People v. Gonzalez ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK CHRISTOPHER GONZALEZ,
Defendant and Appellant.
S163643
Los Angeles County Superior Court
NA071779
December 2, 2021
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, and Jenkins concurred.
PEOPLE v. GONZALEZ
S163643
Opinion of the Court by Groban, J.
A jury found defendant Frank Christopher Gonzalez
guilty of first degree murder and attempted second degree
robbery. (See Pen. Code, § 187, subd. (a), former §§ 189, 211,
664.)1 The jury also found true a robbery-murder special-
circumstance allegation and an allegation that defendant
personally and intentionally discharged a firearm in committing
the murder. (Former §§ 190.2, subd. (a)(17), 12022.53, subds.
(b), (c), (d).) At the penalty phase, the jury returned a death
verdict, and the trial court entered a judgment of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) We affirm the judgment.
I. BACKGROUND
A. Guilt Phase
1. The shooting and initial investigation
At around 6:00 a.m. on March 28, 2006, Genaro Huizar
arrived at his home on Eucalyptus Avenue in Long Beach. After
parking his car, he observed two men on bicycles ride past him.
One of the bicycles looked like a “10-speed”; the other bike was
smaller. Huizar continued walking and entered his home.
Moments later he heard between three and five gunshots.
1
Unless otherwise noted, all further statutory citations are
to the Penal Code.
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At around 5:45 a.m. that same day, two men were
delivering newspapers on Eucalyptus Avenue when they came
upon a woman lying motionless on the ground lying in front of a
car with its trunk open. They attempted to perform CPR on the
woman, later identified as Los Angeles County Sheriff’s
Department Deputy Maria Rosa, and called 911.
Officer Rosa lived in a house on Eucalyptus Avenue with
her partner, Los Angeles County Sheriff’s Department Detective
Jenny Martin, and Martin’s nephew. On the morning of the
shooting, Martin was awakened by her nephew, who told her
Rosa was “on the floor outside.” Martin saw Rosa lying on the
ground outside the house and called 911.
Long Beach Police Department Officer Robert Davenport
responded to the 911 calls. When Davenport arrived at the
scene he saw a red BMX-style bicycle near Rosa’s body, which
appeared to have a gunshot wound. The body was lying in a
driveway near a car with its trunk open. Davenport looked
inside the trunk and saw several items including a gun, boots
and a purse. The purse was partially open.
Long Beach Police Department Detectives Patrick O’Dowd
and Bryan McMahon inspected the trunk, which contained a
black gym bag with a nine-millimeter Heckler and Koch
handgun next to it, along with a purse and a wallet. The keys
to the car were in the keyhole of the trunk. They also found
Rosa’s police badge, which was closed, and a firearm holster.
Detective McMahon testified that the gun had a live round
jammed into it that obstructed the chamber. He believed that
the gun was jammed due to someone having tried to get a round
into the chamber. Los Angeles County Sheriff’s Department
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Firearms Identification Expert Edmund Anderson agreed that
the gun had malfunctioned, jammed, and failed to fire.
Los Angeles County Medical Examiner Paul Gliniecki
conducted an autopsy the day after the murder. He identified
two gunshot wounds, one to Rosa’s upper right shoulder and a
fatal wound to her left side abdomen. Both bullets were .22-
caliber munitions. Gliniecki concluded that Rosa had died from
internal bleeding caused by the gunshots.
Long Beach Police Department Detective David Rios
secured surveillance video from a Bank of America located near
the shooting and reviewed footage that had been captured
between 4:00 and 7:00 a.m. on the day of the murder. The video
showed two men riding on bicycles between 5:25 and 5:30 a.m.
Rios generated still images of the two men, which he turned over
to investigating officers. Detective O’Dowd used the images in
a flier offering a reward for information about the suspects.
2. The DNA evidence
Kari Yoshida, a criminalist for the Los Angeles County
Sheriff’s Department, was able to generate a DNA profile from
samples obtained from the handlebar of the bicycle found at the
scene of the crime. The profile was entered into the “Combined
DNA Index System (CODIS), a nationwide database that
enables law enforcement to search DNA profiles collected from
federal, state, and local collection programs.” (People v. Buza
(2018) 4 Cal.5th 658, 666.)
In July of 2006, the California Department of Justice
informed personnel investigating Rosa’s murder that Gonzalez
was a potential match. Yoshida’s colleague, Juli Watkins,
obtained reference samples from Gonzalez and generated a DNA
profile. She then compared his profile to the profile Yoshida had
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generated from the bicycle and concluded Gonzalez was a
possible contributor.
At trial, Watkins testified about her and Yoshida’s DNA
analysis. She further testified that Gonzalez could not be ruled
out as a possible contributor to the sample found on the bike.
Using a conservative estimate, she testified there was a one in
one billion chance that a random person would share the same
DNA typing with the sample found on the handlebar.
3. Undercover operation targeting Gonzalez and Justin
Flint
Based on the DNA evidence and information obtained by
confidential informants, law enforcement personnel began to
focus their investigation on Gonzalez and a man named Justin
Flint. Detective O’Dowd aided the Los Angeles County Sheriff’s
Department in conducting an undercover operation involving
the two suspects, who were both incarcerated on charges
unrelated to Rosa’s shooting. As part of the operation, a bus
outfitted with recording devices picked up Gonzalez and Flint at
their respective prisons along with two groups of undercover
officers posing as inmates, and then transported them to the Los
Angeles County jail. Once the bus arrived at the county jail,
Gonzalez and Flint were initially placed in separate cells that
were also outfitted with recording devices. Undercover officers
rotated in and out of each cell to create the impression that they
were being processed. Eventually, Gonzalez and Flint were
placed in the same cell.
An undercover agent that participated in the operation
testified that when Gonzalez entered the bus and saw Flint, he
became “excited in a bad way” and “almost lost control of his
emotions.” Another agent who was on the bus heard Gonzalez
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talking to Flint about why they were being transported to Los
Angeles County jail and whether it was related to the “bicycle
shit.” In the holding cell, Gonzalez speculated that the arrest
might be related to a crime involving a car, which one of the
undercover detectives understood to mean a “carjacking.”
Gonzalez also speculated whether the police could “squeeze”
Flint into talking about the crimes.
Detective Javier Clift initiated a conversation with
Gonzalez and suggested that he must have been detained
because evidence was left at the crime scene. Gonzalez
responded, “No, I cleaned and wiped and everything. It’s just
going to be he say she say.” When asked about the murder
weapon, Gonzalez told Clift the gun he used for the crime was
“swimmin” (sic) and then inquired whether getting rid of the
evidence was “a plus.” Gonzalez told Clift there were no
footprints left at the scene because he had been on concrete.
Gonzalez then spoke of another incident, which Clift described
as a “carjacking.” Gonzalez claimed he had left no evidence
behind that would connect him to the stolen car. Gonzalez also
described himself as a “cappa,” which Clift understood to refer
to a person who had committed a crime that would subject him
to capital punishment. Gonzalez mentioned disfiguring his face
so that he could not be identified in a lineup, and having “special
privileges” among the inmates, which Clift understood to be a
reference to having committed a very serious crime such as
killing a police officer.
Detective Miguel Beltran also spoke to Gonzalez. When
Beltran asked about a murder that Gonzalez had supposedly
committed, Gonzalez said “it was a hooda,” which Beltran
interpreted to be the slang for a police officer, and described the
victim as a female. Gonzalez also told Beltran about a bike that
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he had left at the scene and discussed creating an alibi to make
the police believe the bike did not belong to him.
Gonzalez told another undercover agent, Detective
Noyola, that he shot a female police officer after she had showed
him her badge. Noyola also testified that when he was in the
holding cell, Gonzalez told Flint not to talk to anyone “because
[they were] going to ride this all the way out.” While in the
holding cell with Noyola, Flint said that if the “bitch” had “given
up her wallet she wouldn’t have been killed,” but Gonzalez “bet
[the police] d[id]n’t have anything about [the] case.”
After Gonzalez and Flint were processed and provided
notice of the charges against them, including murder, they were
put into a holding cell with Detective Manuel Avina. Avina
talked to Gonzalez about the worst sentence for Flint, to which
Gonzalez responded “life.” Gonzalez and Flint wondered if
someone was snitching and if they had to kill any witnesses who
might testify. Gonzalez wanted to “keep Justin Flint limited in
his statements” and told him to “shut up” about the murder.
They strategized about how to behave during the investigation.
4. Investigation of Jessica Rowan and Celina Gonzalez
In addition to conducting the undercover operation, law
enforcement obtained an order authorizing a wiretap on six
different phone lines that were affiliated with Gonzalez and his
acquaintances. Pursuant to those wiretaps, police intercepted
conversations between Jessica Rowan, who had been Gonzalez’s
girlfriend for 12 years and was the mother of his two children,
and Gonzalez’s sister, Celina Gonzalez. During a phone call,
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Rowan and Celina2 discussed fabricating an alibi for Gonzalez.
They agreed that they would tell police they had been at a
barbeque with Gonzalez the night before the shooting and that
Gonzalez then slept at Rowan’s house and stayed with her the
following morning.
After having intercepted those communications,
Detectives McMahon and O’Dowd interviewed Rowan, who told
them she was at a barbeque with Gonzalez the night before the
shooting and was in bed with him on the morning of the
shooting. While in Rowan’s presence, O’Dowd acted as if he had
received a call on his cell phone and discussed “divers going into
the ocean.” After getting off the phone, O’Dowd told his partner
“it was in pieces,” but did not specify what object he was talking
about. Police also interviewed Celina, who likewise passed
along the alibi that she and Rowan had discussed during their
call.
After her police interview, Rowan visited Gonzalez in jail
and held up a note for him to read explaining the alibi she and
Celina had created. The note also stated that divers were
searching for a gun. When Gonzalez read the note, he
exclaimed, “Oh fuck.” During subsequent phone conversations,
Gonzalez told Rowan he committed the crime with the “White
boy” he had purchased a computer from, whom Rowan identified
as Flint. Gonzalez also directed Rowan to talk to his friend
“Psycho” and tell him to deal with any potential snitches.
Rowan understood this to mean that Psycho should kill any
potential snitch. As directed, Rowan called Psycho and told him,
2
Because Celina Gonzalez has the same last name as the
defendant, for purposes of clarity and simplicity we refer to her
by her first name.
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“If anything happens, you know what to do.” Psycho responded
“OK,” and told Rowan not to talk about anything related to the
murder over the phone.
Police eventually arrested Rowan and Celina and charged
them with obstruction of justice for having fabricated a false
alibi. Rowan and Celina both pleaded guilty to conspiracy to
obstruct justice and their pleas included an agreement to testify
against Gonzalez. Though their testimony would be considered
in determining their sentence, the plea did not promise leniency
in exchange for testifying.
At trial, Rowan testified that around the time of the
shooting, Gonzalez told her he had “done something” in Long
Beach and had to leave the city. He explained that he and a
friend had tried to rob a woman to get money for drugs and a
gun went off. He had demanded the victim’s money and tried to
grab her purse, but a struggle ensued. During the struggle, the
woman pulled out a gun and a police badge and a gun
discharged. He then ran from the scene.
Rowan further testified that a day or two after the
shooting, she went to Celina’s house with Gonzalez. Rowan
stated that Gonzalez was acting nervous and strange and had
said that he wanted to go to Long Beach immediately. Gonzalez
then retrieved a newspaper and showed them a story about the
shooting of Rosa, which included her picture, and stated, “I told
you I had done something in Long Beach.” A few days later
Gonzalez asked to borrow Rowan’s car, telling her he was
driving to the beach to get rid of something. When he returned,
Gonzalez told her he had gotten rid of the gun, explaining that
he had sanded it down and cut it into pieces.
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At some point after Gonzalez was taken into custody,
Celina showed Rowan an article on the internet about the
murder that included photographs of two men riding bicycles.
She and Celina were worried that people would be able to
identify Gonzalez in the picture from his tattoos.
Rowan also acknowledged during her testimony that she
had been charged with obstruction of justice and that she and
Celina had fabricated an alibi that they passed along to the
police. She explained that her phone conversations with Celina
and her jailhouse conversations with Gonzalez had been
surreptitiously recorded. She also acknowledged that she had
cooperated with law enforcement, signed a proffered statement
attesting to statements Gonzalez had made about the crime and
entered into an agreement to tell the truth at trial.
Celina provided testimony that was corroborative of much
of Rowan’s testimony. Like Rowan, Celina acknowledged she
had been charged with obstruction of justice after the police
intercepted a conversation in which she and Rowan had
discussed fabricating an alibi. She also testified about the
incident involving the newspaper that occurred at her house,
explaining that Rowan and Gonzalez had been visiting her and
Gonzalez was “walking around nervous.” He went outside,
retrieved a newspaper, and started “flipping out.” There was a
picture of Rosa on the front page of the paper. Gonzalez then
repeatedly stated, “this is her” and that “it was a robbery that
went wrong.”
Celina also testified that she told police Gonzalez had said
he thought he shot a female police officer. He also stated that
the shooting had occurred on “Eucalyptus” and that he
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approached the woman on his bicycle. He had tried to rob her
because he needed money for drugs.
Gonzalez did not present any evidence at the guilt stage.
B. Penalty Phase
1. Prosecution’s evidence
At the penalty phase, the prosecution presented evidence
of a number of robberies Gonzalez had allegedly committed in
1994. A witness testified about an armed robbery at a
restaurant in Long Beach during which a young Hispanic male
had pointed a firearm at her boyfriend and demanded his wallet.
Another witness testified that he and three others had been in
a parking lot located in Long Beach when three individuals
robbed them at gunpoint. A liquor store owner and his brother
testified that they were robbed inside their store at gun point by
three individuals, one of whom fired a shotgun as he was fleeing.
