rangel did
not ask if Juror No. 7 discussed the encounter with any other juror. Assuming Rangel’s
argument is not forfeited via his counsel’s own failure to examine Juror No. 7 as he now
claims was compelled, we nevertheless conclude that the trial court did not err by
declining to examine the effect, if any, of Juror No. 7’s conversation with the mother on
other jurors.
A court must hold a hearing if a juror’s ability to perform his or her duty is called
into question. (People v. Keenan, supra, 46 Cal.3d at p. 532.) The court did just that
here. Only Juror No. 7’s ability to objectively serve as a juror was called into question,
and the person who raised the question was Juror No. 7 herself. No other juror’s ability
to impartially serve was in issue. Rangel does not allege that the court was deficient
because it should have questioned some or all of the other jurors; of course, the court
would have been obliged to do so if any other juror’s ability to perform his or her duty
had been in doubt. (See ibid.) The trial court adequately probed and resolved the
question of whether Juror No. 7 could continue to impartiality serve. Indeed, the court
commended Juror No. 7’s prompt efforts to communicate the potential issue to the court
and see it resolved. The court was not obliged to evaluate whether Juror No. 7’s
conversation affected the other jurors when there was no suspicion that any other juror
became unable to impartially serve (or even that another juror became aware of Juror
No. 7’s conversation with the mother). Accordingly, the court’s inquiry into Juror
No. 7’s ability to impartially perform her duty was adequate, and no error occurred. Even
if error occurred, it would not have been prejudicial because there is no substantial
likelihood that Juror No. 7 was actually biased. (See In re Hamilton (1999) 20 Cal. 4th
273, 294–296.)
Rangel also alleges the court erred when it failed to dismiss Juror No. 7. The juror
should have been dismissed, contends Rangel, because what was said to her was outside
the scope of the evidence presented at trial and constituted error in violation of Rangel’s
45
right to due process. If “ ‘extraneous material’ ” presented to a juror, “ ‘judged
objectively, is inherently and substantially likely to have influenced the juror,’ ” bias may
be found. (People v. Danks (2004) 32 Cal. 4th 269, 303.) Rangel contends that Juror
No. 7 was actually biased because she possessed unforgettable information that she was
not permitted to consider as a matter of law. That is, Rangel asserts Juror No. 7 knew
that a plea agreement was rejected, making Juror No. 7 more likely to infer that Rangel
was guilty, and leaving “an inerasable impression” that Rangel, though guilty, decided to
take his chances with trial, and should therefore suffer the death penalty if found guilty.
(People v. Lambright (1964) 61 Cal. 2d 482, 486; see id. at p. 487.) The refusal of a
guilty plea, of course, is not necessarily indicative of culpability and may instead be
consistent with a defendant’s belief in his innocence or reduced culpability.
Receipt of extraneous information is not “ ‘misconduct’ in the pejorative sense,”
but it “may require similar examination for probable prejudice.” (In re Hamilton, supra,
20 Cal.4th at p. 295.) If a sitting juror communicates with a non-juror, there arises “a
rebuttable ‘presumption’ of prejudice.” (Ibid.) The presumption can be rebutted by
demonstrating there is “no substantial likelihood that one or more jurors were actually
biased against the defendant.” (Id. at p. 296.) A substantial likelihood of bias may be
found where the material was not inherently prejudicial but the totality of the
circumstances suggest actual bias arose. (People v. Danks, supra, 32 Cal.4th at p. 303.)
Precisely what constitutes “ ‘actual bias’ ” of a juror may vary somewhat
depending on the particular circumstances of the case. (People v. Nesler, supra,
16 Cal.4th at p. 580.) The United States Supreme Court has explained that bias, or
impartiality, is a state of mind rather some specific course of conduct. (United States
v. Wood (1936) 299 U.S. 123, 145–146.) In assessing whether that state of mind is
present or not, the law makes room for a juror’s humanity, understanding that a juror may
not “be totally ignorant of the facts and issues involved.” (Irvin v. Dowd (1961) 366
U.S. 717, 722; see also People v. Nesler, supra, 16 Cal.4th at p. 580.) If a juror is able to
46
set aside impressions and opinions to render a verdict based on the evidence presented in
court, the juror is impartial. (Smith v. Phillips, supra, 455 U.S. at p. 217.) If, on the other
hand, the juror forms an opinion so strong that the court is of the belief it cannot be set
aside even if the juror does not express it, the juror will be adjudged biased.
(Irvin v. Dowd, supra, 366 U.S. at p. 723; People v. Nesler, supra, 16 Cal.4th at p. 580.)
The evaluation of bias presents a mixed question of law and fact on appeal, the resolution
of which obliges this court to review the trial court’s examination and the juror’s
responses. (Ibid.)
Here, Juror No. 7 attested to her ability to impartially evaluate the evidence at the
guilt phase of the trial. She likewise was certain that what she learned from the mother
would not influence her penalty phase decision-making. Noting Juror No. 7’s insistence
that she could set aside what she was told by one of the defendants’ relatives, the court
found no reason to remove the juror. Assuming that Juror No. 7’s communication with a
nonjuror — even though it occurred before Juror No. 7 was empaneled — created a
rebuttable presumption of prejudice, there is no substantial likelihood that Juror No. 7
was actually biased against Rangel.
Juror No. 7’s responses to the trial court’s examination revealed no bias, and the
trial court found none. A review of the complete trial record reveals no further conduct
on Juror No. 7’s part suggesting latent bias. (Cf. People v. Nesler, supra, 16 Cal.4th at
p. 583 [juror repeatedly disclosed outside information about the defendant during
deliberation when she disagreed with fellow jurors, suggesting bias].) Juror No. 7 stated
she could set aside what she had been told and she proceeded to do so. Accordingly, the
trial court did not err by declining to remove Juror No. 7.
47
5. Accessory After the Fact Instruction
a. Background
At the conclusion of the guilt phase, Mora requested that the jury be instructed
consistent with section 32, accessory after the fact.15 Mora contended that substantial
evidence supported his defense theory that Jade Gallegos, not Mora, was one of the
shooters. In support of this theory, Mora asserted that one of the witnesses, Sheila
Creswell — who lived on Castlegate across the street from Gallegos and who saw
Gallegos daily — witnessed Gallegos and Rangel running away from the 4Runner after
she heard shots fired on the morning of August 24, 1997.
The prosecutor opposed Mora’s proposed instruction. In doing so, the People
argued that several witnesses had identified Mora and no evidence supported Mora’s
theory that he served only as an accessory. The court noted that the instruction Mora
requested, accessory after the fact, was a lesser related offense, not a lesser included
offense. Mora argued the instruction was warranted because the jury could conclude that
Gallegos was a shooter and Mora simply moved the cars after the shooting. After taking
additional time to research and consider Mora’s request, the trial court denied the
requested instruction, explaining that it was not warranted under the facts of the case.
Mora’s counsel asked if she was permitted to argue that Mora was not guilty because he
simply moved the cars, to which the court responded, “of course.” The court clarified
that Mora was charged only with murder and attempted robbery, and the jury was free to
conclude that Mora was not guilty of either of the charged offenses. Mora’s counsel
responded, “thank you,” and the discussion concerning this instruction concluded.
15 Section 32 provides, “Every person who, after a felony has been committed,
harbors, conceals or aids a principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment, having knowledge that said
principal has committed such felony or has been charged with such felony or convicted
thereof, is an accessory to such felony.”
48
b. Discussion
The parties agree that accessory after the fact is, as the court noted, a lesser related
offense to murder, not a lesser included offense. (People v. Majors (1998) 18 Cal. 4th
385, 408.) A trial court is not obliged to instruct a jury on lesser related offenses even if
requested, as Mora concedes. (People v. Birks (1998) 19 Cal. 4th 108, 112–113 (Birks).)
Mora argues that Birks is distinguishable from the instant case in two respects. First,
Mora contends that the failure to instruct here unfairly weights the instructions given in
the prosecution’s favor, which was not the case in Birks. (Ibid.) Second, Mora alleges,
the trial court’s refusal to give the instruction violated his constitutional rights to present
a defense, to due process, to a fair trial by jury, and to a reliable guilt determination in a
capital trial.
Regarding his first point, Mora cites no authority –– nor does he otherwise make a
persuasive argument –– supporting the conclusion that unfair weighting of instructions in
favor of the prosecution permits a trial court to disregard Birks. Instead, Mora argues that
due process commands “a two-way street” between the prosecution and defense, which
extends to jury instructions. (Wardius v. Oregon (1973) 412 U.S. 470, 475.) Here,
because the prosecution requested and the trial court agreed to give CALJIC No. 2.03
regarding consciousness of guilt, Mora argues that the jury instructions favored the
prosecution’s theory in violation of due process principles. Again, Mora cites no
authority suggesting there must be parity, absolute or otherwise, in giving instructions
requested by or favoring a party. Mora has presented no reason to disregard Birks;
accordingly, we conclude a trial court remains free to decline to instruct the jury on a
lesser related offense. (Birks, supra, 19 Cal.4th at pp. 112–113.)
Mora asserts that CALJIC No. 2.03 erroneously permitted the jury to consider his
false statements, if any, to the extent they demonstrated his consciousness of guilt of the
charged crimes of murder and robbery, while precluding the jury from determining his
guilt of accessory after the fact. Mora is mistaken. We have previously held that
49
declining to instruct on accessory after the fact is “not essential to [a] defendant’s
defense. Through [a] defendant’s testimony and defense counsel’s closing argument, the
jury [may be] fully apprised of the defense theories that it was [someone else] rather than
[the] defendant who caused [the] fatal injuries.” (People v. Whisenhunt (2008) 44 Cal. 4th
174, 213 (Whisenhunt).)16 As in Whisenhunt, Mora was given an opportunity to, and did,
argue that Jade Gallegos was the shooter, and that Mora made false statements to protect
Gallegos. (44 Cal.4th at p. 213.) Thus, the jury was able to consider whether Mora was
an accessory after the fact. Mora argues that he was entitled to present instructions on his
theory of defense, and the trial court’s refusal to give an accessory after the fact
instruction erroneously deprived him of that right. We considered and rejected this claim
in Whisenhunt and Mora presents no reason to do otherwise here. (Id. at pp. 212–213.)
Accordingly, we conclude the trial court did not err by declining to instruct the jury on
accessory after the fact.
6. CALJIC No. 2.03 Instruction on Consciousness of Guilt
Mora argues that the consciousness of guilt instruction, CALJIC No. 2.03,17 was
unnecessary and argumentative, and claimed it permitted the jury to draw irrational and
unjust inferences concerning Mora’s guilt. We have consistently rejected similar claims.
(See People v. Covarrubias (2016) 1 Cal.5th 838, 922 (Covarrubias) [rejecting challenge
16 Although not discussed in conjunction with the trial court’s denial of a requested
accessory after the fact instruction, the trial court in Whisenhunt also instructed the jury
pursuant to CALJIC No. 2.03. We rejected the argument in that appeal that CALJIC
No. 2.03 was impermissibly argumentative or allowed the jury to draw irrational
inferences. (Whisenhunt, supra, 44 Cal.4th at pp. 221–222.)
17 CALJIC No. 2.03, as given regarding Mora only, stated, “If you find that before
this trial a defendant made a willfully false or deliberately misleading statement
concerning the crimes for which he is now being tried, you may consider that statement
as a circumstance tending to prove a consciousness of guilt. However, that conduct is not
sufficient by itself to prove guilt, and its weight and significance, if any, are for you to
decide.”
50
to CALJIC No. 2.03 claiming instruction was unnecessary, argumentative, circular, and
permitted the jury to draw irrational inferences]; see also People v. Holloway (2004)
33 Cal. 4th 96, 142 [jurors likely to indulge inference of consciousness of guilt based
upon false statements even absent instruction].)
