People v. Mendez , 7 Cal. 5th 680 ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIAN ALEJANDRO MENDEZ,
Defendant and Appellant.
S129501
Riverside County Superior Court
RIF090811
July 1, 2019
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
PEOPLE v. MENDEZ
S129501
Opinion of the Court by Cuéllar, J.
This case concerns the murders of Michael Faria and
Jessica Salazar. The People charged three members of a gang
called North Side Colton with murdering Faria after he claimed
allegiance to a rival gang called West Side Verdugo, and with
murdering Salazar after she witnessed Faria’s killing. The
three gang members charged here were Joe “Gato” Rodriguez,
Daniel “Huero” Lopez, and Defendant Julian Alejandro “Midget”
Mendez. Mendez was tried jointly with Rodriguez and Lopez,
but by a separate jury. Mendez was convicted and sentenced to
death. This automatic appeal concerns him alone. We affirm.
I. BACKGROUND
Among the most crucial evidence presented against
Mendez at trial was testimony from two people: a friend of the
accused, Samuel “Devil” Redmond, who pleaded guilty to first
degree murder to avoid the death penalty; and a friend of the
victims, Sergio Lizarraga. The following description of the
crimes relies primarily on accounts from these two witnesses.
A. The Murder of Michael Faria
Redmond and Mendez had been friends since childhood
and shared an apartment in Colton, California. At trial,
Redmond testified about what happened on the night of the
killings. He and Mendez drank alcohol and smoked
methamphetamine in their apartment with Lopez, Mendez’s
eventual codefendant. The three men then set out in Redmond’s
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SUV, a black Nissan Pathfinder, to meet up with friends living
at a nearby Four Seasons apartment complex. There, they
encountered Mendez’s other eventual codefendant, Rodriguez,
who suggested they meet some fellow North Side Colton gang
members — specifically, Art “Rascal” Luna and his
brothers — at their house on Michigan Street in Colton. When
the four of them arrived, they saw Luna in a car with a “bunch
of kids.” And walking along the street was another group of
kids, whom Redmond estimated were 15 or 16 years old.
Among this latter group were the murder victims in this
case: Michael Faria and Jessica Salazar. With them were
Lizarraga, Greg Frias, and David Flores. Lizarraga later
provided the most detailed witness account of Faria’s death.
According to Lizarraga’s testimony, he and his four companions
saw a black SUV park across the street. The man who appeared
to have been the driver emerged from the car and walked to the
house. Two other men exited the SUV and struck up a
conversation with Salazar. Faria and Flores were standing
nearby. When Lizarraga beckoned them, they started to walk
away. Then one of the two men said to Salazar, “I think I know
you.” She turned around and started talking to him again.
At that moment, the man who appeared to have been
driving the SUV walked up to Lizarraga and Faria. Faria asked
him, “Where are you from?” Without answering, the man put
the question back to Faria. Faria answered, “I back[] up the
West.” The man retorted, “Fuck the Westside. North [S]ide
Colton.” That worried Lizarraga, who interpreted the back-and-
forth as an escalating gang challenge. Seeking to calm the
situation, Lizarraga tried to get between the man and Faria,
telling the latter, “It’s cool. Just chill out, walk away.” Then, as
Lizarraga turned around, the man punched him in the face.
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Lizarraga persisted in trying to de-escalate the situation.
Moments later, he saw Flores being chased. At that point, Faria
was still standing next to Lizarraga. But then a group of people
descended on Faria and beat him to the ground. Lizarraga,
having backed away, started running towards Faria. Someone
grabbed Lizarraga by the shirt. Salazar intervened and told
Lizarraga’s would-be assailant, “No he’s cool. He’s not from the
West.” The man let go. But before Lizarraga could do anything
else, someone shot Faria. Lizarraga would later tell law
enforcement that he was 75 percent sure Rodriguez shot Faria,
but at trial he could not “remember any faces from that night.”
Redmond testified that, after he alighted from the SUV,
he saw Mendez, Rodriguez, and Lopez talking to Salazar.
Redmond and Lopez began to walk towards Luna’s house across
the street, leaving Mendez and Rodriguez with Salazar and her
friends. Moments later, Redmond heard an argument. Then,
standing with Lopez and Luna, Redmond saw a fight break out
and a crowd gathering. A chase involving Mendez and
Rodriguez ensued. Redmond stayed put, but Lopez and Luna,
the latter of whom had just been handed a gun by his younger
brother, started walking towards the fray. Lopez quickly turned
around and sprinted back. He told Redmond, “Hurry up. Let’s
go get Midget.” So the two men ran back to the SUV and started
driving. Soon after, they saw Mendez and Rodriguez racing
their way. Mendez was holding a gun.