A man described being robbed at gunpoint by three Latino men
while waiting in his car to use an ATM. Two Baskin Robbins
employees described being robbed inside a Long Beach store by
three armed men. A police officer who had investigated the
string of robberies testified that several of the victims had
identified Gonzalez as the perpetrator. A second investigating
officer testified that Gonzalez admitted he had committed the
four robberies and that he was “the one that usually holds the
gun in the robbery.” A district attorney’s investigator described
Gonzalez’s admission to additional robberies committed during
the same time period.
The prosecution also presented evidence of violent crimes
Gonzalez had allegedly committed in 2006. A witness described
an incident outside a restaurant in Downey in which a person
had fired six or seven gunshots in the direction of a vehicle that
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Opinion of the Court by Groban, J.
was driving away. Additional testimony indicated that the
person who was shot at was dating Rowan and that Gonzalez
had coerced Rowan into luring the man to the restaurant.
Another witness described suffering five gunshot wounds
during a separate incident in Long Beach. The victim was
sitting on his porch when two Hispanic men came around the
corner; one of them yelled “motherfucker this is BP,” a reference
to “Barrio Pobre” street gang, and began shooting. An
investigating detective testified that the shooting was part of an
ongoing gang dispute, and that Gonzalez was a known member
of Barrio Pobre. A criminalist testified that shell casings from
the Downey shooting, the Long Beach shooting, and a third
shooting had been fired from the same gun.
An additional witness testified that Gonzalez had pointed
a gun at him and taken his keys during a carjacking. Rowan
testified that Gonzalez had made statements to her about
stealing a car, which she had seen him drive. The statements
that Gonzalez made to Rowan about the car theft and the vehicle
that she had seen him driving matched the victim’s description
of the carjacking incident.
The prosecution presented additional testimony about
several incidents that occurred while Gonzalez was incarcerated
in 2007. A deputy testified that when he was doing searches of
inmates before they came to court, Gonzalez’s cell door was
mistakenly left open, and he attacked the deputy. Another
deputy described an incident where a new inmate shouted to
Gonzalez that he wanted to attack a correctional officer, and
Gonzalez shouted back that he would like to help “put another
notch on my belt.”
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The prosecution also presented extensive victim impact
evidence that included testimony from several of Rosa’s friends
and colleagues. An officer who worked with Rosa testified that
she was a caring person who took pride in her work. Another
witness described an instance when Rosa helped her after an
accident as exemplary of Rosa’s willingness to help others.
Other friends and colleagues testified about Rosa’s dedication to
her work, her bright and kind personality, and the sense of loss
they had felt after Rosa’s death.
The prosecution also presented two family members as
witnesses. Officer Martin, who was Rosa’s longtime partner,
described how they had met, their plans for adopting a child and
Rosa’s early life in Mexico and then the United States. She
described the effort Rosa had put in to get a college degree and
to become a police officer. She also described her profound sense
of loss when Rosa died. Rosa’s sister described their close sibling
relationship and Rosa’s early life. She also described a period of
time when Rosa and Martin took care of the sister’s children so
that the children might have a better life.
Finally, over an objection from the defense, the
prosecution played an eight-minute victim impact video. The
video included emotional descriptions of Rosa by family, friends,
and colleagues, some of whom had also testified. At certain
points in the video, individuals were shown standing in a
cemetery while they described Rosa. At other times, their
descriptions were played over photo montages of Rosa. Soft
music played in the background throughout.
2. Defense’s evidence
Gonzalez’s paternal aunt testified that Gonzalez’s father
had been in prison since Gonzalez was an infant and was
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currently incarcerated for murder. Two of her other brothers
(Gonzalez’s uncles) died in prison and a third was a gang
member. When Gonzalez was a child, his mother began a
relationship with another man who introduced her to heroin and
his mother eventually became an addict. The aunt further
testified that although she had not seen Gonzalez since he was
a child, she loved him and believed he was a “good kid.” She also
showed a picture of Gonzalez’s three children.
One of Gonzalez’s paternal uncles described his criminal
and family history. The uncle had gone to prison as an accessory
to the murder Gonzalez’s father was incarcerated for. Like other
members of the Gonzalez family, the uncle and Gonzalez’s
father were active gang members for many years. The uncle saw
Gonzalez recruited into a gang and was unable to stop it. He
believed that Gonzalez had lacked a positive role model and that
his mother was indifferent to whether her son spent his
childhood on the street.
Another paternal aunt testified that Gonzalez’s father had
a drug problem that led to his incarceration when Gonzalez was
three years old. After Gonzalez’s father went to prison and his
mother had started using heroin, Gonzalez went to live with the
aunt for about eight months and improved in school. But after
that brief period, he returned to living with his mother in a
roach-infested building controlled by gangs. Gonzalez was
sentenced to the California Youth Authority a few years after
leaving his aunt’s care. She told the jury that she did not want
Gonzalez put to death, that she loved him, and that she felt he
was a part of her.
Gonzalez’s mother testified about her son’s upbringing.
His biological father had a drug problem but visited Gonzalez
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and seemed to love him. She confirmed that she lived with
another man after Gonzalez’s father went to prison and had
started regularly using heroin with the man. The mother stated
that Gonzalez had performed well in school as a child but started
getting into trouble as a teenager and became an active gang
member around the age of 12 or 13. She told the jury that she
loved her son and that he was a good father and a good son.
Rowan described her history with Gonzalez and his drug
problem. They had raised three children together, which
included two children he had fathered and a third child who had
a different father; Gonzalez treated all three of the children well.
Rowan explained that after Gonzalez was released from the
California Youth Authority he did not know how to get a job or
how to get around on his own. He had a serious drug problem
that he supported through occasional jobs and by committing
crimes. On cross-examination, Rowan admitted Gonzalez was
often violent with her and stole purses as a means of supporting
himself.
Gonzalez’s father testified that he had not seen his son
since he went to prison when Gonzalez was three years old.
Gonzalez’s father had gone to the California Youth Authority for
armed robbery at the age of 17, had a drug problem and was
involved in gangs. He had communicated occasionally with
Gonzalez by mail but was never in a position to provide paternal
guidance.
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II. DISCUSSION
A. Guilt Phase Issues
1. Sufficient evidence supports the attempted robbery
conviction
Gonzalez argues that his conviction for attempted robbery
must be overturned because there was insufficient evidence
apart from his own out-of-court statements to satisfy the corpus
delicti rule. This rule, which “has [its] roots in the common law”
(People v. Alvarez (2002) 27 Cal.4th 1161, 1169 (Alvarez)),
precludes “convictions for criminal conduct not proven except by
the uncorroborated extrajudicial statements of the accused.
[Citations.] [It] is intended to ensure that one will not be falsely
convicted, by his or her untested words alone, of a crime that
never happened.” (Ibid., fn. omitted.) “ ‘The amount of
independent proof of a crime required [to satisfy the corpus
delicti rule] is quite small.’ [Citation.] The prosecution need not
adduce ‘independent evidence of every physical act constituting
an element of an offense.’ [Citation.] Instead, it need only make
‘some indication that the charged crime actually happened,’ so
as to ensure ‘that the accused is not admitting to a crime that
never occurred.’ ” (People v. Krebs (2019) 8 Cal.5th 265, 317
(Krebs).) “The independent proof may be circumstantial and
need not be beyond a reasonable doubt, but is sufficient if it
permits an inference of criminal conduct, even if a noncriminal
explanation is also plausible.” (Alvarez, at p. 1171.) We have
previously applied the corpus delicti rule to inchoate crimes
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such as attempted robbery. (See People v. Ray (1996) 13 Cal.4th
313, 342 (Ray ).)3
Gonzalez contends that apart from his own extrajudicial
statements, there was insufficient evidence to permit an
inference that there was an attempt to rob Rosa. Robbery is
defined as “the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.” (§
211.) An attempted robbery consists of two elements: (1) the
3
Under the common law, the corpus delicti rule had both
an evidentiary and a substantive component. As an evidentiary
matter, the defendant’s extrajudicial statements were
inadmissible to show a crime had been committed until some
additional quantum of evidence was supplied. As a substantive
matter, the rule was as stated above, i.e., “every conviction must
be supported by some proof of the corpus delicti aside from or in
addition to [the defendant’s own] statements, and that the jury
must be so instructed.” (Alvarez, supra, 27 Cal.4th at p. 1165,
italics omitted; see id. at pp. 1168–1170.) In Alvarez, we held
that the “ ‘Right to Truth-in-Evidence’ provision of the
Constitution[,] [e]nacted as part of Proposition 8 in 1982”
(People v. Guzman (2019) 8 Cal.5th 673, 677 (Guzman)),
abrogated the evidentiary aspect of the corpus delicti rule, but
not its substantive aspect nor its requirement that when the
prosecution relies on a defendant’s extrajudicial statements, the
jury must be instructed on the requirement of independent
proof. (Alvarez, at p. 1165.) Thus, even after Proposition 8, the
corpus delicti rule requires “an instruction to the jury that no
person may be convicted absent evidence of the crime
independent of his or her out-of-court statements” and “allows
the defendant, on appeal, directly to attack the sufficiency of the
prosecution’s independent showing.” (Id. at p. 1180.) There is
no dispute that the jury in this case received an appropriate
instruction regarding the rule.
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specific intent to commit the robbery, and (2) a direct,
unequivocal, overt act (beyond mere preparation) toward its
commission. (People v. Dillon (1983) 34 Cal.3d 441, 452–453.)
Given the low quantum of proof that is required, we are
satisfied that the prosecution provided the “ ‘minimal’ ” amount
of independent evidence necessary to satisfy the corpus delicti
rule. (People v. Jones (1998) 17 Cal.4th 279, 301 [“we have
described [the necessary] quantum of evidence as ‘slight’
[citation] or ‘minimal’ ”].) The evidence at trial showed two men
were seen riding bicycles in a residential neighborhood early in
the morning and gunshots were heard shortly thereafter.
Around that time, surveillance video in the area captured
images of Gonzalez on a bicycle. Rosa’s body was found near her
car, which was parked in the driveway of a residence with the
trunk open and the keys hanging from the keyhole. A bicycle
was lying on the ground nearby. Several items were inside the
trunk, including Rosa’s purse, which was partially open, and a
firearm with a bullet that appeared to have been jammed inside
it, and Rosa’s police badge. There was no evidence of any sexual
or other form of motive for the confrontation that led to Rosa’s
death, nor was there any evidence that the perpetrators knew
the victim. A jury might reasonably conclude this evidence
provides at least “ ‘ “some indication” ’ ” (Krebs, supra, 8 Cal.5th
at p. 317) that the assailants surprised Rosa while she was
standing near the open trunk of her car, which contained a
partially open purse, and then forcibly attempted to take her
property, but killed her in an ensuing struggle and then fled.4
4
At trial, the prosecution presented evidence that Flint told
an undercover agent Rosa would be alive if she had given up her
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Our conclusion finds support in prior cases that addressed
similar corpus delicti claims. In Ray, supra, 13 Cal.4th 313, for
example, we considered whether there was sufficient evidence
independent of defendants’ statements to support the jury’s
finding that an assault had occurred during an attempted
robbery. The evidence showed the two defendants, both armed
and dressed in fatigues, had approached the victims as they
exited an entertainment venue. The defendants then moved the
victims “to a more obscure area of the parking lot.” (Id. at p.
342.) When one of the victims resisted, he was shot; the second
victim then attempted to flee and was also shot. We concluded
the jury could reasonably infer from such evidence that “the
perpetrators intended to steal the victims’ property at gunpoint”
“even though the evidence [did] not eliminate the inference that
additional or different crimes were intended.” (Ibid.)
In People v. Valencia (2008) 43 Cal.4th 268 (Valencia), we
held that testimony showing an “apartment door had been
broken open, and one of the persons inside was bleeding from a
. . . head injury” was sufficient to “permit[] an inference of
robbery.” (Id. at p. 297.) We explained, “[a] broken-open
apartment door and a man inside with a bleeding head wound
suggest robbery, a very common purpose for a home invasion.
wallet. Although this statement provides clear corroboration
that the murder occurred during an attempted robbery, multiple
courts have held that “the corpus delicti [cannot] be established
by the extrajudicial statements of a codefendant.” (Munoz v.
Superior Court (2020) 45 Cal.App.5th 774, 779; see Jones v.
Superior Court (1979) 96 Cal.App.3d 390, 397.) Because we
conclude there was sufficient evidence to satisfy the corpus
delicti rule without reliance on Flint’s statement, we need not
address whether an accomplice or codefendant’s extrajudicial
statements may satisfy the corpus delicti rule.
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Opinion of the Court by Groban, J.
Indeed, few other possible explanations for these events come to
mind, and none so likely as robbery. These might not be the only
possible inferences, but they are certainly reasonable
inferences, which is sufficient.” (Ibid., italics omitted.)
The evidence here — that two men with no relation to the
victim were seen riding bicycles near the crime scene early in
the morning, a bicycle was abandoned near the victim’s body
and her belongings, which included a jammed firearm and a
police badge, were in an open car trunk and her purse was
partially open — is at least as suggestive of robbery as the
evidence at issue in Ray and Valencia.5 While the evidence does
not preclude that the perpetrators may have had a different
motive, it is nonetheless sufficient to support an inference of
attempted robbery.6
5
Gonzalez argues that the fact none of Rosa’s belongings
were removed from the car trunk weighs against any finding of
attempted robbery. However, as in both Ray, supra, 13 Cal.4th
at pp. 341–342, and Valencia, supra, 43 Cal.4th at p. 297, while
there was no evidence the perpetrators actually stole any
property from the victims, there was nonetheless sufficient
evidence to support the inference that the perpetrators’ motive
was robbery.