Mora contends the instruction caused an irrational and unjust inference of guilt
because it focused the jury’s attention only upon an inculpatory interpretation of the facts,
rather than permitting the jury to infer that Mora was merely an accessory after the fact.
There is no reason to presume the instruction caused such a focus; as we explained above,
the jury can be apprised of the defense theory that another person committed the crime
via testimony and closing argument, and need not be given a specific instruction about
that theory. (See Whisenhunt, supra, 44 Cal.4th at p. 213.) As we have repeatedly
concluded, an instruction concerning consciousness of guilt does not allow the jury to
draw irrational inferences regarding the evidence. (See People v. Hartsch (2010)
49 Cal. 4th 472, 505.)
7. Attempted Robbery Sufficiency of the Evidence
Mora and Rangel contend there was insufficient evidence to have convicted them
of attempted robbery. We discern sufficiency by inquiring whether evidence was
presented from which a reasonable trier of fact could conclude, beyond a reasonable
doubt, that the prosecution sustained its burden of proof. (People v. Boyer (2006)
38 Cal. 4th 412, 479.) Although we assess whether the evidence is inherently credible
and of solid value, we must also view the evidence in the light most favorable to the jury
verdict and presume the existence of every fact that the jury could reasonably have
deduced from that evidence. (Id. at p. 480.)
Attempted robbery requires “a specific intent to commit robbery and . . . a direct
but ineffectual act toward the commission of the crime.” (People v. Lindberg (2008)
45 Cal. 4th 1, 27.) Robbery is defined as “the felonious taking of personal property in the
51
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) Robbery requires the “specific intent
to permanently deprive” the victim of his or her property. (People v. Young (2005)
34 Cal. 4th 1149, 1176; id. at p. 1177.)
Mora claims the sole evidence presented to the trier of fact regarding attempted
robbery was Gregorio’s testimony that both Rangel and Mora asked for the victims’
wallets prior to shooting them; Rangel argues no evidence supported the theory that he or
Mora intended to take anything from the victims. Gregorio testified that Rangel pointed
a gun at Encinas’s face while saying, “Check yourself. Check yourself. Give me your
wallet.” Before he was shot, Encinas had time to briefly verbally respond, “come on,
man,” and to reach for his wallet. On the other side of the car, at the moment that
Encinas reached for his wallet and Rangel shot him, Mora asked Urrutia for Urrutia’s
wallet. Urrutia told Mora that he had no money but would give Mora his wallet anyway.
Immediately thereafter, “within seconds,” Mora shot Urrutia. Officer Raymond Brown,
one of the first responders to Castlegate, noted that two wallets were visible in the
4Runner. Encinas’s wallet was in the center console between Encinas and Urrutia, and
Urrutia’s wallet was in the passenger seat.
Mora and Rangel argue the evidence was insufficient to demonstrate their intent to
permanently deprive the victims of their property. Reviewing the evidence in the light
most favorable to the verdict, as we must, we conclude — narrowly — that the record
discloses solid, credible, and reasonable evidence of Mora and Rangel’s guilt of
attempted robbery and of felony murder based on attempted robbery. (People v. Boyer,
supra, 38 Cal.4th at p. 480.) Credible testimony was presented that Mora and Rangel
asked the victims for their wallets. As Mora acknowledges, this evidence alone is
sufficient to convict a person of attempted robbery “in the appropriate case.” Mora
argues more evidence was needed here, and no more evidence was adduced. But that is
not true. Encinas and Urrutia each were permitted to take steps to comply with the
52
requests for their wallets. Each verbally responded to the requests for their wallets and
moved their bodies in an effort to retrieve their wallets to hand to Mora and Rangel
before being shot. The wallets were found in open and apparent locations in the
4Runner. From these facts a reasonable jury could conclude that Mora and Rangel
intended to deprive the victims of their wallets.
Some evidence cuts in the other direction. The wallets were not taken from the
victims. Before asking the victims for their wallets, Rangel asked Encinas whether he
wanted to “go to sleep,” an exchange that seems unrelated to a permanent deprivation of
property. Ultimately, though, whether Rangel and Mora’s demands for the victims’
wallets alone would have been sufficient to affirm the jury’s verdict is immaterial. The
jury based its verdict upon all of the evidence, much of which supported the
prosecution’s theory. In addition to the evidence that defendants asked for the victims’
wallets and permitted the victims to take steps acquiescing to their demands, the
prosecutor theorized that the murders could have been carried out following the
attempted robbery because doing so would guarantee the victims could not give chase to
their assailants. Viewing the evidence in the light most favorable to the verdict, we
conclude it suffices to demonstrate that Mora and Rangel intended to permanently
deprive the victims of their property and each took an overt step toward completing that
goal.
Mora urges us to conclude otherwise. He argues that because shots were fired so
quickly after defendants asked for the wallets and neither Mora nor Rangel “made any
attempt to take the victims’ wallets or anything else from either of the victims or their
vehicle” after the shooting, they had no intent to permanently deprive the victims of their
property. Even if the evidence supported Mora’s theory, we are not free to reform the
verdict simply because another theory is plausible. (People v. Jackson (2016) 1 Cal.5th
269, 345 [“ ‘If the circumstances reasonably justify the trier of fact’s findings, reversal of
the judgment is not warranted simply because the circumstances might also reasonably be
53
reconciled with a contrary finding’ ”].) Whether a reasonable trier of fact could reach a
different conclusion based upon the same facts does not mean the verdict is not supported
by sufficient evidence. (People v. Farnam (2002) 28 Cal. 4th 107, 143.)
Even if we find sufficient evidence to support the attempted robbery convictions,
Mora and Rangel separately urge us to conclude that the robbery-murder special
circumstance must be vacated because there was insufficient evidence to establish that
Encinas and Urrutia were killed to advance the independent felonious purpose of robbery.
As the opinion of our concurring and dissenting colleague highlights, this is a closer
question. (People v. Green (1980) 27 Cal. 3d 1, 61 (Green).) In Green, we explained that
the robbery-murder special circumstance must satisfy the legislative goal of all special
circumstances, “provid[ing] a rational basis for distinguishing between those murderers
who deserve to be considered for the death penalty and those who do not,” and it cannot
do so if “the defendant’s intent is not to steal but to kill and the robbery is merely
incidental to the murder.” (Ibid.; §190.2, subd. (a)(17)(A).) That is, if the murder
furthers the robbery or attempted robbery, the special circumstance is satisfied. But, if
the robbery or attempted robbery simply furthers or facilitates the murder, it is not,
because the robbery’s “sole object is to facilitate or conceal the primary crime.” (Green,
supra, 27 Cal.3d at p. 61.)
We conclude that sufficient evidence supports the jury’s true finding of the
robbery-murder special circumstance. The evidence suggests the robbery was committed
for reasons separate and independent from the murder. The concurring and dissenting
opinion points to evidence indicating the primary focus of the encounter between
defendants and victims was murder, and certainly there is support in the record for this
interpretation. Rangel asked Encinas if he wanted to “go to sleep,” after which Mora and
Rangel followed the victims to their car. Once there, defendants asked the victims for
their wallets. Urrutia and Encinas demurred, with one indicating he did not have much
54
money but would provide his wallet anyway, and the other saying “come on, man” while
reaching for his wallet. Moments later, both men were shot.
Yet the record also supports the jury’s verdict, in which the robbery-murder
special circumstance was found true. Both of the defendants asked the victims for their
wallets before they were shot. The prosecutor argued Mora and Rangel shot Encinas and
Urrutia to avoid detection, and planned to reach into the car at some later point to take the
wallets they had demanded from their victims. The evidence supports this theory as well,
suggesting the attempted robbery occurred for reasons other than to “facilitate or
conceal” the eventual murders. (Green, supra, 27 Cal.3d at p. 61.) Defendants’ requests
for the victims’ wallets was inconsistent with the dialogue that had preceded it. After
Rangel had asked if Encinas wished to “go to sleep,” defendants followed the victims to
their car. The conversation then shifted to the wallets. Defendants even provided their
victims with some time to respond to the demand for their wallets, engaging in a short
dialogue with them about whether the wallets contained money. Defendants allowed
Encinas and Urrutia time to remove their wallets and place them in open areas of the
4Runner before finally shooting them. This course of events does not ultimately suggest
the attempted robbery was committed as a pretext to conceal the primary crime, murder.
(Ibid.)
In Green, the facts paint a more apparent picture of robbery committed to conceal
murder. (Green, supra, 27 Cal.3d at pp. 51–62.) Before shooting the victim, the
defendant instructed her to remove all of her clothing. (Green, supra, 27 Cal.3d at p. 16.)
After shooting the victim, the defendant took the victim’s rings and purse, and removed
cash from the victim’s purse, commenting “ ‘[t]his would have been a hell of a robbery,
huh?’ ” (Ibid.) The victim’s belongings were later burned or disposed of to avoid
identification. (Id. at pp. 17, 61–62.) The jury found the defendant guilty of the special
circumstance of robbery murder and we reversed. (Id. at p. 62.) We concluded that
whether the items were taken before or after the victim was killed was of little relevance
55
when, as even the Attorney General conceded, the defendant’s primary objective was to
remove items from the victim to prevent her subsequent identification. (Ibid.)
We likewise reversed a robbery-murder special-circumstance true finding when
the only evidence in support thereof was the fact that the victim was shot and killed in a
location where robberies had previously occurred. (People v. Morris (1988) 46 Cal. 3d 1,
22.) There, a witness observed the shooting death of a nude victim at a Long Beach
bathhouse and observed the shooter flee the scene into a car. (Ibid.) On such scant
evidence, we could not “say the prosecution sustained its burden of proving beyond a
reasonable doubt the killing occurred ‘during the commission of a robbery.’ ” (Ibid.)
This case is not so stark. The question is certainly close, but there is a great deal
more support for the jury’s verdict here than there was in Green or People v. Morris. The
concurring and dissenting opinion concludes otherwise, arguing “[t]he facts do not
support a finding that defendants murdered their victims ‘in order to advance’ a robbery.”
(Conc. & dis. opn., post, at p. 1, quoting Green, supra, 27 Cal.3d at p. 61.) On this point
we disagree. The separate opinion highlights some of the facts mentioned above — that
defendants shot the victims before the victims fully complied with the demand for their
wallets, and fled without the wallets and without an abortive event occurring that would
have prevented defendants from taking the wallets. From this information, the
concurring and dissenting opinion concludes there was no evidence that a motive to kill
developed from the robbery. But this interpretation of the evidence, while plausible, is
not the view the jury took, does not rule out the jury’s conclusion, and is not the one we
are compelled to adopt in light of the evidence in this record and the standard of review.
Viewing the evidence in the light most favorable to the verdict, we hold a reasonable trier
of fact could conclude — and did — that the prosecution sustained its burden of proof.
(People v. Boyer, supra, 38 Cal.4th at pp. 479–480; see also People v. Carter (2005)
36 Cal. 4th 1215, 1261 [“In reviewing a claim of insufficient evidence as to special
circumstance findings, ‘ “ ‘we must determine “whether, after viewing the evidence in
56
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the [allegations] beyond a reasonable doubt.” ’ ” [Citation.]’ ”].) In
light of this standard of review, and our interpretation of the same facts, we find
sufficient evidence supports the jury’s robbery-murder special-circumstance true finding.
8. Multiple Murder Special Circumstance True Finding
Mora and Rangel contend the jury’s multiple murder special-circumstance true
finding must be reversed. They argue the special circumstance may have been found true
only if the jury determined that each of them intended to kill the victim he did not shoot.
But, they contend, the jury instructions and facts of the case render it impossible to know
whether the jury so found beyond a reasonable doubt, or if it instead found that Mora and
Rangel intended to aid and abet the robbery of the victim he did not shoot, which would
have been insufficient to support the multiple murder special-circumstance true finding.