B. The Murder of Jessica Salazar
Redmond also testified about the next few minutes, which
resulted in a second killing. Once he, Lopez, Rodriguez, and
Mendez were back in Redmond’s SUV, they saw Salazar on the
sidewalk “going hysterical,” “crying,” and “not knowing where to
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go.” Mendez directed Rodriguez to tell Salazar that she should
get into the SUV, since they knew each other. Rodriguez did so,
and she complied. Mendez told Redmond, “Drive. Get [us] out
of here.” After stopping back at the Four Seasons, they entered
the freeway and drove. Salazar, meanwhile, was “going nuts,”
crying, and asking repeatedly, “Why did you do that?”
With fuel running low, Redmond pulled into a gas station.
Although at trial his memory of what happened next was
“foggy,” Redmond recalled going to the bathroom with Mendez.
Either Lopez or Rodriguez joined them, and the other stayed
near the car with Salazar. Mendez said, “She’s gotta die.”
From there, they got back in the SUV and started driving
again. Redmond drove for 20 to 30 minutes before coming upon
a dirt road. They took it. Eventually, someone said, “I gotta
take a piss.” Redmond pulled over, and the four men got out.
The area was dark and deserted. “She’s gotta die. She’s gotta
die,” Mendez repeated. He urged Rodriguez to kill Salazar,
saying, “You know her” and “[s]he’s going to identify you.”
Rodriguez refused. But when Mendez told him to “drag her out,”
Rodriguez pulled Salazar from the SUV. She panicked, crying,
“Stop it” and “Don’t.” Rodriguez got back in the SUV, leaving
Mendez and Redmond alone with Salazar. Mendez was holding
a gun, and Salazar was pleading for her life. Mendez told
Redmond to hold her. But Salazar tripped. She fell, started to
get up, raised her hands — and Mendez shot her.
Moments later, someone saw a car approaching and said,
“Come on, let’s go.” Mendez responded, “No, I have to put two
in her head.” He tried to shoot Salazar again, but the gun
jammed. Seeing this, and wary of the oncoming car, Redmond
said, “I’m leaving.” Mendez gave up on trying to clear the jam
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and got into the car with Redmond, Lopez, and Rodriguez. They
drove off into the night.
C. Aftermath
Redmond further testified about what happened after he,
Rodriguez, Lopez, and Mendez departed from the scene of
Salazar’s killing. They set out for Redmond and Mendez’s
apartment. During the drive, Mendez suggested burning the
SUV to get rid of the vehicle, saying he wanted to ensure they
“[c]an’t tie it back to me.” Redmond responded, “You’re fucking
crazy. It’s my truck. I paid for it.”
When they arrived at the apartment, Mendez directed
Redmond not to park in front of the building. Once inside,
Mendez took everyone’s shoes and clothing and put them in a
bag. He also walked them through setting up alibis. Mendez
suggested that Redmond and Lopez say that they were at a
motel the whole night with two female friends. Mendez planned
to say he was with his girlfriend at the apartment. It is unclear
whether Rodriguez crafted an alibi. Several days later,
Mendez’s older brother told Redmond to switch the tires on his
SUV with those from a white Isuzu Rodeo — an SUV similarly
sized to Redmond’s Nissan Pathfinder — which Redmond did.
Mendez was later arrested driving the Rodeo, and its tires
matched the tracks found near Salazar’s body.
D. Trial
At the guilt phase of his trial, a jury found Mendez guilty
of first degree murder for the killings of both Faria and Salazar.
It also found true two special circumstances: that Mendez
committed multiple murders under Penal Code section 190.2,
subdivision (a)(3) and, as to the Salazar murder, that he killed
a witness to prevent her testimony in a criminal proceeding
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under section 190.2, subdivision (a)(10).1 Finally, the jury found
three enhancements to be true. It found that Mendez personally
discharged a firearm causing the deaths of both Faria and
Salazar, within the meaning of section 12022.53, subdivision (d);
that he personally discharged a firearm causing the deaths of
both Faria and Salazar for the benefit of, at the direction of, or
in association with a criminal street gang, within the meaning
of sections 12022.53, subdivision (e), and 186.22, subdivision
(b)(1); and that he committed both murders for the benefit of, at
the direction of, or in association with a criminal street gang,
within the meaning of section 186.22, subdivision (b)(1).
At the penalty phase, the jury returned a death sentence
against Mendez on the two counts of first degree murder, which
the trial court imposed. The trial court also sentenced Mendez
to 56 years to life in prison on the enhancements.
II. DISCUSSION
Mendez mounts multiple challenges to his convictions and
death sentence, which we consider in turn. None warrants
reversal.
A. The Gang Expert’s Testimony
A law enforcement gang expert named Jack Underhill
testified at Mendez’s trial. His testimony addressed gang
culture, the rivalry between the two gangs involved in this case,
and Mendez’s prior contacts with law enforcement. Mendez
argues that the trial court erred by permitting Underhill’s
testimony about Mendez’s prior contacts with police, as well as
his testimony about two other gang-related shootings. Mendez
1
All subsequent statutory references are to the Penal Code
unless otherwise noted.