6
In his opening brief, Gonzalez also argued that because
“the prosecution did not prove the corpus delicti of the
underlying felony of attempted robbery,” it had likewise failed
to prove “the felony murder charged based on that felony.”
However, in his reply brief, Gonzalez acknowledges that for
crimes committed after the adoption of section 190.41 (added by
Prop. 115, Primary Elec. (June 5, 1990) § 11), “ ‘the corpus
delicti of a felony-based special circumstance . . . need not be
proved independently of a defendant’s extrajudicial
statement.’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216,
1263, fn. 1, quoting § 190.41.)
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2. The trial court did not err in admitting statements
obtained during the undercover operation
Gonzalez argues the trial court erred in admitting all
statements obtained during the undercover operation that law
enforcement performed while he and Flint were being
transported to, and then held at, the Los Angeles County jail.7
Gonzalez contends the statements were inadmissible because
his Sixth Amendment right to counsel had attached at that time.
Alternatively, he argues the delay in bringing charges against
him for Rosa’s murder violated his due process rights because
such conduct delayed appointment of counsel. Both claims are
without merit.
The right to counsel guaranteed by the Sixth Amendment
does not attach until “ ‘ “the initiation of adversary judicial
criminal proceedings — whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment.” ’ ” (Rothgery v. Gillespie County (2008) 554 U.S.
191, 198; see People v. Slayton (2001) 26 Cal.4th 1076, 1079.) At
that point, “the State’s relationship with the defendant has
become solidly adversarial” (Rothgery, at p. 202) — “ ‘the
government has committed itself to prosecute, and . . . the
adverse positions of government and defendant have solidified.
It is then that a defendant finds himself faced with the
prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law.’ ”
(United States v. Gouveia (1984) 467 U.S. 180, 189 (Gouveia).)
7
At trial, Gonzalez filed a motion to suppress any evidence
obtained during the undercover operation, arguing that law
enforcement’s conduct violated his Fifth and Sixth Amendment
rights. The trial court denied the motion.
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After the Sixth Amendment right has attached, government
agents may not obtain incriminating statements from a
defendant about the charged crime outside the presence of
defendant’s counsel absent an explicit waiver. (See Maine v.
Moulton (1985) 474 U.S. 159, 170–177.)
Here, Gonzalez made the incriminating statements over a
month before the complaint was filed against him. Thus, under
existing authority, Gonzalez’s Sixth Amendment rights had not
yet attached (and could not have been violated) when the
undercover operations were performed. (Compare People v.
Clair (1992) 2 Cal.4th 629, 658 [rejecting claim that use of
undercover agent violated 6th Amend. right to counsel after the
defendant had become “focus of the investigation,” but had not
yet been formally charged], with Illinois v. Perkins (1990) 496
U.S. 292, 299 [“the government may not use an undercover
agent to circumvent the Sixth Amendment right to counsel once
a suspect has been charged with the crime”].)
Gonzalez does not contend otherwise. Instead, he appears
to argue we should adopt the Sixth Amendment test that
Justice Stevens articulated in his concurring opinion in Gouveia,
supra, 467 U.S. 180. Justice Stevens’s concurrence argued that
“[i]f the authorities take a person into custody in order to
interrogate him or to otherwise facilitate the process of making
a case against him, . . . the person is sufficiently ‘accused’ to be
entitled to the protections of the Sixth Amendment.” (Id. at p.
197 (conc. opn. of Stevens, J.).) If that concurrence reflected
controlling law, Gonzalez would likely have a valid claim. But
it does not. To the extent Gonzalez is suggesting we should
revisit the “well established” (U.S. v. Kourani (2d Cir. 2021) 6
F.4th 345, 353) rules governing when the Sixth Amendment
right to counsel commences, we decline to do so.
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Gonzalez alternatively argues that the delay in bringing
charges against him violated his due process rights because the
delay was undertaken to gain a tactical advantage over him.
“[T]he right of due process protects a criminal defendant’s
interest in fair adjudication by preventing unjustified delays
that weaken the defense through the dimming of memories, the
death or disappearance of witnesses, and the loss or destruction
of material physical evidence.” (People v. Martinez (2000) 22
Cal.4th 750, 767.) As our high court has explained, however,
“Law enforcement officers are under no constitutional duty to
call a halt to a criminal investigation the moment they have the
minimum evidence to establish probable cause, a quantum of
evidence which may fall far short of the amount necessary to
support a criminal conviction.” (Hoffa v. United States (1966)
385 U.S. 293, 310; see United States v. Lovasco (1977) 431 U.S.
783, 791 [prosecutors have “no duty to file charges as soon as
probable cause exists but before they are satisfied they will be
able to establish the suspect’s guilt beyond a reasonable
doubt”].) We find no merit in Gonzalez’s contention that law
enforcement’s attempts to obtain further evidence of guilt after
having probable cause to arrest him violated the Fifth
Amendment right to due process.
3. There was no abuse of discretion in denying defense
counsel’s request for a second continuance
Gonzalez argues the court erred in denying his attorney’s
request for a second continuance of the trial.
a. Background
Approximately one year after defense counsel was
appointed, she filed a continuance motion seeking a four-month
delay of trial. The filing included a declaration describing
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counsel’s efforts in preparing for trial. The declaration also
described the need for additional time to investigate recently
disclosed aggravating factors and DNA discovery. The trial
court held a hearing on the motion and learned that Gonzalez
was not willing to waive time. Despite Gonzalez’s desires, the
trial court granted the motion, deciding that his right to effective
assistance of counsel outweighed his statutory speedy trial
right.
One month in advance of the new trial date, defense
counsel filed a motion to continue the trial for another four
months. In the attached declaration, which was filed under seal
to protect the defense’s trial strategy, counsel explained there
were three avenues of investigation she had not yet completed.
First, counsel stated she had not yet received “any feedback from
her DNA expert.” The declaration provided no time estimate as
to when she expected to hear from the expert nor did it describe
what exculpatory evidence she hoped to obtain (or the likelihood
that such evidence would be obtained). Second, counsel stated
that she needed to “obtain the services of both a psychiatrist and
psychologist” for the penalty phase. Again, however, counsel
provided no details regarding the expected timetable for
obtaining such services or the nature of the evidence she hoped
to gain. Finally, counsel asserted that there “remain[ed] other
penalty phase witnesses that must be located and interviewed.”
No details were provided about the identity of those purported
witnesses or the type of information they might have that would
be relevant to the penalty phase.
At the motion hearing, defense counsel informed the court
that although she had explained to Gonzalez that a continuance
was in his best interest, he remained unwilling to waive time
and had indicated he would seek to represent himself if a second
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
continuance were granted. In an exchange with the court,
Gonzalez confirmed that while he understood his attorneys
believed they needed more time to prepare, he was not willing
to waive time. The prosecution did not object to a continuance,
but noted that because of conflicting schedules, any delay would
need to be for at least five months.
The court questioned whether it could find good cause for
a second lengthy continuance, explaining: “[T]he defendant
appears to be an intelligent young man. He understands what
is going on and he understand[s] the serious nature of this case.
And I found good cause in the past. I don’t know if I can keep
doing that in good conscience. A defendant can waive whatever
right that he has if he wishes to . . . . And I don’t know if I can
keep finding good cause to put it over, especially for the amount
of time that [we are] talking about. [¶] . . . [¶] . . . . [We are]
talking about five months. . . . I find that to be a difficult thing
for me to do when he refuses to waive time.” In response,
defense counsel acknowledged that she “under[stood] the court’s
concern” but felt an “obligation” to seek a continuance because
she did not feel she would be prepared on mitigation. The court
then denied the motion, explaining, “I cannot find good cause for
a five-month continuance when the defendant refuses to waive
time. All I can say is whatever needs to be done must be done
expeditiously.”
b. Discussion
We review a trial court’s order denying a motion to
continue for abuse of discretion. (See People v. Jackson (2009)
45 Cal.4th 662, 677–678; see also People v. Beames (2007) 40
Cal.4th 907, 920 [“[A]n order denying a continuance is seldom
successfully attacked”]; Cal. Rules of Court, rule 4.113 [“Motions
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
to continue the trial of a criminal case are disfavored”].) A trial
court’s discretion “may not be exercised so as to deprive the
defendant or his attorney of a reasonable opportunity to
prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.) The
court “must consider ‘ “ ‘not only the benefit which the moving
party anticipates but also the likelihood that such benefit will
result, the burden on other witnesses, jurors and the court and,
above all, whether substantial justice will be accomplished or
defeated by a granting of the motion.’ ” ’ ” (People v. Doolin
(2009) 45 Cal.4th 390, 450 (Doolin).)
Under the unusual circumstances presented here, we
conclude the trial court did not abuse its discretion in
determining that substantial justice would not be accomplished
by granting the second motion for a continuance. While a court
facing a continuance request must normally weigh the
anticipated benefit to the defendant against the burdens the
continuance would have on other participants in the trial (see
Doolin, supra, 45 Cal.4th at p. 450), there was another factor to
consider in this case: Gonzalez had repeatedly stated that he
was against a continuance, implicating not only his statutory
right to a speedy trial but his constitutional rights. (See U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15; Townsend v.
Superior Court (1975) 15 Cal.3d 774, 781 (Townsend) [“The right
to a speedy trial is undeniably ‘as fundamental as any of the
rights secured by the Sixth Amendment’ [citation], and . . .
counsel may not waive this constitutional right over his client’s
objections” (italics omitted)].)
Further complicating matters, defense counsel informed
the court that Gonzalez had indicated he would choose to
represent himself in the event of a second continuance. The trial
court might reasonably conclude that whatever benefits could be
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
gained from an additional five-month delay were substantially
outweighed by the risks associated with self-representation in a
capital matter. Moreover, the declaration defense counsel
provided in support of the continuance motion was vague, failing
to explain with any specificity the type of exculpatory evidence
she hoped to gain from her further investigation or the
likelihood that she would in fact obtain such evidence. (See
Doolin, supra, 45 Cal.4th at p. 451 [“defendant’s
vague . . . reasons for the continuance failed to support good
cause”].)
On the record presented here, we cannot conclude that
the trial court abused its discretion in attempting to balance the
right to effective counsel versus the asserted right to a speedy
trial by granting one continuance over defendant’s objection, but
not two. (See Townsend, supra, 15 Cal.3d at p. 784 [“counsel
[does not] possess[] carte blanche under any and all conditions
to postpone his client’s trial indefinitely”].)
4. The wiretap application was not facially invalid
Gonzalez argues the trial court should have suppressed
any evidence derived from communications that law
enforcement intercepted pursuant to the wiretap order. As
discussed in more detail below, John Spillane, the chief deputy
district attorney for Los Angeles County, signed the wiretap
application and attested that he was “the person designated to
act as District Attorney in [District Attorney Steve Cooley’s]
absence.” Although California’s wiretap law expressly allows
for such designation (see § 629.50, subd. (a)), Gonzalez contends
the application was nonetheless invalid because it failed to
include information describing the circumstances of District
Attorney Cooley’s absence. Gonzalez argues that without such
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Opinion of the Court by Groban, J.
information, there is no way to verify whether Cooley was truly
absent at the time Spillane filed the application. We find
nothing in the wiretap statute that imposes such a requirement.
a. Background
(i) The trial court proceedings
In August 2006, Chief Deputy District Attorney John
Spillane filed an application for an order authorizing wiretaps
on several phones affiliated with Gonzalez. The application
included a declaration, made under penalty of perjury, from
Spillane stating, “Steve Cooley is the District Attorney of the
County of Los Angeles and I am the person designated to act as
District Attorney in his absence pursuant to Penal Code
[s]ection 629.50[, subdivision ](a).” The declaration also stated
Spillane had reviewed an attached 37-page affidavit from
detective Thomas Kerfoot that provided background
information regarding the investigation and explained the need
for the wiretaps. Spillane further attested that he agreed the
wiretaps were both necessary and likely to intercept
communications related to Rosa’s murder. The application also
included a signed attestation from Long Beach Police
Department Chief Anthony Betts confirming that he had
reviewed Kerfoot’s affidavit and had approved the application.
Prior to trial, Gonzalez filed a motion arguing that any
evidence derived from the wiretaps should be suppressed
because Spillane’s application did not include any information
confirming that District Attorney Cooley was absent when
Spillane had sought the order. Gonzalez’s motion contended
that the district attorney’s office had attempted to “take
advantage of an ambiguity” in the statutory provision that
authorizes a person designated to act in the district attorney’s
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
absence to seek a wiretap application. That provision, set forth
in section 629.50, subdivision (a) (section 629.50(a)) states, in
relevant part: “Each application for an order authorizing the
interception of a wire or electronic communication shall be made
in writing upon the personal oath or affirmation of . . . a district
attorney, or the person designated to act as district attorney in
the district attorney’s absence.”
Gonzalez argued the language in section 629.50(a) could
be construed in one of two ways. First, it could mean that the
person designated to act as district attorney in the district
attorney’s absence can only seek an application when the
district attorney is actually absent; second, it could mean that if
a person has been designated to act as the district attorney when
the district attorney is absent, he or she can seek an application
even when the district attorney is present. Gonzalez argued
that the first interpretation was the correct reading, explaining
that “[w]hile the urgent nature of criminal investigations may
explain why the legislature provided for a delegate in the case
of the district attorney’s absence, there is no justification for
allowing such delegation when the district attorney is present
and capable of filing the application.”