The jury was instructed pursuant to CALJIC Nos. 8.80.1, concerning special
circumstances generally, and 8.81.3, concerning the multiple murder special-
circumstance specifically. CALJIC No. 8.80.1 instructs, in relevant part, “If you find that
a defendant was not the actual killer of a human being, or if you are unable to decide
whether the defendant was the actual killer or an aider and abettor, you cannot find the
special circumstance to be true as to that defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill, aided or abetted . . . in the
commission of the murder in the first degree, or with reckless indifference to human life
and as a major participant, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted in the commission of the crime of attempted robbery which resulted
in the death of a human being.”
Mora and Rangel assert that there was ambiguity in CALJIC No. 8.80.1 because it
permitted the jury to find true the multiple murder special circumstance even if the jury
found only that either appellant acted, with reckless indifference to human life, as a major
57
participant in the attempted robbery of the victim they did not shoot. Mora and Rangel
are correct, and we held as much in Covarrubias, where we examined the paragraph of
CALJIC No. 8.80.1 with which Mora and Rangel quarrel here. (Covarrubias, supra,
1 Cal.5th at pp. 925–931.) We explained in Covarrubias that “this portion of CALJIC
No. 8.80.1” was erroneous because it “permitted the jury to find the multiple-murder
special circumstance true without finding defendant intended to kill a human being.”
(Covarrubias, supra, 1 Cal.5th at p. 929.) Because the same infirmity we identified in
Covarrubias was also present in the instruction given here, we hold it was error to
instruct the jury pursuant to CALJIC No. 8.80.1. (Ibid.)
In Covarrubias, we concluded “the error was harmless because overwhelming
evidence established, and the jury could have had no reasonable doubt, that defendant
intended to kill, and that he was an actual killer.” (Covarrubias, supra, 1 Cal.5th at
p. 929.) Covarrubias involved three shooters and three murder victims, each found with
wounds apparently inflicted by defendant as well as by one or both of the other shooters.
(Id. at p. 930.) Based on the physical evidence, we concluded that the defendant certainly
“intentionally and fatally” shot one of the victims. (Id. at p. 931.) From this we reasoned
that “the record compels the conclusion that the instructional error regarding the multiple
murder special circumstance was harmless beyond a reasonable doubt. (See also People
v. Maciel (2013) 57 Cal. 4th 482, 521 [160 Cal. Rptr. 3d 305, 304 P.3d 983] [multiple
murder special circumstance does not require a finding of intent to kill every murder
victim].)” (Covarrubias, supra, 1 Cal.5th at p. 931.)
The multiple murder special-circumstance instruction given here, CALJIC
No. 8.81.3, echoes this requirement. It provides, “To find that the special circumstance,
referred to in these instructions as multiple murder convictions, is true, it must be proved:
A defendant has in this case been convicted of at least one crime of murder of the first
degree and one or more crimes of murder of the first or second degree.” (CALJIC
No. 8.81.3; see also § 190.2, subd. (a)(3).) Although this is not an incorrect statement, as
58
Covarrubias and People v. Maciel instruct, it is not complete. Section 190.2, subdivision
(a)(3) defines the multiple murder special circumstance as a conviction “of more than one
offense of murder in the first or second degree.” In People v. Turner (1984) 37 Cal. 3d
302, 328–329, we added an element to the special circumstance beyond that statutory
requirement: intent to kill. We overruled People v. Turner in People v. Anderson (1987)
43 Cal. 3d 1104, 1149–1150, holding “intent to kill is not an element of the multiple-
murder special circumstance; but when the defendant is an aider and abetter rather than
the actual killer, intent must be proved.”
In People v. Rogers (2006) 39 Cal. 4th 826, 891, we examined the propriety of a
multiple murder special circumstance instruction. The crime in Rogers took place after
we issued our decision in People v. Turner (in which we required a finding of intent) and
before our decision in Anderson. We explained there that, under Anderson, intent is not
an element of the multiple murder special circumstance unless the defendant is not the
actual killer but is instead an aider and abettor, in which case intent must be established.
(People v. Rogers, supra, 39 Cal.4th at p. 891.) Because the crime in People v. Rogers
predated our decision in Anderson, however, we explained the jury was required to find
intent to kill for at least one of the murders. (Ibid.) But, “we explained: ‘We have never
held that the multiple-murder special circumstance requires a jury to find the defendant
intended to kill every victim.’ ” (Ibid., quoting People v. Dennis (1998) 17 Cal. 4th 468,
516.) We affirmed this concept recently in People v. Maciel, supra, 57 Cal.4th at p. 521.
From this line of cases, a principle emerges: to find true the multiple murder
special-circumstance allegation, a jury must find that the defendant has been convicted of
at least two counts of murder, at least of one which must be first degree murder, and that
the defendant either actually killed or intended to kill at least one of the victims. (See
§ 190.2, subd. (a)(3); Covarrubias, supra, 1 Cal.5th at p. 931; People v. Maciel, supra,
57 Cal.4th at p. 521.) Although nothing so clear was conveyed to the jury here, the
essence of this instruction was tucked into the many directives bundled into CALJIC
59
Nos. 8.80.1 and 8.81.3. CALJIC No. 8.81.3 was not incorrect, but it was incomplete.
CALJIC No. 8.80.1 correctly instructed the jury that the multiple murder special
circumstance could be found true if defendants were the actual killers or if they intended
to kill.
Of course, CALJIC No. 8.80.1 also contained instructional error because it
improperly permitted the jury to find the multiple murder special circumstance true if it
found defendants acted with reckless indifference to human life as major participants in
an attempted robbery — in the alternative to concluding defendants intended to or
actually killed one of the victims. (See Covarrubias, supra, 1 Cal.5th at p. 929.) As we
explained in Covarrubias, “an instructional error in this context is harmless under
Chapman however, ‘when, beyond a reasonable doubt, it did not contribute to the
verdict.’ [Citation.] . . . [T]his standard may be met when we are able to conclude that
the jury necessarily found an intent to kill under other properly given instructions, or
when evidence of the defendant’s intent to kill is overwhelming and the jury ‘ “could
have had no reasonable doubt” that the defendant had the intent to kill.’ ” (Covarrubias,
supra, 1 Cal.5th at p. 929.) In Covarrubias, we concluded that defendant both intended
to kill and was an actual killer. (Ibid.) But we need not find both to be true. Pursuant to
the multiple murder special circumstance standard previously articulated, it is sufficient
that we find Mora and Rangel were each the actual killer of one victim and that they were
convicted of more than one count of murder, at least one of which was first degree. The
jury necessarily found each defendant actually killed the victim he shot, and it convicted
each defendant of two counts of first degree murder. The evidence supporting the jury’s
true finding of the multiple murder special-circumstance is overwhelming. So we hold
the instructional error was harmless. (See ibid.)
60
9. First Degree Murder Instructional Error
Mora and Rangel contend that the first degree felony murder and malice-murder
instructions were erroneous, and their convictions must be reversed, because the
information charged them only with second-degree malice-murder pursuant to section
187. They argue that it was therefore error to instruct the jury that it could convict of the
uncharged crime of first degree murder. They further argue that their convictions violate
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which prohibits conviction of
uncharged crimes. This court has repeatedly rejected identical arguments, and neither
Mora nor Rangel provide a reason to depart from our long-established rule.
(People v. Friend (2009) 47 Cal. 4th 1, 54 [rejecting instructional error claim that first
degree murder conviction is inconsistent with malice murder charge under section 187
and rejecting Apprendi error claim because the conviction is not of an uncharged crime];
see also People v. Hughes (2002) 27 Cal. 4th 287, 369 [“accusatory pleading charging a
defendant with murder need not specify the theory of murder upon which the prosecution
intends to rely”].)
10. Proof Beyond a Reasonable Doubt Instructional Error
According to Mora and Rangel, a series of guilt phase instructional errors singly or
cumulatively impermissibly undermined their right to have guilt determined beyond a
reasonable doubt in violation of the principles of due process, fair trial, trial by jury, and
the fundamental requirement of reliability in a capital case. Mora and Rangel
acknowledge that this court has repeatedly rejected identical claims, and they raise no
argument that we have not considered. Accordingly, we again conclude that CALJIC
Nos. 2.01 and 2.02 do not undermine the proof beyond a reasonable doubt standard, and
CALJIC Nos. 2.21.1, 2.21.2, 2.22, 2.27, and 8.20 do not dilute the reasonable doubt
standard. (People v. Becerrada (2017) 2 Cal.5th 1009, 1028.)
61
11. Juror Unanimity Regarding Theory of First Degree Murder
Mora and Rangel argue the trial court erred by failing to require that the jury
unanimously agree on a theory of first degree murder before returning guilty verdicts for
that crime. As they acknowledge, this court has repeatedly rejected similar claims.
(See People v. Nakahara (2003) 30 Cal. 4th 705, 712–713; see also People v. Sattiewhite
(2014) 59 Cal. 4th 446, 479.) Mora and Rangel posit that recent United States Supreme
Court case law warrants our reconsideration of this precedent, but rely on the high court’s
nearly twenty-year-old decision in Apprendi, supra, 530 U.S. 466. We have far more
recently affirmed our long-standing rule that juror unanimity regarding the theory of first
degree murder is not required. (See People v. Grimes (2016) 1 Cal.5th 698, 727–728.)
Indeed, over a decade ago, we concluded that there is “nothing in Apprendi that would
require a unanimous jury verdict as to the particular theory justifying a finding of first
degree murder.” (People v. Nakahara, supra, 30 Cal.4th at p. 713.) Mora and Rangel
present us with no reason to depart from the settled authority on this issue.
12. Attempted Robbery Pinpoint Instructional Error
Rangel argues the trial court erred by denying his request to provide the jury with
a pinpoint instruction regarding attempted robbery. We hold, for reasons addressed
below, that the trial court did not abuse its discretion by denying the requested instruction
as duplicative.
a. Background
At the conclusion of the guilt phase, Rangel requested that the court give a
pinpoint instruction concerning the crime of attempted robbery as it related to the charge
of felony murder. Specifically, appellant requested that Special Instruction No. 1 be
62
given, essentially seeking to instruct the jury that a nonhomicidal felonious intent must
exist to support a felony murder conviction.18
Rangel’s requested instruction was based on this court’s holding in People
v. Sears (1970) 2 Cal. 3d 180, 187–188. In People v. Sears, the defendant entered his
wife’s home with a concealed tire iron, assaulted his wife, mother-in-law, and
stepdaughter with that and other weapons, and killed his stepdaughter. (Id. at pp. 183–
184.) The jury was instructed concerning first and second degree murder, felony murder
during the commission of a burglary, and on the lesser included offenses of attempted
murder and assault with a deadly weapon. (Id. at p. 184–185.) During deliberations, the
jury asked the court whether assault against the defendant’s wife constituted a felony
regardless of his intent when he entered the home and, if so, whether first degree felony
murder applied. (Id. at p. 185.) The court responded by stating the “ ‘the specific intent
to commit the assault must exist at the time of entry, otherwise the felony-murder rule
does not apply.’ ” (Ibid.) The jury found the defendant guilty of the first degree murder
of his stepdaughter and the attempted murders of his wife and mother-in-law, fixing the
penalty at death. (Id. at p. 182.) We reversed the defendant’s conviction, holding that the
court’s instructions and answer to the jury’s question constituted prejudicial error because
burglary based upon the intent to commit an assault with a deadly weapon cannot support
a felony murder instruction as that assault is included within the murder charge itself.
(Id. at p. 188.) We explained that the felony murder rule exists to deter the negligent or
18 In its entirety, Special Instruction No. 1 stated, “To prove the felony murder of
first degree murder, the prosecution must prove beyond a reasonable doubt that the
attempted robbery was done for the independent purpose of committing the felony rather
than for the purpose of committing the homicide. [¶] If the defendant’s primary purpose
was to kill or if he committed the attempted robbery to facilitate or conceal the homicide,
then there was no independent felonious purpose. If from all the evidence you have a
reasonable doubt that the defendant committed the attempted robbery for such
independent felonious purpose, you must find the defendant not guilt[y] on the felony
murder theory.”
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accidental killings that may result from the commission of a felony. (Id. at p. 187.) The
felony murder rule does not deter a person who intends to enter a building and commit an
assault. (Ibid.)
The trial court declined to instruct the jury as Rangel requested. The court
explained that the “import of [People v. Sears] is included in [CALJIC No.] 8.21,” which,
combined with CALJIC No. 8.27 “covers the issue.” CALJIC No. 8.21, as given,
provides, “The unlawful killing of a human being, whether intentional, unintentional or
accidental, which occurs during the commission or attempted commission of the crime of
robbery is murder of the first degree when the perpetrator had the specific intent to
commit that crime. [¶] The specific intent to commit robbery and the commission or
attempted commission of such crime must be proved beyond a reasonable doubt.” The
jury was also instructed pursuant to CALJIC No. 8.27,19 addressing aider and abettor
liability, and underscoring that the intent to commit the underlying felony must be present
at the time the killing occurs. Because the jury was instructed with CALJIC Nos. 8.21
and 8.27, the court reasoned that instructing the jury pursuant to Rangel’s requested
pinpoint instruction would be duplicative.
19 CALJIC No. 8.27, as given, states, “If a human being is killed by any one of
several persons engaged in the commission or attempted commission of the crime of
attempted robbery, all persons who either directly and actively commit the act
constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator
of the crime and with the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate by act or advise its
commission, are guilty of murder of the first degree, whether the killing is intentional,
unintentional, or accidental. [¶] In order to be guilty of murder, as an aider and abettor
to a felony murder, the accused and the killer must have been jointly engaged in the
commission of the attempted robbery at the time the fatal wound was inflicted. However
an aider and abettor may still be jointly responsible for the commission of the underlying
attempted robbery based upon other principles of law which will be given to you.”
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b. Discussion
Rangel argues that his requested instruction should have been given to aid the
jury’s determination of whether Rangel had an independent felonious intent to commit
robbery. A proper pinpoint instruction must be given at a defendant’s request. (People
v. Hughes, supra, 27 Cal.4th at p. 361, quoting People v. Earp, supra, 20 Cal.4th at
p. 886.) The jury must be instructed on general principles “ ‘ “closely and openly
connected to the facts and that are necessary for the jury’s understanding of the case” ’ ”
including those instructions that “pinpoint” a defense theory. (People v. Hovarter (2008)
44 Cal. 4th 983, 1021.) Pinpoint instructions are not warranted, however, when they are
argumentative, such as when requested only to highlight particular evidence. (People
v. Hughes, supra, 27 Cal.4th at p. 361.) Pinpoint instructions may also be refused if,
among other reasons, the proposed instruction is duplicative. (People v. Hovarter, supra,
44 Cal.4th at p. 1021.)
Because Rangel’s proposed instruction would have been duplicative, we conclude
the trial court did not err by denying Rangel’s request. (See People v. Hovarter, supra,
44 Cal.4th at p. 1021.) The trial court correctly concluded that the proposed instruction’s
content was adequately conveyed by CALJIC Nos. 8.21 and 8.27. The jury was
instructed that a felony murder conviction, either directly or under an aider and abettor
theory, required as a predicate that Rangel committed robbery or attempted to do so. The
jury was also instructed that robbery required the specific intent to deprive the victim of
property. With the robbery and felony murder instructions given, the jury was adequately
instructed that Rangel must have possessed the intent to commit robbery at the time of
the killing to be guilty of felony murder, just as Rangel’s requested instruction would
have conveyed. Indeed, Rangel’s requested instruction expressly stated that first degree
felony murder required proof “beyond a reasonable doubt that attempted robbery was
done for the independent purpose of committing the felony rather than for the purpose of
committing the homicide.” The jury received precisely this instruction, albeit in slightly
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different language. The content of the instruction was adequately conveyed to the jury,
and no error flowed from the court’s decision to decline Rangel’s request.
13. Cumulative Guilt Phase Error
Mora and Rangel contend reversal is warranted because of the cumulatively
prejudicial effect of guilt phase errors. To the extent any errors occurred, none were
prejudicial. We conclude no error in the guilt phase, whether considered singly or
cumulatively, merits reversal. (See People v. Souza (2012) 54 Cal. 4th 90, 139 [a few
nonprejudicial instructional errors do not warrant reversal on cumulative error claim].)
B. Penalty Phase
1. Gang Evidence
Mora and Rangel argue that introduction of evidence concerning their membership
or participation in a criminal street gang at the penalty phase of their trial constituted
error in violation of their state and federal constitutional rights. We hold the trial court
did not abuse its discretion in permitting limited introduction of gang affiliation evidence.
a. Background
The prosecutor asserted at the outset of trial that no gang evidence was anticipated.
Specifically, before the court conducted voir dire, the prosecutor was asked whether there
was “any gang evidence that you will elicit in this case,” to which the prosecutor replied,
“not that I know of.” Because no evidence was expected to be adduced concerning gang
affiliation, defense counsel decided against conducting voir dire of potential jurors
regarding their views on gangs or gang membership. Immediately prior to presenting her
first witness, the prosecutor was again asked whether she planned to elicit testimony
regarding defendants’ gang affiliation. The prosecutor indicated she had no intent of so
doing. Witnesses were admonished not to mention Mora or Rangel’s gang affiliation.
The court stated it had no “problem excluding gang [evidence] but if it looks like we
can’t go any other way, then I ask that we approach.” The parties agreed, even though no
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such discussion was required until the penalty phase. At that time, the court and parties
held a brief colloquy to address the admissibility of gang evidence as to Rangel, and the
court ruled the evidence admissible.
1. Mora
At the penalty phase, the prosecutor stated her intent to present evidence that Mora
was involved in an assault in county jail in 1996, where he was incarcerated for a Vehicle
Code infraction two years prior to the penalty phase of this trial. Mora requested that no
mention of gang activity be made concerning Mora during the penalty phase. After
confirming with the prosecutor that no such evidence was expected, the court stated there
would be “no gang evidence as it relates to Mr. Mora.”
In 1996, Paul Juhn, an inmate in county jail, was assaulted by four or five fellow
inmates. Juhn identified the assailants immediately following the attack, but was no
longer able to make identifications at the time of Mora’s trial. Accordingly, Deputy
Sheriff Kresimir Kovac, who was with Juhn when he identified his assailants, testified
that the incident report indicated Mora was one of those who Juhn identified. Kovac’s
report noted that Mora had a tattoo on his chest that said “King City Criminals.” The
parties and court agreed that Kovac could identify Mora by this tattoo in court if Kovac
was unable to visually identify him. Mora initially objected to an identification via his
tattoo, and offered to stipulate that Kovac contacted Mora in connection with Juhn’s
assault. The prosecutor declined the stipulation, and the court ruled that if Kovac could
not identify Mora, Kovac could view Mora’s tattoo out of the presence of the jury and
identify him in that fashion without informing the jury regarding the subject of the tattoo.
Kovac could not identify Mora, but testified that the incident report named Mora
and listed information about Mora’s chest tattoo. After viewing Mora’s tattoo out of the
presence of the jury, Kovac testified that Mora had the same three-word phrase tattooed
on his chest as was written in the incident report. The court precluded Kovac from telling
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the jury what the three words were, ruling that the prejudicial effect of that evidence
outweighed its probative value. Kovac testified that when identifying suspects in reports,
he typically noted information regarding unique identifiers like tattoos, including ones
“that show[] a gang name, gang affiliation, anything like that.” No objections followed
this testimony.
Later in the proceedings, Mora requested that the prosecutor refrain from making
references in closing that Kovac testified that Mora had a gang tattoo or that Kovac was
looking for a gang tattoo. The court readily agreed, explaining “there can’t be” closing
argument along those lines because “[t]here is no evidence to support that.”
2. Rangel
In aggravation at the penalty phase, the prosecutor stated her intent to present
evidence that Rangel suffered a felony automobile burglary conviction. Over defense’s
inaccurate objection that the conviction was actually a misdemeanor, the evidence was
ruled admissible. Specifically, the prosecution intended to — and did — adduce
evidence that Rangel spray-painted the letters “KCC” on the top of a car and, when
confronted by the vehicle’s owner, Rangel threatened to kill the owner if he went to the
police. The prosecutor introduced evidence that “KCC” stood for “King City Criminals,”
a street gang, and Rangel’s threat to the burglary victim was heightened in light of
Rangel’s gang affiliation. The vehicle owner testified that after Rangel spray painted
“KCC” on the top of his car and threatened to kill him, the owner made it a point to move
to a new home before Rangel was released from jail.
During the mitigation phase, Rangel presented testimony from Jose Jimenez, an
acquaintance of Rangel’s via a Bible study group, who testified that the murder charge
seemed out of character for Rangel. The prosecutor argued, and the court agreed, that
this testimony opened the door to permit inquiry as to whether Rangel’s gang
membership was consistent with Rangel’s character in Jose’s opinion. The prosecutor
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asked Jose if he knew Rangel was a gang member, and Jose responded that he “never
perceived [Rangel] as a gang member.” Although Jose testified that he would not be
surprised to learn Rangel was a gang member, Jose did not know or believe Rangel to be
so affiliated. Jose conceded he would find it surprising to learn that Rangel spray-painted
the letters “KCC” on a car, and Jose had not seen that side of Rangel.
Following the mitigation phase, the prosecution presented a rebuttal expert witness
to testify further about street gangs. The expert testified that many gang members are
known by nicknames or monikers. The expert noted that gang members are often
identified by their shaved hairstyles and tattoos. Based on Rangel’s tattoos and hairstyle,
the expert testified that Rangel was a “gang member of a hard-core nature” with a
“wanton disregard or disrespect for life itself.” Rangel requested a limiting instruction
that gang membership is not a crime and cannot be considered an aggravating factor. The
court denied the request, although the prosecution was instructed not to argue about the
gang evidence in closing.
b. Discussion
Nearly all of Mora and Rangel’s claims of error are forfeited because they failed to
object on the grounds specified on appeal. (People v. Gutierrez (2009) 45 Cal. 4th 789,
819 (Gutierrez).) Had Mora and Rangel properly preserved these claims, no error
occurred in admitting this evidence.
Mora first contends that Kovac’s testimony impermissibly implied that Mora was
a gang member, and the trial court erred by admitting that evidence-by-implication
without carefully scrutinizing whether it was more than tangentially relevant. (See
People v. Gurule (2002) 28 Cal. 4th 557, 653 (Gurule).) Mora failed to object on this
basis during his trial and has forfeited the claim on appeal. (Gutierrez, supra, 45 Cal.4th
at p. 819.) Even if he had not, Mora’s objection to testimony that the lineup procedure
following Juhn’s attack was designed to protect Juhn from Mora “or from one of his
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other gang members that he knows,” cannot be understood to imply Mora’s gang
membership. Kovac testified about the jail lineup process generally, explaining that
victims are asked to identify assailants from behind a door or screen because “[i]f
somebody . . . identifies an attacker or something like that, there is a real threat of
retaliation from that individual, the suspect, or from one of his other gang members that
he knows.” Kovac was not testifying about Mora specifically when making the statement
to which Mora now objects.
We review a trial court’s evidentiary rulings for abuse of discretion. (Gutierrez,
supra, 45 Cal.4th at p. 819.) Such abuse will be found where a court acts unreasonably
given the circumstances presented by the particular case before it. (Id. at pp. 819–820.)