Gonzalez further contended that based on the wording of
the wiretap application, it was unclear whether District
Attorney Cooley was truly absent when Spillane had sought the
order. According to Gonzalez, Spillane’s declaration stated only
that he was “ ‘the person designated to act as District Attorney
in [Steve Cooley’s] absence,’ but ma[de] no assertion whatsoever
regarding Cooley’s actual absence from his position.” Gonzalez
further argued that because the “government ha[d] made no
showing that Cooley was, in fact, absent when the
application . . . was approved . . . , that application and the
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
ultimate wiretap authorization are invalid and illegal.”
Gonzalez did not present any argument as to the meaning of the
term “absent” nor did he produce any evidence suggesting that
District Attorney Cooley was not absent when Spillane signed
the application as the person designated to act in Cooley’s
absence.8
In its opposition to the motion to suppress, the prosecution
did not dispute that section 629.50(a) authorizes the designee to
act only when the district attorney is absent. Acknowledging
that few cases had addressed the requirements of section
629.50(a), the prosecution contended that the designation
provision “allows a District Attorney, whose responsibilities are
many, especially in a County the size of Los Angeles, to
designate someone to act” in his or her absence with respect to
wiretap applications, and “recognizes the numerous and varied
duties of a District Attorney . . . [by] allow[ing] for another to
take on wiretap application responsibilities.” The prosecution
then quoted three dictionary definitions of the term “absence,”
which included “ ‘the state of being away from place or person’ ”;
“ ‘the duration of being away’ ” and “ ‘not present.’ ” The
prosecution further asserted that Spillane’s declaration made
clear that the “District Attorney was absent and designated his
responsibility for review [sic]. . . . The statute could have but
did not require [District Attorney Cooley] or his designate to
provide documentation or explanation. In the absence of such
8
Gonzalez also argued the application was invalid because
there were factual inconsistencies regarding the date on which
Long Beach Police Department Chief Anthony Betts signed his
affidavit stating that he had reviewed and approved the
application. Gonzalez has not raised that claim on appeal.
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
statutory provision, we must presume the Legislature did not
intend to require such proof.”
At the suppression hearing, defense counsel argued “the
problem” was that although section 629.50(a) made “clear that
someone else c[ould] only act if Cooley [wa]s absent,” the
application contained “nothing to indicate” Cooley was actually
absent when Spillane sought the order. Defense counsel
contended that “everybody knows what absent means,” noting
that the prosecutor “went through in her opposition papers to
explain the meaning and so forth.” Counsel acknowledged that
the “statute does not specifically” require the applicant to
include such information in the application, but argued it was
nonetheless “incumbent upon the prosecution, not the defense,
to establish that he was absent. So . . . with that application, it
would be inappropriate absent showing that Cooley was, in fact
absent . . . before [Spillane] could provide that application.”
In response, the prosecution argued defense counsel’s
contention that the district attorney must “prove [he was
absent] and . . . need[s] to document why he’s absent” found no
support “under the statute” or in the “case law.” The prosecution
further argued that Spillane’s under-oath statement that he was
the person designated to act as district attorney when Cooley
was absent provided “prima facie evidence” that he was properly
designated; the wiretap statute required nothing more.
The trial court agreed with the prosecution, concluding
that section 629.50(a) “provide[d] for” exactly the type of oath
Spillane had made in his declaration and did not include any
further “requirement . . . that there be proof that [the district
attorney was] absent.” The court further commented that it
could not “imagine the Legislature” requiring the district
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PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
attorney or the designee to document the circumstances of the
absence “each time the chief of any agency is out of town,”
describing such a requirement as “onerous” and “unnecessary.”
(ii) Proceedings on appeal
On appeal, Gonzalez reiterates his argument that the
wiretap application was invalid because “there was no proof that
the elected district attorney of Los Angeles County, Steven
Cooley, was actually absent from his position when his Chief
Deputy, John Spillane, made the application.” His brief
discusses at length United States v. Perez-Valencia (9th Cir
2013) 727 F.3d 852 (Perez-Valencia), a Ninth Circuit decision
interpretating section 629.50(a)’s designation provision that
was decided several years after Gonzalez’s trial. Perez-Valencia
addresses the scope of authority a subordinate must be
delegated in order to seek a wiretap in the district attorney’s
absence, an issue Gonzalez did not raise in the trial court. The
Ninth Circuit concluded that the phrase “the person designated
to act as district attorney in the district attorney’s absence”
requires that the designee “must be acting in the district
attorney’s absence not just as an assistant district attorney
designated with the limited authority to apply for a wiretap
order, but as an assistant district attorney duly designated to
act for all purposes as the district attorney of the political
subdivision in question.” (Perez-Valencia, at p. 855.) Noting
that the prosecution’s opposition to the motion to suppress
appeared to interpret the requirements of section 629.50(a)
differently than Perez-Valencia, Gonzalez argues that the
application here was invalid because “there was no evidence
presented . . . as to either the nature of District Attorney
Cooley’s absence or the nature of the authority of Chief Deputy
Spillane.”
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Opinion of the Court by Groban, J.
At oral argument, Gonzalez’s counsel confirmed
defendant’s argument with respect to the wiretap order is that
the application was facially invalid because it failed to include
information verifying that the district attorney was absent.9
Thus, the issue we must decide is whether it is sufficient for a
wiretap application to state, as here, that it has been submitted
upon the oath of “the person designated to act as district
attorney in the district attorney’s absence” (§ 629.50(a)), or
whether section 629.50 also requires that an application include
information detailing the specific circumstances of the district
attorney’s absence.
b. Discussion
(i) Summary of federal and state wiretap laws
Title III of the federal Omnibus Crime Control and Safe
Streets Act of 1968 (Title III) (18 U.S.C. §§ 2510–2520)
“ ‘provides a “comprehensive scheme for the regulation of
wiretapping and electronic surveillance.” ’ [Citation.] As we
have previously observed, Title III ‘establishes minimum
standards for the admissibility of evidence procured through
electronic surveillance; state law cannot be less protective of
privacy than the federal Act.’ ” (People v. Leon (2007) 40 Cal.4th
376, 384 (Leon); see Villa v. Maricopa County (9th Cir. 2017) 865
F.3d 1224, 1230 (Villa) [“States may choose to enact wiretapping
9
Appellate counsel acknowledged that if this court did not
accept the “argument that more had to be said on the face of the
application itself,” there was no basis for relief. Counsel also
confirmed that Gonzalez’s argument was not related to anything
the prosecution said “in [its] response to the motion to suppress
or [at the suppression] hearing.”
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Opinion of the Court by Groban, J.
statutes imposing more stringent requirements, or . . . choose to
forego state-authorized wiretapping altogether”].)
Title III allows states to authorize only the following
categories of law enforcement officials to seek a wiretap order:
“The principal prosecuting attorney of any State, or the
principal prosecuting attorney of any political subdivision
thereof, if such attorney is authorized by a statute of that
State . . . .” (18 U.S.C. § 2516(2).) Pursuant to that provision,
California’s wiretap law (Pen. Code, § 629.50 et seq.) provides
that “[e]ach application for an order authorizing the interception
of a wire or electronic communication shall be made in writing
upon the personal oath or affirmation of the Attorney
General . . . or a district attorney, or the person designated to
act as district attorney in the district attorney’s absence.”
(§ 629.50(a).)10
Section 629.50(a) sets forth a detailed description of
additional categories of information a wiretap application must
contain, including (among other things) the identity of the
applicant, the identity of the agency that will carry out the
wiretap, the facts and circumstances demonstrating the need for
10
Although 18 United States Code section 2516(2) only
refers to “the principal prosecuting attorney of any political
subdivision,” courts have held that this language does not
preclude states from authorizing a district attorney to delegate
wiretap authority to a subordinate when absent. (See U.S. v.
Fury (2d Cir.1977) 554 F.2d 522, 527, fn. 4 (Fury) [“ ‘Congress
simply could not have intended that local wiretap activity would
be completely suspended during the absence or disability of the
official specifically named [in § 2516(2)]’ ”]; Perez-Valencia,
supra, 727 F.3d at p. 854.)
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Opinion of the Court by Groban, J.
the warrant and the period of time the wiretap will be used. (See
§ 629.50(a)(1)–(4).)
(ii) Section 629.50(a) does not require that the
application describe the circumstances of the
district attorney’s absence
Gonzalez argues that the wiretap application filed in this
case was invalid because it did not include any information
confirming the circumstances of District Attorney Steve Cooley’s
absence. But as defense counsel acknowledged at the
suppression hearing, there is no language in California’s
wiretap laws that imposes such a requirement. Instead, the
designation provision states only that an application for a
wiretap order “shall be made in writing upon the personal oath
or affirmation of . . . a district attorney, or the person designated
to act as district attorney in the district attorney’s absence.” (§
629.50(a).)
In contrast to section 629.50(a)’s designation provision,
other sections of the wiretap statute do require that the
application include information verifying certain standards
have been met. In particular, section 629.50(a)(4) requires that
the applicant provide a “full and complete statement of the facts
and circumstances relied upon to justify his or her belief that an
order should be issued.” That “full and complete statement”
must include, among other things, a description of the offense
that is being investigated, an explanation why conventional
investigative techniques are insufficient, a description of the
type of communications that are expected to be intercepted, and
the identity of the persons whose communications are expected
to be intercepted. (Ibid.)
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Opinion of the Court by Groban, J.
Had the Legislature intended to impose a similar
requirement compelling the application to include a “full and
complete statement of the facts” confirming the circumstances
of the district attorney’s absence, it could have directed as much.
But that is not what the Legislature did. Instead, it required
only that the application must “be made in writing upon the
personal oath or affirmation of . . . a district attorney, or the
person designated to act as district attorney in the district
attorney’s absence.” (§ 629.50(a).) The application from Chief
Deputy Spillane includes an oath that incorporates that exact
statutory language. The express provisions of the wiretap
statute require nothing more.
Gonzalez has likewise cited no case holding that a wiretap
applicant who claims to have been lawfully designated to seek
the application has a sua sponte duty to provide information
confirming the legality of that designation. Indeed, the few
cases we have found addressing similar claims have rejected
such arguments. (See U.S. v. Terry (2d Cir. 1983) 702 F.2d 299,
311 [rejecting claim that application was invalid because it
failed to include information showing that three assistant
attorneys general with higher priority than the applicant “were
absent or otherwise unavailable”]; U.S. v. Ruiz (S.D.N.Y., Nov.
19, 2010, No. 09 CR. 719 (DAB)) 2010 U.S. Dist. Lexis 123991,
pp. *13–*14 [§ 629.50(a) does not “impose a burden on
investigative agencies or prosecutors to . . . prove they were
absent when a designee acts on their behalf”]; U.S. v. Mattingly
(W.D.Ky., July 1, 2016, No. 3:15-CR-99-DJH) 2016 U.S. Dist.
Lexis 86489, pp. *19–*20 [“Because [defendant] has failed to
present competent and credible evidence, as opposed to mere
speculation, that [district attorney] was in fact available and
reachable when [the designated acting district attorney]
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Opinion of the Court by Groban, J.
submitted the application . . ., suppression is not warranted on
the ground that the wiretaps were improperly authorized”].)
These cases are in accord with the general principle that,
“absen[t] . . . evidence to the contrary, it is presumed that official
duty has been properly performed.” (Roelfsema v. Department
of Motor Vehicles (1995) 41 Cal.App.4th 871, 879 [relying on
Evid. Code, § 664]; cf. Terry, supra, 702 F.2d at p. 311 [“a named
designee whose high office [gives] him statutory power to
authorize electronic surveillance orders is presumed to have
properly exercised that power and the condition[s] precedent
[are] presumed to have been met unless the defendants offer
evidence, apart from mere conjecture or speculation, to rebut
this presumption”]; People v. Davis (2008) 168 Cal.App.4th 617,
630 [because the “ ‘ defendant bears the burden of proving that
a wiretap is invalid once it has been authorized,’ ” “the failure to
bring a timely challenge to wiretap evidence forfeits the claim”].)
The primary authority Gonzalez discusses in his appellate
briefing is Perez-Valencia, supra, 727 F.3d 852, a case decided
long after his trial was completed. However, nothing in Perez-
Valencia suggests section 629.50(a) requires that an application
submitted under the oath of a designated acting district
attorney must include information verifying the circumstances
of the district attorney’s absence. Instead, as explained above,
Perez-Valencia interpreted the scope of authority that a
designated subordinate must have in order to seek a wiretap
order under section 629.50(a), concluding the provision only
applies when the district attorney has “duly designated [a single
subordinate] to act for all purposes as the district attorney of the
political subdivision in question.” (Perez-Valencia, at p 855,
italics omitted.) While that interpretation is consistent with
both the wording of section 629.50(a) — the “district attorney or
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Opinion of the Court by Groban, J.
the person designated to act as district attorney” (italics
added) — and the language of Title III, which contemplates that
only one “principal prosecuting attorney” will have wiretap
authority at any given time (see 18 U.S.C. § 2516(2) [states may
authorize “the principal prosecuting attorney of any political
subdivision thereof” (italics added)]; Fury, supra, 554 F.2d at p.
527, fn. 4 [state law authorizing district attorney to designate
subordinate to act in his or her absence was permissible under
Title III because “[t]here is still only one person who has the
authority [to act]”]), it is not relevant to Gonzalez’s claim that
the government was required to submit “proof” beyond
Spillane’s attestation confirming that “the elected district
attorney . . . was actually absent from his position.” Perez-
Valencia provides no guidance on that question.11
11
At the suppression hearing, the trial court commented
that it did not believe the term “absent” in section 629.50(a) was
limited to situations where the district attorney was “out [of]
town [or] out of state,” but could also apply where the district
attorney was “involved in doing other things” and “not available
to do this type of work.” The prosecution agreed, asserting that
the statute “simply means not present and not available, but it
doesn’t mean physically in another jurisdiction.” In its
opposition to the motion to suppress, the prosecution also
asserted, among other things, that the statute “recognizes the
numerous and varied duties of a District Attorney . . . [by]
allow[ing] for another to take on wiretap application
responsibilities.” (See ante, at p. 29.)