It was not unreasonable for the trial court to permit the introduction of Mora’s “other
crimes” evidence at the penalty phase, and the scant reference to gangs during that
testimony does not alter our conclusion. (See People v. Tully (2012) 54 Cal. 4th 952,
1027 [no abuse of discretion found when admitting “other crimes” evidence at penalty
phase where evidence was legally sufficient].) No evidence was adduced concerning
Mora’s gang affiliation; the court carefully shielded the jury from that information.
Although heightened scrutiny is warranted where gang evidence is concerned (Gurule,
supra, 28 Cal.4th at p. 653), no gang evidence was introduced in connection with
Kovac’s testimony regarding the jail lineup process. There is no particular court ruling to
review because Mora interposed no objection following the testimony about which he
now complains, and we find the trial court’s general admission of evidence in
aggravation was not unreasonable or an abuse of discretion. (Gutierrez, supra,
45 Cal.4th at pp. 819–820).
Mora next argues that Kovac’s testimony identifying Mora in the Juhn assault was
irrelevant and inadmissible. Mora so contends because he offered to stipulate that Mora’s
name was in Kovac’s incident report. This argument is unavailing. The offered
stipulation and Kovac’s testimony differed. The presence of an individual’s name in an
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incident report is not equivalent to testimony identifying the individual as involved in the
incident. Had the presence of the name been sufficient, Kovac could have testified
simply that the incident report named Mora without undertaking the additional step of
identifying Mora by visually matching Mora’s chest tattoo with the tattoo described in
the report. Mora argued his proposal constituted an offer to stipulate to an element of a
charged offense and the prosecutor was obliged to accept it to the exclusion of presenting
evidence. (See People v. Bonin (1989) 47 Cal. 3d 808, 849.) Not so. The stipulation
offered by Mora was inadequate to fully identify Mora, and Kovac’s testimony was
necessary. Accordingly, no error resulted from the admission of Kovac’s identification
of Mora.
Rangel’s contentions, likewise, fail to persuade. Rangel argues, as did Mora, that
evidence of his membership in the KCC gang, while extremely prejudicial, was only
tangentially relevant and should have been excluded after careful scrutiny under Gurule.
(Gurule, supra, 28 Cal.4th at p. 653.) Rangel did not object on this basis during trial and
the claim is forfeited on appeal. (Gutierrez, supra, 45 Cal.4th at p. 819.) Even if
prejudicial, gang evidence of the type introduced here is relevant pursuant to section
190.3, under which the jury may consider past criminal behavior involving violence or
threats of violence. The circumstances of those past crimes, including gang membership,
may be disclosed to the jury. (Gurule, supra, 28 Cal.4th at pp. 653–654.)
Rangel spray-painted the letters “KCC” atop a car and threatened to kill the car’s
owner if he reported the crime to the police. Because Rangel was known by the victim to
be a gang member, that threat had particular potency. The past criminal threat of
violence was relevant and admissible pursuant to section 190.3. Thus, the trial court did
not act unreasonably in an abuse of its discretion by admitting evidence related to
Rangel’s gang affiliation as it pertained to the vehicle burglary offense. (Gurule, supra,
28 Cal.4th at pp. 653–654.)
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Rangel also claims the trial court erred by admitting evidence of his gang
membership during mitigation witness Jose’s testimony. Again, Rangel’s claim of error
is forfeited on appeal because he did not object on this basis at trial. (Gutierrez, supra,
45 Cal.4th at p. 819.) Assuming, arguendo, that the claim is not forfeited, we conclude
there was no error.
When a defendant places his or her character in issue during the penalty phase, the
prosecution may introduce contrary character evidence. (People v. Loker (2008)
44 Cal. 4th 691, 709.) The prosecution only needs to have a good faith belief that the
incidents or conduct about which it inquires actually occurred. (Ibid.) The prosecutor
had more than that here; after Jose testified to Rangel’s good character, the prosecutor
asked Jose about Rangel’s past criminal offense. Specifically, the prosecutor asked Jose
if he would be surprised to learn that Rangel spray-painted the letters “KCC” on the top
of a car, an incident the prosecutor had a good faith belief that it occurred in light of the
prior testimony to that effect. This evidence was related to the allegations of Rangel’s
good character and was thus admissible. (Id. at pp. 709–710; see also People v. Fierro
(1991) 1 Cal. 4th 173, 239–240 [evidence of a defendant’s good character opened door to
evidence of his participation with youth gangs].) Similarly, no error flowed from the
prosecution’s eliciting testimony that Jose would not have been surprised to learn that
Rangel was in a gang because that testimony followed Jose’s testimony to Rangel’s good
character. (People v. Loker, supra, 44 Cal.4th at p. 709.)
Finally, both Mora and Rangel argue that because the jury was not voir dired
regarding gangs, references to gang membership during the penalty phase constituted
error. We find otherwise. Although the prosecutor stated at the outset of trial that she
did not believe gang evidence would be adduced, Mora acknowledged the possibility that
some gang evidence could “slip[] out.” During trial, the court reminded defense counsel
that declining to conduct voir dire regarding gang issues “was a tactical decision.” As we
have explained in a slightly different context, “[d]efense counsel are routinely faced with
72
difficult tactical decisions in having to fashion voir dire inquiries that probe for possible
penalty phase biases regarding such evidence, while stopping short of revealing
information otherwise prejudicial and excludable in the guilt phase.” (People v. Ray
(1996) 13 Cal. 4th 313, 357.)
The prosecutor never made any guarantee that she would avoid introducing gang
evidence. And while defense counsel avoided addressing such evidence during voir dire,
that choice did not impose on the prosecution any obligation to refrain from introducing
such evidence at trial. The parties agreed to engage in a colloquy if it appeared the
prosecution wished to introduce gang evidence. The prosecutor did exactly that during
the penalty phase prior to introducing evidence of Rangel’s gang membership in
connection with the relevant and admissible character and past crimes evidence. Gang
evidence was inextricably intertwined with the circumstances of Rangel’s prior offense.
Defense counsel’s early tactical decision to avoid gang voir dire was made with full
awareness of the possibility that some gang evidence could be introduced, and its
eventual introduction does not transform that tactical choice into error. (See, e.g., People
v. Horton (1995) 11 Cal. 4th 1068, 1123–1124 [counsel’s tactical decision to avoid voir
dire on sensitive subject did not render assistance ineffective]; see also People v. Hinton
(2006) 37 Cal. 4th 839, 876 [counsel’s “ ‘ “reasonable, if difficult, tactical decisions” ’ ”
are accorded deference and must not be second-guessed on appeal].) Having found no
error in the introduction of gang evidence in the penalty phase, it follows that no
prejudice resulted.
2. Instructional Error
Mora and Rangel raise a host of instructional error claims, each of which this court
has previously rejected. Mora and Rangel requested the jury be instructed that regarding
death as a less severe penalty than life would constitute misconduct, which the trial court
refused. As this court has consistently concluded, a trial court’s refusal of this special
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instruction does not constitute error, especially because “ ‘ “the penalty trial itself and the
jury instructions given, particularly CALJIC No. 8.88, make clear that the state views
death as the most extreme penalty.” ’ ” (People v. Contreras (2013) 58 Cal. 4th 123,
170.)
Mora and Rangel also requested the jury be instructed that drug or alcohol
intoxication constitutes a mitigating factor only, not an aggravating factor. The court
declined to give this proposed instruction to avoid confusing the jury. As Mora and
Rangel acknowledge, there is no requirement to specify which factors are aggravating
and which are mitigating. (People v. Farnam, supra, 28 Cal. 4th 107, 191.) They contend
that the issue was confused by the prosecution’s argument and court’s agreement, outside
the presence of the jury, that intoxication could be considered as a circumstance of the
offense in aggravation under section 190.3, subdivision (a). Even if this colloquy was
ambiguous or incorrect, it did not occur before the jury and could not have created any
misunderstanding. Furthermore, pursuant to section 190.3, subdivisions (a) and (h),
respectively, the jury was instructed to consider in determining the appropriate penalty
“[t]he circumstances of the crime” and “[w]hether or not at the time of the offense the
capacity of the defendant to appreciate the criminality of his conduct . . . was impaired as
a result of . . . intoxication.” Although Mora and Rangel argue that reasonable jurors
would have been unable to understand whether to consider intoxication as a mitigating or
aggravating factor, there is no reason to believe this is so. We therefore conclude no
error resulted from the court’s refusal to give the special instruction concerning
intoxication. (See People v. Osband (1996) 13 Cal. 4th 622, 706 [no error found in
court’s refusal to give special instruction that intoxication under section 190.3,
subdivision (h) could only be considered in mitigation].)
Next, Mora and Rangel contend that the court erred by refusing a special
instruction that evidence of their backgrounds could only be considered in mitigation.
This court has repeatedly rejected similar claims. (People v. Hinton, supra, 37 Cal.4th at
74
p. 912.) In particular, this court has rejected the notion that a jury instruction should
identify particular aggravating or mitigating evidence. (Ibid.) As in People v. Hinton,
because the jury was correctly instructed concerning factors in aggravation and
mitigation, the court did not err by refusing the special instruction. (Ibid.)
Mora and Rangel also argue that the trial court improperly rejected three proposed
instructions that would have clarified the penalty weighing process. This court has
repeatedly rejected similar arguments, as Mora and Rangel note, because CALJIC
No. 8.8820 “ ‘accurately describes the individualized, normative nature of the sentencing
determination, and properly guides the jury’s discretion in this regard.’ ” (People v. Cage
(2015) 62 Cal. 4th 256, 291, quoting People v. Contreras, supra, 58 Cal.4th at p. 170.)
Finally, Mora and Rangel contend that the court erred by declining to give special
instructions limiting the jury’s consideration of victim impact evidence. 21 As Mora and
Rangel acknowledge, this court has rejected similar challenges to a trial court’s rejection
of the identical instructions22 proposed here. (People v. Zamudio (2008) 43 Cal. 4th 327,
368 [finding no error in trial court’s refusal to give instruction identical to the one Mora
proposed].) Out of an abundance of caution, the court added a sentence to CALJIC
20 On the court’s own motion, the jury was instructed pursuant to CALJIC No. 8.88.
21 Mora raises this instructional error argument in the context of his numerous claims
of similar error, while Rangel raises it in connection with his argument that the
“circumstances of the crime” language in section 190.3, subdivision (a) is
unconstitutionally vague and overbroad. The remainder of Rangel’s argument regarding
the constitutionality of section 190.3, subdivision (a) is discussed in section II.B.4., post.
22 Rangel’s requested special instruction stated, “Evidence has been introduced for
the purpose of showing specific harm caused by the defendant’s crime. Such evidence, if
believed, was not received and may not be considered by you to divert your attention
from your proper role of deciding whether the defendant should live or die. You must
face this obligation soberly and rationally, and you may not impose the ultimate sanction
as a result of irrational, purely subjective response to emotional evidence and argument.”
Mora’s requested special instruction added a sentence to the end of the foregoing, stating,
“On the other hand, evidence and argument on emotional though relevant subjects may
provide legitimate reasons to sway the jury to show mercy.”
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No. 8.84.1, instructing the jury that they “must face [their] obligation soberly and
rationally and . . . not [sic] a purely subjective response to emotional evidence.” Neither
Mora nor Rangel contend the addition of this language constituted error, but only that it
was not sufficient to cure the error flowing from the court’s refusal to give the requested
special instructions. We disagree. The substance of the proposed instruction was
adequately conveyed by the modified version of CALJIC No. 8.84.1 given by the court.
No error resulted from the court’s refusal to provide it. (Ibid.) Moreover, as we
concluded in People v. Zamudio, supra, “the requested instruction is misleading to the
extent it indicates that emotions may play no part in a juror’s decision to opt for the death
penalty.” (Ibid.) Because the proposed special instruction was redundant and
misleading, the court’s refusal to give it did not constitute error. (Ibid.) With no error in
need of cure, Mora and Rangel’s claims that the augmentation to CALJIC No. 8.84.1 was
insufficient fails.
3. Continuance Request
Rangel contends the trial court abused its discretion and violated his constitutional
rights to due process, to a fair trial, to present a defense, to equal protection, to a reliable
penalty phase, and to the effective assistance of counsel by denying a continuance. A
continuance was essential, he argues, because it would have allowed him to determine
whether to present a surrebuttal witness, and denying a continuance postponing closing
argument. We conclude the court’s denials of these continuances were proper.
a. Background
After the prosecution presented gang expert evidence, the court asked if Rangel
intended to present a surrebuttal witness. Rangel sought a continuance to decide whether
to do so, which the court denied. Rangel objected, and the court inquired if any witness
was contemplated. Rangel replied, “Possible.” Upon the court’s request for greater
specificity, Rangel indicated he “might” call his father, Ruben Gomez Rangel, who was
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not then present in court. The court provided Rangel two and one-half hours to contact
Ruben and secure his presence at court, and to provide an offer of proof regarding
Ruben’s testimony to ensure it would constitute appropriate surrebuttal material. The
court noted it was “not making any promises.” Rangel did not contact Ruben during the
two and one-half hours, but planned to contact Ruben that evening and requested a recess
to do so. Over objection, the recess was denied.
The court was ready to begin Rangel’s closing penalty phase argument at around
3:50 p.m. that day. Noting the time, Rangel expressed concern that the jurors would be
tired and the closing argument would be rushed. The court promised that there would be
time enough to complete the argument, and agreed to stay in session past the 4:30 p.m.
adjournment time if needed. When Rangel again balked because jurors would be
fatigued and would likely wish to go home at that time, the court noted that the jurors had
been attentive thus far and had had a relatively short court day in light of the many
discussions that took place outside the presence of the jury. Over objection, the court
declined to recess. Rangel’s closing argument began at 3:55 p.m.
After a half-hour of argument, the court called the parties to the bench to discuss
an improper line of discussion in Rangel’s closing. The court warned it would conclude
Rangel’s closing if further improper argument leading to interruptions occurred, to which
Rangel’s counsel responded, “It’s probably the end anyway because I don’t have enough
time.” When counsel resumed argument, she spoke for less than a minute more and
concluded her closing argument at 4:50 p.m.
b. Discussion
A trial court has broad discretion to grant or deny continuances. (Jenkins, supra,
22 Cal.4th at p. 1037; see Morris v. Slappy (1983) 461 U.S. 1, 11–12 [“Trial judges
necessarily require a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at the same place at the
77
same time, and this burden counsels against continuances except for compelling reasons.
Consequently, broad discretion must be granted trial courts on matters of continuances;
only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’ violates the right to the assistance of counsel”].) We review
a trial court’s denial of a continuance request for abuse of discretion. (Jenkins, supra,
22 Cal.4th at p. 1037.) Rangel argues the trial court abused its broad discretion in
denying two continuance requests made on the same day: the first, to contact a witness
that had already testified to determine whether that witness could supply appropriate
surrebuttal testimony, and the second, to wait until the following day to present closing
argument in case the jurors were tired. The trial court acted within its discretion in
denying both requests.
Rangel bore the burden to demonstrate good cause for a continuance to secure a
surrebuttal witness. (Jenkins, supra, 22 Cal.4th at p. 1037.) Rangel must have — and did
not — show he exercised due diligence in securing the witness’s presence, that the
expected testimony was material, noncumulative, and could be secured within a
reasonable period of time, and that the facts to which the witness was expected to testify
could not otherwise be proven. (Ibid.) We accord substantial deference to a trial court’s
determination of these issues. (People v. Howard (1992) 1 Cal. 4th 1132, 1172.)
As Rangel conceded before the trial court, he was unable to show that Ruben’s
expected testimony in surrebuttal would be material, noncumulative, or would concern
facts not otherwise capable of proof. When the trial court asked if Rangel intended to
present a surrebuttal witness, Rangel acknowledged only that it was “possible” he would
do so. When called upon to be more specific, Rangel replied that he “might” call Ruben.
Rangel was given an opportunity to contact Ruben and to make an offer of proof
regarding the expected surrebuttal testimony; Rangel squandered that opportunity. Far
from showing diligence in attempting to secure the witness’s testimony, Rangel informed
the court that he made no effort whatever to contact the witness.
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In evaluating a continuance request, the trial court considers the benefit of the
expected testimony as anticipated by the party seeking additional time, as well as the
likelihood that the expected benefit will be realized, the burden caused to jurors and the
court, and whether justice is better served by granting or denying a continuance.
(Jenkins, supra, 22 Cal.4th at p. 1037.) Without being able to assess the benefit of the
expected testimony, the court properly concluded that the burden on the jurors and court
outweighed any possible advantage, and justice would be better served by denying the
request. (Ibid.) Rangel argues the parties discussed jury instruction issues with the court
during much of two and one-half hours provided to contact the witness. While true, this
fact does not demonstrate why Rangel was unable to make an effort to contact Ruben or
make an offer of proof concerning the witness’s testimony. Because Rangel offered the
court nothing to evaluate, the court acted within its considerable discretion in denying
Rangel’s requested continuance.
Likewise, the court did not err in denying the request to continue closing argument
until the following day. As section 1050 indicates, “[c]ontinuances shall be granted only
upon a showing of good cause.” (§ 1050, subd. (e).) Convenience to a party does not
constitute good cause. (Ibid.) Rangel argued the jurors were overtired and would be
disinclined to attend carefully to the closing argument. The court weighed the burden to
the court and jury against the convenience to counsel. The court determined the jurors
were not overtired despite the time of day because the jurors had spent little time in court.
Although Rangel argued he would be forced “to rush,” the court agreed that court could
remain in session past the usual adjournment time of 4:30 p.m. to complete Rangel’s
closing argument. Rejecting that compromise, Rangel insisted “the jurors will not be
listening.” Although it is impossible to measure juror attentiveness on a cold record,
several factors suggest the jurors were as rested and ready to receive argument as
possible. Immediately before Rangel’s closing argument, the jurors had been given a
fifteen-minute break. During the short closing argument, a juror requested and received a
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bathroom break, permitting the other jurors to return briefly to the jury room to “stretch
their legs.” In light of these breaks and the relatively light day jurors spent in court, we
find no fault with the court’s refusal to credit counsel’s baseless concern that the jurors
would not be listening at 4:00 p.m. Accordingly, the trial court did not err by denying
Rangel’s request for a continuance. (Jenkins, supra, 22 Cal.4th at pp. 1037–1038.)
Because we conclude there was no error, it necessarily follows that no prejudice resulted.
(See Morris v. Slappy, supra, 461 U.S. at pp. 11–12.)
4. Section 190.3
Rangel argues that the “circumstances of the crime” language of section 190.3,
subdivision (a) is unconstitutionally vague and overbroad because it permits the
introduction of victim impact evidence with no limits. He also argues that introduction of
victim impact evidence was erroneous and that the trial court erred by failing to instruct
the jury concerning how to evaluate the victim impact evidence.23 We conclude these
contentions lack merit. As Rangel acknowledges, this court has rejected identical
challenges to the constitutionality of section 190.3, subdivision (a), and he presents us
with no reason to reconsider our prior holdings here. (People v. Brady (2010) 50 Cal. 4th
547, 573–574.)
Victim impact evidence concerning the effect of the murders on the family
members “is relevant and admissible under section 190.3, factor (a) as a circumstance of
the crime.” (People v. Brady, supra, 50 Cal.4th at p. 574, see also Payne v. Tennessee
(1991) 501 U.S. 808, 825.) Such evidence is barred under the federal Constitution only if
it is so extremely prejudicial that the whole of the trial is rendered fundamentally unfair.
(Ibid.)
Here, Encinas’s two adult siblings and girlfriend (Beltran) provided testimony
about Encinas’s childhood, their memories of him, and his goals of becoming a police
23 Rangel’s claim of instructional error is addressed in section II.B.2., ante.
80
officer and marrying Beltran. They testified about the difficulty their family was
experiencing following Encinas’s death and their feelings of loss and sorrow. Several
photographs depicting Encinas at various stages of his life were introduced, and Rangel
claims the introduction of each photo (save the one of Encinas immediately prior to his
death), as well as the testimony from Encinas’s siblings and girlfriend, constituted
error.24
We disagree. The victim impact testimony of Encinas’s two siblings and fiancée
comprised just 30 pages of the nearly 3,400-page record. In contrast, we held that
“testimony span[ning] several hours over two days” from nine different witnesses,
including a victim’s four siblings and fiancée, was not unduly prejudicial. (People
v. Brady, supra, 50 Cal.4th at p. 573; id. at pp. 574–578.) Similarly, the introduction here
of just a few photographs was not unduly prejudicial as we have in the past permitted the
introduction of “numerous photographs.” (Id. at p. 573; id. at pp. 574–577.) When
victim impact evidence briefly addresses a victim’s childhood to give context to
testimony regarding their adult behavior, that testimony is not impermissibly
inflammatory. (Id. at p. 577.) Rangel cites out of state authority to demonstrate that
unduly prejudicial evidence was introduced here. Reliance on this extra-jurisdictional
authority is unavailing. (Ibid.) As we explained in People v. Brady, “[t]hese cases are
24 Rangel raises a single challenge with regard to victim impact evidence concerning
Urrutia: he claims that the victim impact phase was too much like a memorial service, as
evinced when the court permitted Urrutia’s sister to be recalled, over objection, to
describe an event during which Urrutia dressed as a giant pancake. We conclude the trial
court did not abuse its discretion in permitting the introduction of this testimony, which
lasted just minutes. The court noted that while the victims’ family members experience
benefit in talking about their loss, “it has to stop somewhere.” The prosecution agreed
that this witness would be the last, and her testimony would be brief. Particularly when
considered in contrast with People v. Brady, in which we affirmed the propriety of victim
impact testimony comprised of nine witnesses providing hours of testimony over the
course of two days, this single witness being recalled to provide a minutes-long anecdote
did not render the penalty phase unconstitutional or fundamentally unfair. (People
v. Brady, supra, 50 Cal.4th at pp. 573–578.)
81
not binding on this court. The jury here heard traditional victim impact evidence: family
members and friends extolled [the victim’s] virtues and demonstrated they missed him.
Neither the type nor the amount of evidence warrants reversal.” (Ibid.)
5. Mitigating Evidence
Mora argues that the trial court erred by failing to require that the prosecution
disclose the identity of a rebuttal witness, depriving Mora of an opportunity to evaluate
whether to present certain evidence in mitigation. We find no error, but conclude any
would have been harmless in any event.
a. Background
In addition to other mitigation evidence, Mora intended to present witnesses to
testify that, during his incarceration following his arrest for these crimes, Mora served as
a “module trustee,” in which capacity he served meals, cleaned, and otherwise followed
orders. The prosecutor discussed her intention to present a possible rebuttal witness,
Deputy Lucero, who would — depending upon what evidence Mora’s mitigation
witnesses presented — testify that Mora was not a “trustee per se,” and was not housed
with other module trustees. The mitigation witnesses Mora planned to present
concerning his module trustee status were not anticipated to provide evidence of Mora’s
good character. After presenting a number of other witnesses but before presenting
testimony regarding Mora’s “module trustee” status, Mora asked the prosecution if there
would be any rebuttal. The prosecution responded negatively, but explained that there
would be a rebuttal witness available “just in case.” The prosecution elaborated, “I have
no idea what they could rebut, since I haven’t heard any testimony. I have some idea it
might have something to do with being a trustee, but I don’t have any statement.” Mora
did not object to the prosecution’s plan to have a rebuttal witness available in case Mora
presented mitigation evidence concerning his “module trustee” status, and no further
argument on the subject occurred.