While some of those comments could be construed to
endorse a broader interpretation of section 629.50(a) than the
Ninth Circuit articulated in Perez-Valencia, supra, 727 F.3d
852, their meaning is not entirely clear in context. In any event,
defense counsel did not voice any objection to the trial court’s
statements (or the prosecution’s statements) regarding what
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Gonzalez appears to argue that we should require the
application to confirm the circumstances of the district
attorney’s absence because merely incorporating the
designation standard set forth in section 629.50(a) leaves
ambiguity as to whether the district attorney was truly absent.
As we understand it, Gonzalez’s position is that a statement like
the one in Spillane’s application (which tracks the statutory
language) does not attest that the district attorney was actually
absent; instead, it attests only that the applicant is the person
designated to act as district attorney when the district attorney
is absent. Thus, it leaves open the possibility that the applicant
is merely stating that he or she is the person who is designated
to act when the district attorney is absent, not that the district
attorney was absent when the application was filed.
We think it clear, however, that when an applicant such
as Spillane attests, “Steve Cooley is the District Attorney of the
County of Los Angeles, and I am the person designated to act as
District Attorney in his absence pursuant to Penal Code
[s]ection 629.50(a),” that statement is most reasonably
construed as a declaration that the district attorney is in fact
absent. Indeed, the wording of Spillane’s oath quite logically
“absent” means, nor did counsel offer an alternative
interpretation. Instead, counsel argued only that the wiretap
application was invalid because it did not contain any
information substantiating that the district attorney was
absent. At oral argument, appellate counsel confirmed that
Gonzalez raises the same challenge before this court.
Accordingly, we have no occasion to consider the precise
circumstances under which a district attorney is considered
“absent” under section 629.50(a) or otherwise address the scope
of authority that the statute requires the district attorney to
delegate to a subordinate when absent.
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tracked the language of section 629.50(a) almost verbatim (see
§ 629.50(a) [application “shall be made in writing upon the
personal oath or affirmation of the . . . district attorney, or the
person designated to act as district attorney in the district
attorney’s absence” (italics added)].)12 Moreover, in this case, the
prosecution confirmed to the trial court that the statement was
intended to convey the “District Attorney was absent and
designated his responsibility for review.” Contrary to
Gonzalez’s suggestion, we do not believe Spillane’s use of the
very oath that is set forth in the wiretap statute casts doubt
upon whether the district attorney truly was absent, thereby
necessitating some further evidentiary showing.
In sum, we decline to read into section 629.50(a) a
requirement that when a person designated to act as district
attorney in the district attorney’s absence seeks a wiretap order,
the application must include information that explains the
circumstances of the district attorney’s absence. (See People ex
rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 768 [“In
construing a statute, we do not insert words into it as this would
‘violate the cardinal rule that courts may not add provisions to
a statute’ ” (quoting Adoption of Kelsey S. (1992) 1 Cal.4th 816,
827)].) If the Legislature believes these additional safeguards
would be prudent to ensure that law enforcement is operating
12
Especially when read against the backdrop of the federal
law it implements, the language of section 629.50(a) is naturally
understood to require that the affirmation come from either the
“principal prosecuting attorney” in the relevant jurisdiction (18
U.S.C. § 2516(2)) or the person who is acting as principal
prosecuting attorney during the principal prosecuting attorney’s
period of absence. (See Fury, supra, 554 F.2d at p. 527, fn. 4.)
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within the limitations of section 629.50(a), it is of course free to
amend the statute accordingly.
5. Any violation of Gonzalez’s right to confrontation was
harmless
Gonzalez argues the trial court’s admission of certain
testimony related to the DNA evidence violated his rights under
the confrontation clause of the Sixth Amendment to the United
States Constitution. Although the merits of Gonzalez’s claim
are difficult to assess given the divided state of the high court’s
current confrontation clause jurisprudence, we conclude that
any Sixth Amendment violation that may have occurred in this
case was harmless beyond a reasonable doubt. (See People v.
Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 395 (Bryant)
[confrontation clause violations are subject to federal harmless
error standard enunciated in Chapman v. California (1967) 386
U.S. 18].)
a. Background
Juli Watkins, a criminalist for the Los Angeles County
Sheriff’s Department, obtained genetic samples from the bicycle
that was left near the scene of the shooting. She also received a
reference sample from Rosa. Watkins was able to generate a
DNA profile of Rosa, but the samples from the bicycle were
contaminated and unusable. Watkins’s colleague, Kari Yoshida,
collected new samples from the bicycle and was able to generate
a DNA profile of a contributor to one of those samples. In July
2006, Watkins and Yoshida co-authored and signed a report
describing the analyses they had each performed to date.
After receiving notification that Gonzalez was a possible
match to the DNA from the bicycle sample, Watkins obtained a
reference sample from him and generated a DNA profile. She
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then compared that profile to the profile Yoshida had generated
from the bicycle sample and concluded Gonzalez was a possible
contributor. Watkins prepared a supplement report that
estimated the chances a randomly selected person would be a
possible contributor to the profile generated from the bicycle
were one out of three billion Caucasians, one out of 14 billion
African-Americans and one out of one billion Hispanics. A copy
of the supplemental report was introduced at trial.
Watkins testified at the trial, but Yoshida did not.
Watkins explained the roles she and Yoshida had each played in
producing the relevant DNA evidence. Watkins also testified as
to her determination that Gonzalez was a possible contributor
to the bicycle sample. When asked, “How common would it be
for a person to have been included as a possible contributor,”
Watkins answered, “A conservative statistic . . . was estimated
to be one out of one billion.”
b. Any confrontation clause violation was harmless
Gonzalez argues the trial court committed two evidentiary
errors that violated his rights under the confrontation clause.
First, it allowed Watkins to testify about the DNA analysis that
her colleague, Yoshida, had conducted on the bicycle, which
resulted in the profile that Watkins ultimately determined to be
a possible match with Gonzalez’s profile. Second, the court
admitted into evidence a report that included Yoshida’s
analysis.
“The Sixth Amendment’s Confrontation Clause provides
that, ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’ ”
(Crawford v. Washington (2004) 541 U.S. 36, 42.) “Crawford
held that the clause bars introduction of ‘testimonial’ hearsay
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against a defendant unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination.”
(People v. Amezcua and Flores (2019) 6 Cal.5th 886, 911–912
(Amezcua).) The question of whether and when statements in
technical reports qualify as “testimonial hearsay” remains an
evolving area of the law. (See id. at p. 912.)
In 2012, this court issued three companion cases that
addressed confrontation clause claims involving testimony
detailing the results of technical reports that had been prepared
by a nontestifying witness. (See People v. Lopez (2012) 55
Cal.4th 569; People v. Dungo (2012) 55 Cal.4th 608 (Dungo);
People v. Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt).)
Those cases generated numerous separate opinions, reflecting
the fragmented nature of the high court’s reasoning in this area.
(See Dungo, at p. 616 [“Sixth Amendment confrontation right
issue [was] far from easy to resolve in light of the widely
divergent views expressed by the justices of the United States
Supreme Court in . . . recent . . . cases”]; id. at p. 628 (conc. opn.
of Chin, J.) [concluding that it is “difficult to determine what to
make” of high court’s confrontation clause jurisprudence];
Lopez, at p. 590 (dis. opn. of Liu, J.) [the multitude of opinions
in Lopez, Dungo, and Rutterschmidt reflected “the muddled
state of current doctrine concerning the Sixth Amendment right
of criminal defendants to confront the state’s witnesses against
them”].) More recently, we have noted that “ ‘considerable flux’
[continues to] surround[] the high court’s Sixth Amendment
jurisprudence” (People v. Schultz (2020) 10 Cal.5th 623, 660, fn.
8), and that “[a] comprehensive definition of the term
‘testimonial’ awaits articulation.” (Amezcua, supra, 6 Cal.5th at
p. 912.)
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We need not delve further into the high court’s divided
confrontation clause jurisprudence because even if a Sixth
Amendment violation is assumed, “ ‘it [is] clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’ ” (People v. Geier (2007) 41
Cal.4th 555, 608 [describing the harmless error standard
applicable to a claim challenging the admission of DNA evidence
under the confrontation clause]; see Rutterschmidt, supra, 55
Cal.4th at p. 661 [“Violation of the Sixth Amendment’s
confrontation right requires reversal of the judgment against a
criminal defendant unless the prosecution can show ‘beyond a
reasonable doubt’ that the error was harmless”].) As we have
previously observed, DNA analysis is a powerful form of
evidence that can (and often will) be highly prejudicial to the
defendant. (See Dungo, supra, 55 Cal.4th at p. 631 [“ ‘a DNA
profile may provide powerful incriminating evidence’ ” (quoting
Williams v. Illinois (2012) 567 U.S. 50, 85 (plur. opn. of Alito,
J.))]; see also U.S. v. Barton (11th Cir. 2018) 909 F.3d 1323, 1338
[“DNA evidence is powerful and it could be highly prejudicial”].)
However, even when highly prejudicial, the erroneous
admission of DNA analysis may still be deemed harmless where
the remaining evidence is so overwhelming as to leave no
reasonable doubt as to the defendant’s guilt. (See Geier, supra,41 Cal.4th at p. 608 [“any error in the admission of DNA
evidence was harmless beyond a reasonable doubt”]; cf. Doolin,
supra, 45 Cal.4th at p. 448 [although admission of DNA evidence
violated state evidentiary law, the error was harmless “in light
of the overwhelming and uncontradicted evidence of defendant’s
guilt”].) We believe this is such a case.
The prosecution’s case against Gonzalez centered on two
categories of highly incriminating evidence that were
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independent of the DNA analysis: (1) statements that Gonzalez
and Flint made to law enforcement agents who were posing as
inmates during a sophisticated undercover operation; and (2)
admissions that Gonzalez made to his longtime girlfriend and
sister regarding his commission of the offense. The quantity and
quality of that evidence was prodigious.
During the undercover operation, most of which was
recorded, Gonzalez informed multiple agents that he had shot a
female police officer. Gonzalez also disclosed numerous details
about the crime, explaining (among other things) that he had
left a bicycle at the scene, that he had thrown the murder
weapon into the water and that he had not left any footprints
because the crime occurred on pavement. Gonzalez and Flint
were also heard discussing killing any witnesses to the murder,
and Flint stated that the victim would not have been killed if
she had given up her wallet.
Gonzalez’s girlfriend and sister provided additional,
highly incriminating testimony. Rowan and Celina both
explained they had pleaded guilty to obstruction of justice after
law enforcement intercepted conversations in which they were
heard fabricating an alibi for Gonzalez. They both testified that
Gonzalez had admitted he shot a female police officer and
showed them a newspaper with a story about the crime. Rowan
also testified that Gonzalez told her he left a bicycle at the scene
of the crime and had thrown the murder weapon into the ocean.
Rowan further acknowledged that law enforcement had
recorded incriminating conversations she had with Gonzalez
while visiting him in prison. During those recorded
conversations, Gonzalez instructed her to contact an
acquaintance and ask him to take care of any possible snitches;
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he also exclaimed “oh fuck” after Rowan informed him that
police divers were searching for the murder weapon.
Given this highly incriminating additional evidence of
guilt, we are persuaded beyond a reasonable doubt that the jury
would have returned the same verdict even in the absence of the
DNA evidence.
6. Gonzalez has failed to establish prosecutorial or judicial
misconduct
Gonzalez argues the prosecution violated his due process
rights by asking two key witnesses — Rowan and Celina — a
series of leading questions. He contends the prosecution and the
trial court committed a second due process violation by coercing
those witnesses to say what the prosecutor wanted them to say.
Both claims lack merit.
a. Background
Rowan and Celina were both charged with conspiracy to
obstruct justice for having falsified an alibi for Gonzalez. Rowan
entered a guilty plea with an agreed upon sentence of up to three
years depending on the judge’s assessment of her veracity in
testifying at Gonzalez’s trial. Celina likewise pleaded guilty
with her agreed upon sentence contingent on testifying
truthfully at trial.
During her direct examination at trial, Rowan
acknowledged that she had previously testified in the case and
was facing sentencing for her obstruction charge. Through
much of the examination, the prosecutor asked questions
consisting of declarative statements followed by, “isn’t that
correct?” The prosecutor and the judge also repeatedly
admonished Rowan that she should answer the questions that
had been asked, and the judge gave Rowan’s attorney an
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opportunity to remind her of the importance of testifying
truthfully.
Similarly, in questioning Celina, the prosecutor asked a
series of narrative questions which she answered through “yes”
or “no” answers. Among other topics, the prosecutor asked
Celina about her conversations with police following her arrest
and repeatedly reminded her that she was under oath and had
to tell the truth. When Celina answered one such question with
a question — “Why do you keep asking me? He didn’t tell me
directly” — the trial court admonished her not to ask questions
and invited Celina’s counsel to talk with her. Outside the
presence of the jury, the court also reminded Celina that she was
under oath and then encouraged the prosecutor to refresh
Celina’s memory. When defense counsel objected that the court
was intimidating Celina, the judge replied, “Number one, she
will not ask questions of anybody. And number two, she shall
tell the truth, period. It’s that simple. That’s not intimidation.
That’s doing what’s right.” Following the exchange, Celina
repeatedly responded “yes” to a series of questions about what
she had previously told law enforcement about the crime.
b. Discussion
(i) The prosecution’s use of leading questions
Gonzalez first argues that the prosecution’s decision to
rely on leading questions during the direct examination of
Rowan and Celina constituted prosecutorial misconduct. “A
prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such
unfairness as to make the conviction a denial of due process.