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The next court day began with an Evidence Code section 402 hearing regarding
the nature of the mitigation evidence Mora expected to proffer. The prosecution argued
that if Mora presented character evidence, “it’s fair game in rebuttal to me. I’m not
saying what I have or don’t have, but if they put that in, I believe . . . rebuttal testimony
in penalty phase is admissible to correct misleading impressions of the defense case.”
The prosecution further asserted, “I’m not obligated to tell what I might have in store, or
maybe I don’t have anything.” Again, Mora did not object, asserting simply that the
witnesses were not expected to provide character testimony.
The court ruled any mitigating evidence regarding Mora’s status as a “module
trustee” was admissible, but expressly noted that it might open the door to rebuttal
evidence. The prosecution would be restrained in how far to take that rebuttal, but
evidence of “less than positive” “jail behavior” would be admissible. Mora decided
against calling the witnesses who would have testified regarding his “module trustee”
status, and Mora presented no further evidence in mitigation.
b. Discussion
According to Mora, the prosecution’s failure to disclose the identity of the witness
who would have rebutted testimony regarding Mora’s “module trustee” status constituted
error, as did the trial court’s failure to provide a specific ruling regarding the scope of
rebuttal evidence. We have held that “[t]he due process clause requires notice that the
defendant will have the opportunity to discover the prosecutor’s rebuttal witnesses.”
(Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 375.) Even though the discovery
statute does not specify that rebuttal witnesses must be disclosed, “the only reasonable
interpretation of the requirement that the prosecution disclose ‘[t]he names and addresses
of persons the prosecutor intends to call as witnesses at trial’ is that [section 1054.125]
25 In its entirety, section 1054.1 provides, “The prosecuting attorney shall disclose to
the defendant or his or her attorney all of the following materials and information, if it is
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includes both witnesses in the prosecution’s case-in-chief and rebuttal witnesses that the
prosecution intends to call.” (Ibid.)
Although the due process clause commands disclosure of known rebuttal
witnesses, we conclude that no error occurred here. First, Mora raised no objection
before the trial court regarding the prosecution’s failure to disclose its rebuttal witness’s
identity. Accordingly, Mora’s claim of error arising from the failure to so disclose is
forfeited. (See Gutierrez, supra, 45 Cal.4th at p. 819.) Even if the issue was preserved
for our review, we would find no error. Before the penalty phase commenced, the
prosecutor alerted Mora that a rebuttal witness could provide testimony that Mora’s
“module trustee” status was controverted should Mora present testimony about that
status. Mora ultimately decided against presenting evidence about his alleged trustee
status, which the prosecution could not have known. Had the prosecution absolutely
intended to call a witness to rebut the proposed mitigation evidence, the disclosure
requirement may have been triggered. (Izazaga v. Superior Court, supra, 54 Cal.3d at
p. 375.) That triggering would have depended on Mora’s disclosure of the witnesses he
intended to call. Mora’s equivocation on the issue of whether to present evidence about
his “module trustee” status rendered speculative the possibility of the prosecution’s intent
to present a rebuttal witness. The due process clause does not command the disclosure of
all possible witnesses, but only those anticipated. Accordingly, we hold no error resulted
in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be
in the possession of the investigating agencies: [¶] (a) The names and addresses of
persons the prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all
defendants. [¶] (c) All relevant real evidence seized or obtained as a part of the
investigation of the offenses charged. [¶] (d) The existence of a felony conviction of any
material witness whose credibility is likely to be critical to the outcome of the trial. [¶]
(e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of
witnesses or reports of the statements of witnesses whom the prosecutor intends to call at
the trial, including any reports or statements of experts made in conjunction with the case,
including the results of physical or mental examinations, scientific tests, experiments, or
comparisons which the prosecutor intends to offer in evidence at the trial.”
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from the prosecution’s lack of disclosure because the decision to call a rebuttal witness
depended upon the testimony Mora would have presented, had he opted to do so. We
also conclude the trial court did not err by failing to provide a more specific ruling
regarding rebuttal testimony because it was unable to rule more certainly without
knowing what evidence the witness Mora did not call might provide.
Even if the prosecution’s failure to disclose its rebuttal witness was erroneous, any
such error was harmless because there is no reasonable possibility that the error affected
the verdict. (People v. Gonzalez (2006) 38 Cal. 4th 932, 960–961.) “[T]o find prejudice,
we must find both (1) a reasonable possibility defense counsel would have presented the
mitigating evidence . . . and (2) a reasonable possibility the verdict would have been
different had defendant presented the mitigating evidence.” (Id. at p. 961.) The evidence
would have shown, at most, that Mora adjusted well to a custodial setting, becoming a
more rule-abiding person. That evidence would have been tempered by evidence
presented in aggravation that Mora committed an assault in a different custodial setting.
Because the jury may not have given evidence concerning Mora’s “module trustee” status
significant weight in light of the contrasting aggravating evidence, and because in any
event there is not a reasonable possibility that the verdict would have been different had
the evidence been presented, we hold that error, if any, was harmless. (Id. at p. 961.)
6. CALJIC No. 8.85
Mora and Rangel argue that the trial court erred by failing to instruct the jurors, in
addition to CALJIC No. 8.85, with a requested further instruction stating, “However, you
may not double count any ‘circumstances of the offense’ which are also ‘special
circumstances.’ That is, you may not weigh the special circumstance[s] more than once
in your sentencing determination.” Mora and Rangel acknowledge we have consistently
found no prejudicial error in a trial court’s denial of identical requested instructions,
holding that “ ‘in the absence of any misleading argument by the prosecutor or an event
85
demonstrating the substantial likelihood of “double-counting” reversal is not required.’ ”
(People v. Monterroso (2004) 34 Cal. 4th 743, 790, quoting People v. Proctor (1992)
4 Cal. 4th 499, 550.) Although Mora and Rangel suggest the trial court’s and
prosecution’s apparent confusion over applying the prohibition against double-counting
itself demonstrates a substantial likelihood that jurors would misunderstand, they point to
no argument by the prosecution or event that would have misled the jury. (People
v. Monterroso, supra, 34 Cal.4th at p. 790.) Moreover, “[w]e presume that jurors are
intelligent and capable of understanding and applying the court’s instructions.” (People
v. Butler (2009) 46 Cal. 4th 847, 873.) Even if the prosecution and court misunderstood
CALJIC No. 8.85, in light of our presumption that the jurors did not, and because no
argument or event occurred misleading the jury, we need not disturb our long-standing
rule that the trial court did not prejudicially err by refusing to modify CALJIC No. 8.85.
7. Multiple Murder Special Circumstance
Mora and Rangel argue that the multiple murder special circumstance must be
overturned because it violates the Eighth and Fourteenth Amendments. We have
repeatedly rejected similar claims because the multiple murder special circumstance
narrows the class of death-eligible defendants. (People v. Sapp (2003) 31 Cal. 4th 240,
286–287.) “For the multiple murder special circumstance, a defendant must, in the same
proceeding, be convicted not only of first degree murder, but also of ‘more than one
offense of murder in the first or second degree.’ (§ 190.2, subd. (a)(3).)” (People
v. Sapp, supra, 31 Cal.4th at p. 286.) Mora and Rangel argue that the multiple murder
special circumstance is unconstitutionally “wanton or freakish” because it permits a
person who accidentally kills a woman and the nine-week-old fetus she did not know she
was carrying to be given the death penalty, but that same penalty is not applied to a killer
motivated by racial animus who murders several people. (See United States v. Cheely
(9th Cir. 1994) 36 F.3d 1439, 1445.) We rejected this exact argument in People v. Sapp,
86
which Mora and Rangel acknowledge, and they present no reason to disturb our
longstanding conclusion. (People v. Sapp, supra, 31 Cal.4th at p. 287.)
8. Alleged Juror Misconduct
a. Background
Following the penalty verdict, Mora moved for a new penalty trial, arguing that
postverdict discussions with jurors revealed information suggesting misconduct.
According to a declaration executed by Mora’s attorney, those discussions revealed that
Juror No. 2 “formed an opinion that this was an execution” “because the shot was to the
head,” which opinion the juror “based on his military training and experience.” Mora’s
attorney declared that Juror No. 2 “conclude[d] that since this was an execution, [Mora]
should be executed. Once [Juror No. 2] decided this was an execution he did not
consider any other factors.” Mora alleged Juror No. 7 “changed her decision” and voted
in favor of death after learning that “Mora, unlike Rangel committed an execution.”
Based on Juror Nos. 2 and 7’s comments, Mora moved for a new penalty trial. Rangel
joined in the new trial motion.
Mora and Rangel also jointly requested disclosure of juror contact information to
further investigate claims of juror misconduct. Mora and Rangel sought and were
granted a hearing to address disclosure of juror contact information, which was held on
April 27, 1999. Prior to the hearing, the court contacted the jurors and informed them of
Mora and Rangel’s wish for disclosure of their identifying information. Prior to or
during the April 27, 1999, hearing, Juror Nos. 1, 2, 4, 5, 6, 7, 8, 9, and 10 conveyed to the
court their wishes that their identifying information not be shared with the defense. Juror
Nos. 1, 2, 6, and 8 were present in court for the hearing; each confirmed their desire not
to have his or her contact information disclosed. The court asked if Juror No. 2 wished to
speak in court, and Juror No. 2 responded in the negative. Based on the jurors’ wish not
87
to be contacted, the court denied Mora and Rangel access to contact information
concerning those nine jurors.
Juror Nos. 3, 11, and 12 did not respond to the court’s communication regarding
the disclosure of their identifying information. The court provided Mora and Rangel with
the names, addresses, and phone numbers of those three jurors. On May 17, 1999, Mora
moved again for a new trial, and Mora’s attorney submitted a declaration in support
thereof indicating that he spoke with one of the three jurors who permitted the disclosure
of contact information. That juror “did not specifically remember any deliberation
regarding military expertise.” Mora’s attorney declared that the juror also told him the
jurors did not believe the murder would have happened had Mora not paged Rangel that
night. Mora argued a new trial was warranted because improper evidence concerning
Rangel was considered by the jury to permit imposition of the penalty with regard to
Mora. Rangel separately moved for new trial, but did not argue that juror misconduct
supported his request.
The court heard Mora and Rangel’s updated new trial motions on May 27, 1999.
Mora urged the court to grant a new penalty trial based in part on juror misconduct during
penalty phase deliberations, and the inability to contact jurors thereafter. Following
argument, the court denied both Mora and Rangel’s motions for new trial. The court
ruled that Mora’s attorney’s declaration in support of the motion for new trial constituted
inadmissible hearsay, but even if it was capable of consideration, the statement was not
“in and of itself . . . sufficient to demonstrate any misconduct on the part of the jury.”
The court explained that “jurors are not required to discuss or disclose their process . . . .
[A]bsent a showing . . . to demonstrate jury misconduct, the court has to assume there
was none.”
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b. Discussion
Mora and Rangel argue the court erred by denying their motion for new trial based
on jury misconduct. More specifically, they argue the trial court was obliged to hold an
evidentiary hearing once it learned of potential juror misconduct, and its failure to do so
constituted error. We conclude the trial court was under no obligation to hold a hearing,
and neither its failure to do so nor its denial of Mora and Rangel’s motions for new trial
based on juror misconduct constituted error.
“Hearsay evidence offered in support of a new trial motion that is based on alleged
jury misconduct ordinarily is insufficient to establish an abuse of discretion in either
denying the motion or declining to conduct an evidentiary hearing.” (People
v. Manibusan (2013) 58 Cal. 4th 40, 55, citing People v. Dykes (2009) 46 Cal. 4th 731,
810.) Mora argued that the court should nevertheless have granted an evidentiary hearing
because, without access to juror contact information and absent jurors’ willingness to
speak to defense counsel, he was unable to fact-find regarding “representations that had
been made by the jurors at the time of the verdict.”26 Mora and Rangel claim that, even
if hearsay, the content of Mora’s attorney’s declarations made the trial court aware of
potential juror misconduct, triggering a duty to conduct a reasonable inquiry — here, an
evidentiary hearing — to resolve the matter.
Of course, granting a new trial may be warranted if a jury engages in misconduct
that prevents impartial consideration of the case. (People v. Hayes (1999) 21 Cal. 4th
1211, 1255.) Hayes does not, as Mora and Rangel assert, require that a trial court
conduct an evidentiary hearing once the specter of misconduct is raised. “When
26 We note that the People assert that Rangel forfeited any right to raise this issue on
appeal because he did not raise juror misconduct in his motion for new trial or interpose
an objection based on this ground at trial. Rangel did, however, join Mora’s initial new
trial motion based on alleged juror misconduct. Because we conclude that the trial court
did not err by declining to hold an evidentiary hearing or by denying the motions for new
trial based on juror misconduct, there is no need to reach the issue of Rangel’s potential
forfeiture.
89
allegations of juror misconduct . . . raise a presumption of prejudice” a court may, but is
not required to, conduct an evidentiary hearing. (Ibid.) In contrast, when a court
becomes aware of the possibility of misconduct, its only obligation is to “ ‘ “make
whatever inquiry is reasonably necessary” ’ to resolve the matter.” (Ibid., quoting People
v. Hedgecock (1990) 51 Cal. 3d 395, 417.) This obligation is triggered only when the
defense provides evidence strongly suggestive of prejudicial misconduct. (Hayes, supra,
21 Cal.4th at p. 1255.) As we acknowledged in Hayes and have reiterated many times,
hearsay is ordinarily “not sufficient to trigger the court’s duty to make further inquiries
into a claim of juror misconduct.” (Id. at p. 1256.) In Hayes, because the only evidence
of juror misconduct was the statement of counsel regarding purported out-of-court
statements by a juror who did not herself provide any declaration, we concluded the trial
court did not abuse its discretion in denying a motion for a new trial. (Ibid.)
Here, too, the only support for the motion for a new trial based upon juror
misconduct are defense counsel’s statements containing hearsay accountings of what
jurors purportedly said. A trial court does not abuse its discretion in declining to hold an
evidentiary hearing or denying a motion for a new trial when the only basis to grant such
a hearing or trial is, as in this case, a defense attorney’s hearsay assertions. (People
v. Manibusan, supra, 58 Cal.4th at p. 55.) Mora and Rangel’s arguments to the contrary
are unavailing. They contend they had no access to jurors to obtain more reliable
statements concerning misconduct, but the second declaration reveals that argument to be
untrue. In support of the second new trial motion, Mora’s counsel stated that he spoke
with one of the three jurors who consented to the disclosure of contact information. That
admission alone is sufficient to undermine Mora and Rangel’s contention on appeal that
they had no access to the jurors to probe the veracity of Juror Nos. 2 and 7’s purported
statements. They had access to 25% of the jurors, but it appears those jurors — or the
one with whom Mora’s attorney spoke — did not provide a statement in support of their
assertion of juror misconduct. That juror apparently recalled nothing of the statements
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about execution-style murder or military affiliation allegedly made by Juror No. 2. The
trial court thus reasonably concluded that the only basis for new trial was discountable
hearsay, and that the content of those hearsay statements revealed no misconduct. The
court was not obliged to conduct an evidentiary hearing when the only support for such a
hearing was hearsay, and its denial of Mora and Rangel’s motion for a new trial did not
constitute an abuse of discretion. (Ibid.)
9. Other Challenges to California’s Death Penalty Law
Mora and Rangel raise a number of challenges to California’s death penalty law,
each of which they acknowledge we have previously rejected. While Mora raises each
claim for exhaustion purposes only, Rangel contends that even if each claim has been
separately rejected, we have not considered these challenges cumulatively, and doing so
reveals an overbroad sentencing scheme lacking in procedural safeguards. Not only is
Rangel incorrect in this regard (see People v. Simon (2016) 1 Cal.5th 98, 150 (Simon)),
but because we reject each challenge to California’s death penalty sentencing scheme, we
also find no basis to conclude that the challenges collectively warrant invalidating the
scheme.
Section 190.2 is not impermissibly broad in violation of the Fifth, Sixth, Eighth, or
Fourteenth Amendments to the United States Constitution for failing to narrow the class
of death-eligible murders. (Simon, supra, 1 Cal.5th at p. 149.) The 1978 death penalty
law did not have the intended or practical effect of making essentially all murders death
eligible. (People v. Jennings (2010) 50 Cal. 4th 616, 688.) As addressed previously,
section 190.3, subdivision (a), permitting a jury to consider the circumstances of the
offense in sentencing, does not result in arbitrary or capricious imposition of the death
penalty in violation of the Fifth, Sixth, Eighth, or Fourteenth Amendments to the United
States Constitution. (Simon, supra, 1 Cal.5th at p. 149.)
91
The death penalty statutory scheme is not unconstitutional for failing to require the
jury find beyond a reasonable doubt that aggravating factors outweigh mitigating factors.
(Simon, supra, 1 Cal.5th at p. 149.) California’s death penalty statutory scheme does not
run afoul of Apprendi and its progeny for failing to so require. (Simon, supra, 1 Cal.5th
at p. 149.) There is no federal constitutional requirement that the jury make written
findings regarding factors in aggravation. (Ibid.)
Neither section 190.3 nor the federal constitution require that a comparison
between the instant case and similar cases be evaluated with respect to the proportionality
of the sentence imposed. (Simon, supra, 1 Cal.5th at p. 149.) “During the penalty phase,
the jury may consider a defendant’s unadjudicated criminal activity and need not
unanimously agree beyond a reasonable doubt that such criminal activity occurred.”
(Id. at p. 150.)
We have consistently concluded there is no burden of proof at the penalty phase.
(People v. Gamache (2010) 48 Cal. 4th 347, 406.) The trial court is under no obligation
to instruct the jury that neither party bears the burden of proof. (People v. Leonard,
supra, 40 Cal. 4th 1370, 1429.)
The inclusion in the list of potential mitigating factors of the adjectives
“ ‘extreme’ ” and “ ‘substantial’ ” does not serve as a barrier to the jury’s consideration
of mitigating factors in violation of the federal constitution. (People v. Leonard, supra,
40 Cal.4th at p. 1429, citing People v. Boyer, supra, 38 Cal.4th at p. 484.) The jury need
not be instructed that factors in mitigation may be considered only in mitigation. (People
v. Leonard, supra, 40 Cal.4th at p. 1429.) No error flows from a failure to instruct the
jury that if mitigating factors outweigh aggravating factors, life is the appropriate
sentence. (People v. Jones (2017) 3 Cal.5th 583, 620.) Mora’s assertions to the contrary,
as well as his argument that CALJIC Nos. 8.85 and 8.88 fail to provide the jury with the
guidance necessary for imposition of the death penalty, are unavailing. (Id. at pp. 619–
620.) Likewise, Mora’s claim that the jury should have received an instruction that there
92
is a presumption in favor of life without parole is incorrect. (Id. at p. 620.) The court
was not required to instruct that the jury’s findings in favor of any factor in mitigation be
unanimous. (Ibid.)
Finally, we have consistently rejected claims that international norms render the
death penalty unconstitutional, and do so again here. (Simon, supra, 1 Cal.5th at p. 150.)
We have also consistently concluded that “California does not deny capital defendants
equal protection of the law by providing certain procedural protections to noncapital
defendants that are not afforded to capital defendants.” (Ibid.)
10. Cumulative Error
Mora and Rangel contend reversal is warranted because of the cumulatively
prejudicial effect of penalty phase errors. To the extent any errors occurred, none were
prejudicial. We conclude no error or assumed error in the penalty phase, whether
considered separately or collectively, merits reversal. (People v. Clark (2016) 63 Cal. 4th
522, 643.)
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III. DISPOSITION
We affirm the judgment.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
DETJEN, J.*
* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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CONCURRING AND DISSENTING OPINION BY LIU, J.
I respectfully dissent from the conclusion that there was sufficient evidence
to sustain the attempted robbery special circumstance. (Pen. Code, § 190.2,
subd. (a)(17(A); see maj. opn., ante, at pp. 54–56.) “ ‘[T]o prove a felony-murder
special-circumstance allegation, the prosecution must show that the defendant had
an independent purpose for the commission of the felony, that is, the commission
of the felony was not merely incidental to an intended murder.’ ” (People v.
Horning (2004) 34 Cal. 4th 871, 907 (Horning).) As with the felony-murder rule,
the purpose of this special circumstance is to make eligible for the most severe
punishment those defendants who escalate a serious felony into a murder, thereby
attempting to deter such escalation. Here the prosecution had to prove that the
crime was “a murder in the commission of robbery” and not “a robbery in the
commission of murder.” (Ibid., citing People v. Green (1980) 27 Cal. 3d 1
(Green).) “The provision thus expressed a legislative belief that it was not
unconstitutionally arbitrary to expose to the death penalty those defendants who
killed in cold blood in order to advance an independent felonious purpose, e.g.,
who carried out an execution-style slaying of the victim of or witness to a holdup,
a kidnaping, or a rape.” (Green, at p. 61, italics added.)
The facts do not support a finding that defendants murdered their victims
“in order to advance” a robbery. (Green, supra, 27 Cal.3d at p. 61; see maj. opn.,
ante, at pp. 3–4, 55–56 [recounting details of the crime].) Although there is
1
sufficient evidence to support the jury’s finding that defendants intended to rob the
victims, there is no credible evidence from which the jury could conclude beyond
a reasonable doubt that defendants murdered the victims in order to advance an
independent felonious purpose of robbing them. Rangel’s initial contact with one
of the victims announced his and Mora’s lethal intent: “Do you want to go to
sleep?” Neither his further statement “check yourself, check yourself, give me
your wallet” nor Mora’s similar request to the other victim suggests that their
primary purpose in the encounter was to rob the victims. As the record shows, the
victims attempted to comply with defendants’ demands for their wallets,
defendants shot the victims before the victims could comply, and defendants then
fled without the wallets. There is no evidence that some intervening event caused
defendants to abandon their plan to rob the victims after murdering them, nor is
there evidence that defendants’ motive to kill the victims sprang from the
attempted robbery. The record here shows an attempted “robbery in the
commission of murder.” (Horning, supra, 34 Cal.4th at p. 907.) Viewing the
evidence in the light most favorable to the verdict, there is no “ ‘ “ ‘evidence that
is reasonable, credible, and of solid value such that a reasonable jury could
find’ ” ’ ” beyond a reasonable doubt (People v. Smith (2018) 4 Cal.5th 1134,
1174) that the murders were committed in order to advance the robberies.
I would therefore reverse the attempted robbery special circumstance.
Nonetheless, I agree that the death sentence must be affirmed. The jury made a
valid finding on the multiple-murder special circumstance, and the jury was
permitted to consider at the penalty phase all the facts and circumstances
underlying the murders. Accordingly, the invalidation of one of the two special
2
circumstances does not warrant reversal of the death sentence. (See People v.
Hajek and Vo (2014) 58 Cal. 4th 1144, 1186–1187.)
LIU, J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Mora and Rangel
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S079925
Date Filed: July 2, 2018
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Victoria M. Chavez
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Peter R. Silten,
Deputy State Public Defender, for Defendant and Appellant Joseph Adam Mora.
Tara K. Hoveland, under appointment by the Supreme Court, for Defendant and Appellant Ruben Rangel.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter R. Silten
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300
Tara K. Hoveland
1034 Emerald Bay Road, #235
South Lake Tahoe, CA 96150
(530) 541-2505
John Yang
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-9555