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state
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PEOPLE v. GONZALEZ
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law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) A
trial court’s decision to allow leading questions is reviewed for
abuse of discretion. (See People v. Friend (2009) 47 Cal.4th 1,
39.)13
As a general matter, a “leading question may not be asked
of a witness on direct or redirect examination.” (Evid. Code, §
767, subd. (a)(1).) “ ‘ “A ‘leading question’ is a question that
suggests to the witness the answer that the examining party
desires.” [Citation.] Questions calling for a “yes” or “no” answer
are not leading unless they are unduly suggestive under the
circumstances.’ ” (People v. Collins (2010) 49 Cal.4th 175, 214.)
However, “ ‘ “leading questions are not always impermissible on
direct examination.” ’ ” (Ibid.) The Evidence Code permits their
use “under special circumstances where the interests of justice
otherwise require.” (Evid. Code, § 767, subd. (a)(1).) Applying
that exception, we have previously held that leading questions
are permissible when they “serve[] ‘to stimulate or revive [the
witness’s] recollection’ ” (People v. Williams (1997) 16 Cal.4th
635, 672), or when the examining party is faced with a hostile
witness. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1319
[prosecutor’s “use of leading questions, which necessarily
included stating facts she assumed the witness would affirm or
13
It is unclear from Gonzalez’s briefing whether he is
arguing that the use of leading questions constituted a form of
prosecutorial misconduct or that the trial court erred in
permitting such questioning or both. However, as discussed
below, regardless of the specific nature of his claim, we find no
error on the part of either the trial court or the prosecution with
respect to the use of leading questions.
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deny, was justified because [the witness] was . . . obviously
hostile”].) Trial courts have broad discretion to decide when
such special circumstances are present. (See Williams, at p.
672.)
While some of the prosecutor’s questions were leading, we
find that the method of questioning did not constitute
misconduct nor did the trial court abuse its discretion in
allowing the interrogation to proceed in such a manner. The
transcript shows that on many occasions, Rowan and Celina
claimed not to remember (or were willfully refusing to recall)
details about the prior statements they had made regarding the
crime. Indeed, at one point, Gonzalez’s own counsel
acknowledged Celina appeared to have difficulty remembering
precise details of events that had happened several years ago.
The record also supports an inference that Rowan and
Celina were sufficiently “hostile” to permit leading questioning.
Indeed, both witnesses acknowledged at the outset that it was
difficult for them to testify. Moreover, both witnesses had a
close relationship with Gonzalez and had previously lied to
police to protect him. Given the witnesses’ purported difficulty
in remembering what had occurred, the obvious inconsistencies
between their trial testimony and their prior statements to
police and their close relationship to Gonzalez, we find no error
in either the trial court’s decision to allow leading questions or
the prosecution’s use of such questions.
(ii) Admonishments to tell the truth
Gonzalez next contends that the trial court and the
prosecution unlawfully coerced Rowan and Celina into
providing testimony favorable to the prosecution. He identifies
several distinct categories of alleged misconduct, including: (1)
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on multiple occasions, both the trial court and the prosecution
reminded the witnesses they were testifying under oath and
were required to tell the truth; (2) after the witnesses had
repeatedly claimed they could not remember an event, the court
invited their attorneys to speak with them about answering
questions truthfully;14 (3) the prosecutor reminded Rowan of
prior statements she had made during the investigation; (4)
when presented with testimony that was inconsistent with prior
statements made during the investigation, the prosecution
asked Rowan if she understood that she was looking at three
years in prison.
We first consider whether the trial court engaged in
unlawful coercion by reminding the witnesses they were under
oath and inviting their respective attorneys to talk to them
about testifying truthfully. Gonzalez cites no case holding that
the mere act of reminding a witness she has an obligation to
testify truthfully, or inviting a witness’s counsel to discuss the
consequences of perjury with her client, qualifies as a due
process violation or otherwise constitutes misconduct. Indeed,
the case law is to the contrary. (Cf. People v. Harbolt (1988) 206
Cal.App.3d 140, 155 [no misconduct where prosecutor’s
“comments . . . amounted to a ‘mere warning’ about the dangers
14
The court invited Rowan’s attorney to remind her client
she was “supposed to be telling the truth and volunteering
answers without the prosecutor having to constantly remind her
of what her statements have been in the past.” After Celina
repeatedly testified that she could not remember whether
Gonzalez had said he was carrying a gun at the time of the
murder, and then asked the prosecutor why he kept asking her
that question, the trial court directed her not to ask the
prosecution questions and then asked Celina’s attorney whether
she would “wish to talk to [her] client.”
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of perjury”]; Williams v. Woodford (9th Cir. 2004) 384 F.3d 567,
603 [“ ‘merely warning a witness of the consequences of perjury’
does not unduly pressure the witness’s choice to testify or violate
the defendant’s right to due process”].)
The primary authority Gonzalez relies on, Webb v. Texas
(1972) 409 U.S. 95 (Webb), has little in common with this case.
In Webb, the trial court, acting in the presence of the jury, told
the defense’s only witness that he did not have to testify and
further directed that if he lied under oath, the court would
“personally see” to it that the grand jury would indict him for
perjury and that he would likely be convicted and sentenced to
several years in prison (and also impair his chances for parole).
(Id. at pp. 95–96.) After receiving this warning, the witness
chose not to testify. The Supreme Court found that such conduct
violated the defendant’s right to due process, explaining that the
“lengthy admonition” had gone far beyond merely warning the
witness of the “necessity to tell the truth,” and had instead used
“unnecessarily strong terms [that] could well have exerted such
duress on the witness’ mind as to preclude him from making a
free and voluntary choice whether or not to testify.” (Id. at pp.
97, 98.)
Nothing similar occurred here. The trial court in this case
merely called the witness’s attention to the importance of
testifying in a truthful manner and, outside the presence of the
jury, invited each witness’s counsel to consult with their client
about “telling the truth and volunteering answers without the
prosecutor having to constantly remind her of what her
statements have been in the past.” We see nothing in these
admonitions that was so extreme as to amount to a due process
violation.
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We likewise find that Gonzalez has failed to establish that
the prosecution engaged in unlawful coercion by reminding the
witnesses they were under oath, referencing prior statements
they had made to law enforcement and, on a single occasion,
inquiring whether Rowan was aware that she was facing a
three-year jail sentence. Again, Gonzalez cites no authority in
which similar statements were found to constitute prosecutorial
misconduct. The primary authority he cites is United States v.
Juan (9th Cir. 2013) 704 F.3d 1137, 1142 (Juan), which held
that under the “principles of Webb[, supra, 409 U.S. at page 95],”
a prosecutor’s “substantial and wrongful interference with
a . . . witness that . . . leads the witness to materially change his
or her prior trial testimony can . . . violate due process.” (Ibid.)15
We find nothing in the prosecution’s conduct that
amounted to “substantial and wrongful interference” with the
witnesses’ testimony. (Juan, supra, 704 F.3d at p. 1142.) When
faced with two hostile witnesses who had provided testimony
that was inconsistent with their prior statements to law
15
Gonzalez also cites People v. Medina (1974) 41 Cal.App.3d
438, which held that an immunity agreement requiring the
cooperating witness to provide testimony that was materially
identical to the statements he had previously made to police was
constitutionally impermissible. We have clarified that the
principles of Medina are implicated only when “the bargain is
expressly contingent on the witness sticking to a particular
version . . . .” (People v. Garrison (1989) 47 Cal.3d 746, 771.)
Rowan and Celina were not subject to any such requirement.
Instead, their plea agreements provided only that they would
testify truthfully. (See People v. Allen (1986) 42 Cal.3d 1222,
1252 [“although there is a certain degree of compulsion inherent
in any plea agreement or grant of immunity, it is clear that an
agreement requiring only that the witness testify fully and
truthfully is valid”].)
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enforcement, or otherwise claimed not to remember key aspects
of what they had told police, the prosecution reminded them of
their prior statements or their duty to testify truthfully. Those
reminders do not qualify as misconduct. Likewise, the isolated
question the prosecution asked Rowan about whether she
wanted to receive a three-year sentence was not so extreme as
to substantially interfere with her testimony or otherwise
“involve[] the use of deceptive or reprehensible methods.”
(Morales, supra, 25 Cal.4th at p. 44.) Under “the totality of the
circumstances” presented here (Juan, supra, 704 F.3d at p. 1142
[“substantial interference inquiry is [assessed] under the
totality of the circumstances”]), we find no witness interference
nor any misconduct in the prosecutor’s limited admonitions to
the witnesses.16
16
It is also unclear what prejudice Gonzalez could have
suffered from such conduct. Gonzalez’s central contention
seems to be that in the absence of the prosecution’s admonitions
about providing truthful answers, the witnesses might have
provided testimony that differed from what they had previously
told the police. But as the witnesses acknowledged at trial, they
had made several recorded statements to law enforcement along
with “a proffer under oath about things that occurred.” Thus,
had the witnesses testified in a manner that was inconsistent
with what they told police, which is apparently what Gonzalez
contends they would have done had the court and prosecutor not
“interfered” with them, the prosecution would have been able to
cross-examine them with their prior conflicting statements,
many of which were made under oath. The jury would therefore
know their current testimony conflicted with prior statements
they had made to law enforcement.
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7. The court did not improperly restrict cross-examination
Gonzalez also argues the trial court violated his right to
confrontation when it sustained objections during the cross-
examinations of Rowan and Celina. We find no error.
a. Background
During cross-examination, defense counsel asked Rowan
if she was concerned “whether or not [she was] going to get a
deal on [her] case” and if she was afraid of going to prison for
three years. She responded yes. Defense counsel then asked,
“You don’t want to go to prison for three years, do you?” Rowan
responded no.
Defense counsel then asked Rowan, “So you’re trying to
make sure that you say everything that the prosecutor wants
you to say, aren’t you?” The prosecution objected to the question
as argumentative, and the trial court sustained the objection.
Defense counsel attempted to reframe her question several
times, asking Rowan if she was giving testimony that she
thought would “be pleasing to the prosecutor”; whether she was
“trying to make sure [she said] anything that the prosecution
want[ed] [her] to say”; and whether she was concerned that she
would spend three years in prison if the prosecution “is not in
agreement with what [she] said.” The trial court sustained
objections to all these questions.
During a sidebar, defense counsel explained she was
trying to ask Rowan if the testimony she had provided on direct
examination was “tainted by the fact that if the prosecutor [is]
not in agreement, she will get her three years.” The trial court
stated, “You can ask her that. That’s a different question. You
can certainly ask her that, yes.” Following the sidebar, defense
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counsel asked Rowan, “Is your testimony here today given in
such a way that you feel will cause you not to get three years in
state prison?” Rowan answered yes. Defense counsel then
asked Rowan, “So you are concerned about what you say here
today may affect you in terms of getting the three years in state
prison?” Again, Rowan answered yes.
When cross-examining Celina, defense counsel engaged in
a similar line of questioning, inquiring whether she was
“concerned about [what] sentence [she] might get.” Celina
answered yes. Defense counsel then asked, “And you want to
agree with the prosecutor; isn’t that right?” The prosecution
objected to the question as argumentative, and the trial court
sustained the objection. Defense counsel asked Celina if the
prosecution “has some control over what kind of sentence you
get?” The prosecution objected on relevance grounds and the
trial court sustained the objection. Defense counsel then asked
Celina, “Do you feel that the prosecutor may make an argument
at your sentencing time with respect to what sentence you may
get?” Celina responded yes. Counsel also asked her if she
“want[ed] to give testimony that will help [her] out at [her]
sentencing.” Celina again answered yes.
b. Discussion
Gonzalez contends the trial court violated his right to
confrontation by improperly limiting the cross-examination of
Rowan and Celina. (See People v. Mora and Rangel (2018) 5
Cal.5th 442, 476 [a defendant “possesses a fundamental right to
confront the witnesses against [him]. [Citations.] Cross-
examination is a cornerstone of that fundamental right”].) To
establish such a claim, Gonzalez must show he was “prohibited
from engaging in otherwise appropriate cross-examination
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designed to show a prototypical form of bias on the part of the
witness.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680
(Van Arsdall).) A trial court maintains “ ‘wide latitude insofar
as the Confrontation Clause is concerned to impose limits’ ” on
cross-examination. (People v. Mendez (2019) 7 Cal.5th 680, 703)
“ ‘ “[U]nless the defendant can show that the prohibited cross-
examination would have produced ‘a significantly different
impression of [the witness’s] credibility’ [citation], the trial
court’s exercise of its discretion in this regard does not violate
the Sixth Amendment.” ’ ” (People v. Pearson (2013) 56 Cal.4th
393, 455–456.)
Gonzalez argues the trial court improperly prevented
counsel from asking questions that were intended to show the
testimony Rowan and Celina provided on direct examination
was meant to “please the prosecutor” so that the prosecutor
“would not incarcerate them for three years.” The record shows,
however, that the defense was permitted to ask questions that
elicited that very information. After a sidebar, defense counsel
was permitted to ask Rowan whether she was worried that her
answers to the prosecutor’s questions might affect her “in terms
of getting three years in state prison” and whether she had
“given [her testimony] in such a way that . . . [would] cause [her]
not to get three years in prison.” She responded affirmatively to
both questions. Counsel was permitted to elicit similar
testimony from Celina, inquiring whether the answers Celina
had provided on direct examination had been made “to help
[her]self out at [her] sentencing.” Counsel was also permitted to
ask Celina whether she “want[ed] to give testimony that [would]
help [her] out at [her] sentencing.”
Thus, the record makes clear defense counsel was allowed
to ask Rowan and Celina questions that were intended to
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examine whether the answers they provided on direct
examination were tainted by their desire to secure a lesser
sentence. While the trial court prohibited the defense from
asking differently phrased questions that were meant to
examine that same issue, we fail to see how those questions
would have produced “a significantly different impression” (Van
Arsdall, supra, 475 U.S. at p. 680) of the witnesses’ credibility.
8. The trial court did not err in admitting Gonzalez’s
statements regarding a crime involving a Mercedes
Gonzalez argues the trial court should have excluded a
video clip in which he and undercover detective Javier Clift were
shown discussing a crime involving a Mercedes. In an earlier
portion of their recorded conversation (the admission of which
Gonzalez has not contested), Clift and Gonzalez discussed
Gonzalez’s participation in a serious, possibly capital, offense
that appeared to match the circumstances of Rosa’s murder. In
the clip Gonzalez challenges here, Clift asks Gonzalez why he
was transferred from prison. Gonzalez responded, “I hope it’s
for the Mercedes. I’ll be like, I’ll take it Your Honor. Give it to
me. How much 7, 10, 15, 20? Anything else.” Clift and another
detective who also heard Gonzalez discussing this crime both
described it as a “carjacking.”
Defense counsel argued the statements Gonzalez made in
the clip were inadmissible because they referenced another
crime that was unrelated to Rosa’s murder. The prosecution,
however, contended the statements qualified as a “form of
admission.” The trial court agreed, concluding that the evidence
was intended to show “a guilty frame of mind in that he’s hoping
his current incarceration is not for the murder of the named
victim in this case, but for a car theft instead. So that the other
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crimes evidence can be instructed away in the sense that the
jury would be advised they are not to consider it, but only
consider it as to his state of mind with respect to his knowledge
of this crime.” In response, defense counsel argued the clip
might be admissible if Gonzalez had referenced the murder, but
he had only mentioned the carjacking. The trial court disagreed,
explaining, “Well its implicit. It’s an adoptive admission. Even
if Gonzalez is not mentioning the murder, it is implicit that that
is what the discussion is about.”
On appeal, Gonzalez argues that the clip should have been
excluded because: (1) it was not relevant to the charged crime;
(2) the sole purpose of the evidence was to show Gonzalez’s bad
character (see Evid. Code, § 1101, subd. (a)); (3) Gonzalez’s
statements did not qualify as adoptive admissions and therefore
should have been excluded as hearsay; and (4) even if otherwise
admissible, the evidence was more prejudicial than probative,
and thus inadmissible under Evidence Code section 352. We
review each of these claims under the abuse of discretion
standard. (People v. McKinnon (2011) 52 Cal.4th 610, 655 [“On
appeal, we review for abuse of discretion a trial court’s ruling on
whether evidence is relevant, not unduly prejudicial, and thus
admissible”]; People v. Memro (1995) 11 Cal.4th 786, 864 [“We
review the admission of evidence under Evidence Code section
1101 for an abuse of discretion”]; People v. Rogers (2013) 57
Cal.4th 296, 326 (Rogers) [“ ‘ “Rulings made under [Evidence
Code sections 1101 and 352, including those made at the guilt
phase of a capital trial] are reviewed for an abuse of
discretion” ’ ”]; People v. Martinez (2000) 22 Cal.4th 106, 139
[“we apply the abuse of discretion standard when reviewing a
trial court’s decision that evidence falls within a hearsay
exception”].)
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“Relevant evidence is evidence ‘having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’ [Citation.]
‘ “The test of relevance is whether the evidence tends, ‘logically,
naturally, and by reasonable inference’ to establish material
facts such as identity, intent, or motive.” ’ ” (People v. Wilson
(2006) 38 Cal.4th 1237, 1245.) We find no abuse of discretion in
the trial court’s determination that, understood in context,
Gonzalez’s statements regarding the carjacking tended to
establish his identity as a participant in Rosa’s murder. As
explained above, the recordings showed that before Gonzalez
referenced the carjacking, Clift and Gonzalez had been
discussing a serious crime that matched the circumstances of
Rosa’s murder. The fact that Gonzalez subsequently expressed
hope that he had been transferred to the prison for an unrelated
carjacking and would be pleased to be facing a sentence of only
20 years in prison, raises an inference that he committed the
more serious crime he had been discussing with Clift.
Moreover, contrary to Gonzalez’s assertions, the record
makes clear there was a purpose for introducing his statements
about the carjacking other than to show bad character or
disposition to commit the charged offense. As the trial court
explained, the statements tended to show that Gonzalez
believed the other crime he had committed, which matched the
circumstances of Rosa’s shooting, was a more serious crime.
(See Evid. Code, § 1101, subd. (b) [“Nothing in this section
prohibits the admission of evidence that a person committed a
crime . . . when relevant to prove some fact (such as
motive, . . . knowledge, [or] identity . . . ) other than his or her
disposition to commit such an act”].)
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We likewise find no abuse of discretion in the trial court’s
decision to admit the statement as a form of admission. While
perhaps inaccurately described as an adoptive admission (which
is generally understood to mean a “statement [made] by
someone other than the defendant . . . if the defendant ‘with
knowledge of the content thereof, has by words or other conduct
manifested his adoption [of] or his belief in its truth’ ” (People v.
Davis (2005) 36 Cal. 4th 510, 535)), the statement was clearly
admissible under Evidence Code section 1220 as a “statement[]
of a party.” (People v. Horning (2004) 34 Cal.4th 871, 898
(Horning); see ibid. [declining to consider the defendant’s
assertion that statement did not qualify as a “statement[]
against interest” because the statement was “clearly”
admissible as the “statement[] of a party”].) While “sometimes
referred to as the exception for admissions of a party,” Evidence
Code section 1220 “covers all statements of a party, whether or
not they might otherwise be characterized as admissions.”
(Horning, at p. 898, fn. 5, italics omitted; see Davis, at p. 535
[“[a] defendant’s own hearsay statements are admissible”].)
Because Gonzalez was the declarant of the statement and the
statement was offered against him, it was not inadmissible
under the hearsay rules. (See Horning, at p. 898 [hearsay rule
does not bar statements when the “ ‘defendant was the
declarant, the statements were offered against him, and he was
a party to the action’ ”].)
Finally, we find no abuse of discretion in the trial court’s
determination that the evidence was more probative than
prejudicial. (See Rogers, supra, 57 Cal.4th at p. 326.)
“ ‘Prejudice for purposes of Evidence Code section 352 means
evidence that tends to evoke an emotional bias against the
defendant with very little effect on issues, not evidence that is
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probative of a defendant’s guilt.’ ” (People v. Valdez (2012) 55
Cal.4th 82, 133.) Our courts have acknowledged that “[a]
limiting instruction can ameliorate section 352 prejudice by
eliminating the danger the jury could consider the evidence for
an improper purpose.” (People v. Hendrix (2013) 214
Cal.App.4th 216, 247; see People v. Coffman and Marlow (2004)
34 Cal.4th 1, 83 [juries are presumed to follow the trial court’s
instructions].)
In this case, the trial court acknowledged it would provide
a limiting instruction directing the jury that evidence of other
crimes was not relevant for bad character or predisposition.
Moreover, the “other crime” referenced in the video clip was far
less inflammatory than the murder Gonzalez was being tried
for; indeed, Gonzalez’s videotaped statements described the
incident involving the Mercedes as merely taking someone “for
a little ride.” (See People v. Case (2018) 5 Cal.5th 1, 41 [“The
danger of undue prejudice is . . . lessened if evidence of the
uncharged acts was ‘no more inflammatory than the testimony
concerning the charged offenses’ ”].) Gonzalez, in turn, has
provided no explanation why the probative value of this other
crimes evidence was substantially outweighed by the probability
that it would create a substantial danger of undue prejudice.
Instead, he merely states in conclusory fashion that the other
crimes evidence would be more prejudicial than probative. (Cf.
Bryant, supra, 60 Cal.4th at p. 382 [“reject[ing] . . . conclusory”
arguments raised in defendant’s brief]; People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573 [“Perhaps the most
fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error”].) For all
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those reasons, Gonzalez has failed to establish the trial court
abused its discretion in admitting the clip.
9. Gonzalez has failed to establish any error regarding the
admission of oral testimony describing the
conversations depicted in the video clips
Gonzalez argues the trial court erred when it allowed
several of the detectives who participated in the undercover
operation to testify about the conversations depicted in the video
clips that were shown to the jury. The testimony was intended
to provide context about how the conversations arose, clarify
what was being discussed, and explain the meaning of certain
slang terms. As one example, the prosecution asked a testifying
detective to identify who he understood Gonzalez to be talking
about in a video clip where Gonzalez references “the White boy.”
The detective testified that Gonzalez was referring to Flint and
then explained his basis for that belief. In another exchange, a
detective was asked what he was referring to in a portion of a
video where the detective was heard saying, “it’s got to come out
sooner or later.” The detective responded that he was referring
to “the murder of Rosa,” and then explained that he had been
talking about that subject with Gonzalez for the entire day. The
detectives also explained the meaning of certain slang terms like
“hooda” (a police officer (see ante, at p. 5)) and “cappa” (a person
who has committed a crime that would subject him to capital
punishment (ibid.)).
Gonzalez initially contends that the detectives’ testimony
violated the “secondary evidence rule” (People v. Goldsmith
(2014) 59 Cal.4th 258, 269), which generally prohibits the
admission of oral testimony to prove the content of writings.
(See Evid. Code, §§ 1521, 1523; People v. Panah (2005) 35
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Cal.4th 395, 475 (Panah) [a videotape is a writing for purposes
of the secondary evidence rules].) We disagree.
First, it is undisputed that the jury was shown the
writings in question (in this case videos), and Gonzalez has cited
no case in which the secondary evidence rule was applied when
the writing itself was admitted into evidence. (See Panah,
supra, 35 Cal.4th at p. 475 [“The purpose of the best evidence
rule is ‘to minimize the possibilities of misinterpretation of
writings by requiring the production of the original writings
themselves, if available’ ”]; People v. Son (2020) 56 Cal.App.5th
689, 696 [“Defendant has not pointed to any case in which the
secondary evidence rule was applied even though the writing
itself was admitted into evidence, nor are we aware of any such
case”].) Second, as the trial court observed, the purpose of the
detectives’ testimony was not to prove the actual words that
were said in the video, but rather to give general context as to
the subject matter of the conversations that were depicted in the
recording and explain the meaning of some of the terms the
speakers used. (See Son, at p. 1170 [officer’s testimony
“highlight[ing] important details” of a video were not intended
to prove the content of the writing and thus did not violate
secondary evidence rule].)
Gonzalez separately contends that even if the secondary
evidence rule is inapplicable, the detectives’ testimony
describing the nature of the conversations shown on the videos
“served only to ‘invade the province of the jury,’ which was
perfectly capable of drawing their own conclusion” about the
subject matter of those conversations. Although Gonzalez has
not identified exactly which statements he believes should have
been excluded, we understand his claim to challenge those
portions of the detectives’ testimony in which they conveyed
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what they understood Gonzalez to be discussing during certain
parts of the video.17
We will assume Gonzalez has preserved this claim and
reject the argument on its merits.18 “A lay witness may testify
to an opinion if it is rationally based on the witness’s perception
and if it is helpful to a clear understanding of his testimony.”
(People v. Farnam (2002) 28 Cal.4th 107, 153, citing Evid. Code,
§ 800.) “A trial court’s ruling on the admission or exclusion of
[such] evidence is reviewed for abuse of discretion.” (People v.
DeHoyos (2013) 57 Cal.4th 79, 131.) The detectives’ description
of what they understood Gonzalez to be discussing was based on
the prior conversations they had overheard in the holding cell.
Thus, the testimony was clearly predicated on their personal
observations. Moreover, the trial court could reasonably
conclude such testimony aided the jury in understanding what
the detectives believed they had observed. Gonzalez has cited
no authority finding similar testimony — i.e., witness
17
Gonzalez’s brief clarifies that he is not challenging the
portion of the detectives’ testimony explaining “certain gang
terms that had to be translated so that the jury could
understand their meaning.”
18
Although Gonzalez’s brief cites to numerous pages in the
trial transcript where defense counsel made objections during
the detectives’ testimony, the record shows that most of those
objections are unrelated to the argument he presents
here (“objection, that’s vague”; “objection, that would be
speculation”; “[this testimony] is cumulative”; “objection,
leading”). In only one instance did Gonzalez object to a
statement on the basis that the witness had improperly
conveyed “a conclusion.” (See People v. Marks (2003) 31 Cal.4th
197, 228 [“A general objection to the admission . . . of evidence,
or one based on a different ground from that advanced at trial,
does not preserve the claim for appeal”].)
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statements that merely explain the context of a conversation —
to be inadmissible. We find no abuse of discretion in the trial
court’s decision to admit what amounted to lay opinion
testimony.
B. Penalty Phase Issues
1. Gonzalez has failed to establish error with respect to the
admission of his statements referencing other crimes
Gonzalez challenges the admission at the penalty phase of
two video clips recorded during the undercover operation.
a. Background
Gonzalez sought to exclude a video clip in which he made
statements “concerning his participation in some otherwise
unspecified carjacking involving a Mercedes.” The defense
objected on the grounds that: (1) the video was cumulative of
evidence the prosecution had presented during the guilt phase;
and (2) the evidence only tended to prove a general propensity
to commit crime. The prosecution argued the video was
admissible as evidence of criminal activity involving the use of
force (see § 190.3, factor (b)). The trial court overruled the
objection.
Gonzalez also challenged the admission of a video clip in
which he told an undercover officer he had been involved in 27
armed robberies as a juvenile. Defense counsel objected that
although the video contained a statement in which Gonzalez
referenced having committed 27 robberies, the prosecution only
intended to introduce corroborating evidence of some of those
incidents. Counsel argued that because the prosecution had
provided no “foundation for these so-called 27 robberies,” and
could not “prove the corpus on all of these 27 robberies,” it was
improper to admit a statement referencing that number of
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robberies. The trial court agreed it was improper to include the
portion of the statement referencing 27 robberies since the
prosecution did not actually intend to prove each of those
robberies. The court provided the prosecution the option of
deleting the reference to the number of robberies or excluding
the clip altogether. The prosecution explained that it intended
to remove the portion of the clip referencing the number of
robberies and defense counsel posited no further objection. The
prosecution thereafter played the two clips and presented
several witnesses who testified about a carjacking involving
Gonzalez and numerous robberies that he was believed to have
committed.
b. Discussion
On appeal, Gonzalez argues that that while evidence of
criminal activity involving the use of force is generally
admissible at the penalty phase (see § 190.3, factor (b)), the trial
court should have excluded the video clips referencing the
carjacking and the string of robberies under the corpus delicti
rule, which applies to the use of factor (b) crimes. (See Valencia,
supra, 43 Cal.4th at pp. 296–297; see ante, at pp. 15–16
[explaining the corpus delicti rule].) According to Gonzalez, the
prosecution failed to identify any evidence apart from his own
statements indicating that the carjacking or the robberies
actually occurred.
The Attorney General argues that Gonzalez has forfeited
any argument that such evidence was inadmissible under the
corpus delicti rule because he failed to raise any such objection
at the trial court. We agree that Gonzalez has forfeited the
particular claims he raises here. Regarding the recorded
statements referencing a carjacking, defense counsel never
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raised a corpus delicti objection. (See Horning, supra, 34
Cal.4th at p. 899 [defendant forfeited argument that “the
prosecution did not establish the corpus delicti of the [uncharged
offense]”].)
Regarding the video referencing the robberies, defense
counsel made it clear he was objecting to the portion of the video
in which Gonzalez stated that he had committed 27 robberies.
Such evidence was improper, defense counsel asserted, because
the prosecution only intended to present independent evidence
of some of those robberies, and thus “could not prove the corpus
on all . . . 27 robberies.” The trial court agreed and made the
prosecution remove the reference to the number of robberies. If
defense counsel believed this was an insufficient remedy, and
that the video clip should be excluded even with that
modification, it had a duty to raise that argument with the court.
Moreover, the prosecution presented sufficient evidence to
establish the corpus delicti of both a carjacking and multiple
robberies. Regarding the carjacking, the prosecution presented
testimony from a victim who stated that he had been taken to a
house where he was carjacked. A detective testified the victim
of the carjacking had picked Gonzalez out of a photo array.
When describing the carjacking incident to undercover agents,
Gonzalez had stated that the carjacking victim had been
brought to a house, which matched the victim’s description of
the incident. Finally, Rowan testified that after Gonzalez had
told her about the carjacking, she had seen him driving a car
that was similar in appearance to the one he had described to
her.
Regarding Gonzalez’s admission that he had committed
robberies as a juvenile, the prosecution presented testimony
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from numerous victims who were robbed at gunpoint along with
testimony from an investigating officer verifying that several of
the victims had identified Gonzalez as the perpetrator. (See
ante, at p. 10.) This evidence justified the admission of
Gonzalez’s statement that he had committed multiple
robberies.19
2. The improper aspects of the victim impact video were
harmless
Gonzalez challenges the admission of an eight-minute
video in which Rosa’s friends and colleagues provided emotional
statements lauding their relationship with her and describing
the pain and loss they experienced from her death. Many of the
participants spoke from a cemetery with music playing in the
background. At times, the audio of the participant’s tributes
was juxtaposed with photos of Rosa. Several of the participants
in the video also provided victim impact testimony during the
penalty phase of the trial.
In assessing Gonzalez’s objection to the video, the trial
court explained that it did “not find [the video] dramatic or of
the sort that would cause one to cry,” nor did the video contain
19
Gonzalez’s contention that his admissions regarding the
carjacking and his prior robberies should have been excluded
also appears to rely on an aspect of the corpus delicti rule that
has been abrogated. As noted above (see ante, at p. 16, fn. 3),
we have previously held that article I, section 28, subdivision (d)
of the California Constitution abrogated the corpus delicti rule
“insofar as [it] restricts the admissibility of incriminatory
extrajudicial statements by the accused.” (Valencia, supra, 43
Cal.4th at p. 297, italics added.) Thus, the rule no longer
operates to exclude evidence of a defendant’s extrajudicial
statements. (Ibid. [“the corpus delicti rule no longer prevents
admission of the confession”].)
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“irrelevant information or inflammatory rhetoric that diverted
the jury’s attention from its proper role or invite an irrational,
purely subjective response.” In the court’s view, the video was
not “highly emotional in any sense. None of [the people in the
video] seemed anything other than smiling and happy
reminiscing about a lost friend or lost relative depending upon
who was talking.” The court also rejected the argument that
individuals in the video were cumulative of those same
witnesses testifying in court.
Although we have not adopted any “bright-line rules”
(People v. Prince (2007) 40 Cal.4th 1179, 1288) “pertaining to the
admissibility of videotape recordings of victim interviews”
(ibid.), we have warned that “courts must exercise great caution
in permitting the prosecution to present victim-impact evidence
in the form of a lengthy videotaped or filmed tribute to the
victim” (id. at p. 1289). While it is appropriate to use a video
“ ‘ “ ‘reminding the sentencer . . . [that] the victim is an
individual whose death represents a unique loss to society’ ”
[citation], . . . the prosecution may not introduce irrelevant or
inflammatory material that “ ‘diverts the jury’s attention from
its proper role or invites an irrational, purely subjective
response.’ ” ’ ” (People v. Kelly (2007) 42 Cal.4th 763, 794
(Kelly).) We have highlighted some characteristics of victim
impact videos that can be especially problematic: “Particularly
if the presentation lasts beyond a few moments, or emphasizes
the childhood of an adult victim, or is accompanied by stirring
music, the medium itself may assist in creating an emotional
impact upon the jury that goes beyond what the jury might
experience by viewing still photographs of the victim or listening
to the victim’s bereaved parents.” (Prince, at p. 1289.) Whether
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the admission of such evidence constitutes error must be
considered “under the circumstances” of each case. (Ibid.)
While we normally review for ourselves the content of such
videos, we accord some deference to the trial court’s decision to
admit the tape when, as here, the record confirms that the court
viewed the videotape, considered its possible improper
emotional effects and exercised its discretion to allow it. (See
People v. Zamudio (2008) 43 Cal.4th 327, 366 (Zamudio).)
Where the videotape includes impermissible elements, we
assess whether those elements separated from the permissible
features of the videotape prejudiced defendant. (See Kelly,
supra, 42 Cal.4th at pp. 798–799.)
We have viewed the videotape and find that it does contain
some improper features. The music in the video has no apparent
relevance other than to enhance the emotional effect of the
video. (See People v. Sandoval (2015) 62 Cal.4th 394, 442
(Sandoval) [“because background music in victim impact
presentations provides no relevant information and is
potentially prejudicial, it is never permitted”]; Kelly, supra, 42
Cal.4th at p. 798.) Many of the individuals in the video offering
testimonials are in a cemetery, and the camera moves toward
them at times to draw attention to their emotional responses.
(See ibid. [“Trial courts must not permit irrelevant . . . video
techniques that enhance the emotion of the factual
presentation”; “The videotape must . . . not present a ‘staged
and contrived presentation’ ”].) Because these features of the
video had no apparent purpose other than to increase the
viewer’s emotional response, the trial court should have ordered
the prosecution to remove them.
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However, “we find ‘no reasonable possibility’ that the jury
would have reached a different penalty verdict if [these
objectionable features] had been omitted.” (Sandoval, supra, 62
Cal. 4th at p. 442.) During the penalty phase, the prosecution
presented voluminous testimony from many witnesses
describing numerous violent crimes that Gonzalez had
perpetrated against them. Those crimes involved a string of
armed robberies that occurred in 1994, two shootings that
occurred in 2006 (one of which left the victim with five bullet
wounds), an armed carjacking and an attack on a prison guard.
(See ante, at pp. 10–11.) Moreover, apart from the victim impact
video, the jury heard extensive in-person victim impact
testimony from coworkers, friends and family members, some of
whom also appeared in the video. Those witnesses described,
among other things, Rosa’s strong work ethic, her bright and
kind personality, her willingness to help other people and their
profound sense of loss when she was killed. Rosa’s partner
described how they met, their life together and their plans for
adopting a child. Rosa’s sister described their close relationship
and Rosa’s early life. (See ante, at p. 12.) Accordingly, even
without the video, the jury would have heard much of the same
type of emotional testimony. Given all this evidence, “we see no
reasonable possibility [that the objectionable] portions of the
videotape affected the penalty determination.” (Kelly, supra, 42
Cal.4th at p. 799.)20
20
Gonzalez also argues that the video impermissibly called
for vengeance. Because the video contains no explicit calls for
vengeance, we reject the claim. (See Kelly, supra, 42 Cal.4th at
p. 797 [“the tape expressed no outrage over her death, just
implied sadness. It contained no clarion call for vengeance”].)
70
PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
3. Constitutionality of the death penalty
Gonzalez challenges the constitutionality of California’s
death penalty statute and implementing statutes on numerous
grounds that we have previously rejected. We decline to
reconsider our previous holdings that:
(i) “ ‘[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court’ ” (People v. Dalton (2019) 7 Cal.5th
166, 267 (Dalton));
(ii) “ ‘section 190.3, factor (a), on its face or as interpreted
and applied, [does not] permit arbitrary and capricious
imposition of a sentence of death’ ” (Dalton, supra, 7 Cal.5th at
p. 267);
(iii) “ ‘[t]he death penalty statute does not lack safeguards
to avoid arbitrary and capricious sentencing . . . or constitute
cruel and unusual punishment on the ground that it does not
require either unanimity as to the truth of aggravating
circumstances or findings beyond a reasonable doubt that an
aggravating circumstance (other than Pen. Code, § 190.3, factor
(b) or (c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.’ [Citation] Nothing in Hurst v. Florida
(2016) 577 U.S. [92] . . . , Cunningham v. California (2007) 549
U.S. 270 . . . , Blakely v. Washington (2004) 542 U.S.
296, . . . , Ring v. Arizona (2002) 536 U.S. 584 . . . ., or Apprendi
v. New Jersey (2000) 530 U.S. 466 . . . , affects our conclusions in
this regard” (Dalton, supra, 7 Cal.5th at p. 267);
(iv) “ ‘[w]ritten findings by the jury during the penalty
phase are not constitutionally required, and their absence does
71
PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
not deprive defendant of meaningful appellate review’ ” (Dalton,
supra, 7 Cal.5th at p. 268);
(v) “ ‘[t]he federal constitutional guarantees of due process
and equal protection, and against cruel and unusual
punishment [citations], do not require intercase proportionality
review on appeal’ ” (Dalton, supra, 7 Cal.5th at p. 268);
(vi) “ ‘ “capital and noncapital defendants are not similarly
situated and therefore may be treated differently without
violating” a defendant’s right to equal protection of the laws, due
process of law, or freedom from cruel and unusual punishment’ ”
(Dalton, supra, 7 Cal.5th at p. 268);
(vii) “ ‘ “[t]he death penalty as applied in this state is not
rendered unconstitutional through operation of international
laws and treaties” ’ ” (Dalton, supra, 7 Cal.5th at p. 268);
(viii) “the trial court [is not] constitutionally required to
instruct the jury that section 190.3’s mitigating factors [can] be
considered only as mitigating factors and the absence of
evidence supporting any one should not be viewed as an
aggravating factor” (People v. Duff (2014) 58 Cal.4th 527, 570).
C. Cumulative Error
Gonzalez contends the cumulative effect of errors at the
guilt and penalty phase requires reversal. As discussed above,
for purposes of the guilt phase, we have assumed that the
admission of portions of Juli Watkins’s testimony regarding the
DNA evidence was error but conclude that any such error was
harmless beyond a reasonable doubt. There are no other errors
to cumulate with respect to guilt.
For purposes of the penalty phase, we have found that
certain aspects of the victim impact video submitted at the
72
PEOPLE v. GONZALEZ
Opinion of the Court by Groban, J.
penalty phase may have been unduly emotional or cumulative
of other testimony but conclude that any error was harmless
beyond a reasonable doubt. There are no other errors to
cumulate with respect to penalty.21
III. DISPOSITION
The judgment of the superior court is affirmed.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
21
Although Gonzalez’s opening brief asserts that “guilt
phase errors that may not be prejudicial to the guilt phase may
nevertheless improperly and adversely impact the jury’s penalty
determination,” he has provided no argument or explanation
regarding how any of the purported errors that he contends were
committed in the guilt phase impacted the penalty
determination. (See People v. Gamache (2010) 48 Cal.4th 347,
378 [rejective cumulative error claim where defendant failed to
show how error that “had no impact on the guilt verdict” “could
have affected the penalty phase verdict”].)
73
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Gonzalez
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S163643
Date Filed: December 2, 2021
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Joan Comparet-Cassani
__________________________________________________________
Counsel:
Glen Niemy, under appointment by the Supreme Court, for Defendant
and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Lance E.
Winters, Assistant Attorney General, Keith H. Borjon, Jaime L.
Fuster, Eric J. Kohm and Lindsay Boyd, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Glen Niemy
11 Prescott Street #2
Salem, MA 01970
(207) 699-9713
Lindsay Boyd
Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6012