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argues that these portions of Underhill’s testimony were
improper for two reasons. First, he argues they were irrelevant
or, at the very least, substantially more unfairly prejudicial than
probative. (See Evid. Code, §§ 350, 352.) Second, he contends
they contained testimonial hearsay that, under our decision in
People v. Sanchez (2016) 63 Cal. 4th 665 (Sanchez), was
inadmissible.
We begin by describing Underhill’s testimony in some
detail. Then we analyze the portion of his testimony chronicling
Mendez’s prior police contacts. On this record, we conclude the
trial court did not abuse its discretion in finding this testimony
relevant and its probative value not substantially outweighed
by the risk of unfair prejudice. We further conclude Mendez
failed to preserve his claim of Sanchez error arising from this
portion of Underhill’s testimony. As for Underhill’s testimony
about two other gang-related shootings, any error in admitting
it was harmless under any standard.
1. Facts
Mendez and his codefendants stipulated that North Side
Colton “is a criminal street gang . . . whose members have
engaged in a pattern of criminal gang activity, including, but not
limited to, murder, attempt[ed] murder, drive-by shooting,
robberies, carjackings and witness intimidation.” They further
stipulated that they “are, and were at all relevant times,
members” of that gang. At trial, the People called Underhill as
an expert witness on criminal gangs. Underhill was a 10-year
veteran of the Colton Police Department possessing extensive
experience with local gangs, including North Side Colton and
West Side Verdugo.
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Underhill described how he and other officers tracked
gang activity in the area. Specifically, he told the jury that
officers regularly fill out reports called “S.M.A.S.H.
cards” — which stands for “San Bernardino County Movement
Against Street Hoodlums.” Whenever they contact gang
members or suspected gang members, officers “briefly talk with
them and try to find out exactly what their involvement” with
the gang is. They also take a photo if necessary. Officers record
the information on S.M.A.S.H. cards, which the police
department collects and maintains. But Underhill admitted
that anyone reading a S.M.A.S.H. card is “at the mercy” of
whichever officer filled it out in terms of accuracy.
Underhill also described various aspects of gang culture.
He explained how gangs often have characteristic hand signs
and tattoos that members use to identify themselves. They also
induct new members through various forms of initiation.
Underhill further explained that gangs tend to establish
themselves in certain geographic areas — what gang
investigators call “turf.” Given this emphasis on turf, simply
asking, “Where are you from” is a direct challenge in gang
culture. Because gangs are particularly concerned with earning
“respect” — which, according to Underhill, is more about
instilling fear — such challenges demand an immediate reply.
And violent acts committed by one gang against another
demand an even more violent response.
Underhill then chronicled for the jury the longstanding
rivalry between Mendez and his codefendants’ gang (North Side
Colton) and Faria’s gang (West Side Verdugo). Underhill
explained that those two gangs shared “a well-known hatred
that’s been going on for years due to numerous incidents.” One
of those incidents was the 1994 murder of North Side Colton
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member Jesse “Sinner” Garcia. Another such incident was the
July 1998 murder of Cindy Rodriguez — the mother of Mendez’s
codefendant, Joe “Gato” Rodriguez.
Faria — the first victim in this case — was killed on
February 4, 2000. After confirming that Underhill had heard
Lizarraga’s testimony about the Faria killing, the People asked
Underhill to evaluate Lizarraga’s description of what was said
at the start of the fatal encounter. In Underhill’s opinion, the
back-and-forth that ensued after Faria asked “Where are you
from” meant that “the situation [wa]s escalating” and getting
“[m]ore and more dangerous.” Killing Faria would “build[] a
reputation in the gang world that North Side Colton will do this
kind of thing . . . in hopes that other gangs will fear them.” For
that reason, Underhill agreed that the Faria shooting was
“committed for the benefit of, at the direction of, [and/or] in
association with . . . members of North Side Colton.” Underhill
further opined that there was “no doubt in [his] opinion that
[Salazar] was killed because she could identify” the gang
members who shot Faria, basing that view in part on Redmond’s
testimony “that Mendez said the girl had to die.” So the Salazar
shooting was also, in Underhill’s opinion, committed for the
benefit of, at the direction of, and in association with members
of North Side Colton.
Underhill went on to chronicle five contacts Mendez had
with police in the years before the Faria and Salazar murders.
Those contacts were documented on a “gang board” displayed to
the jury. Underhill was not present for those contacts, and the
officers who were present did not testify at trial. The People
first asked Underhill whether officers from his department
encountered Mendez on May 1, 1994 while investigating the
shotgun killing of a rival gang member John Rojas. Underhill
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told the jury that Mendez was present for the murder and that
detectives questioned him about it. Mendez allegedly admitted
the following to the investigating officers: he “heard two or three
shotgun blasts,” “saw the victim on the ground,” and fled the
scene in a car with the alleged shooter — Art Luna’s brother,
Daniel “Chato” Luna.
Four days later, Underhill continued, a police officer
stopped a car with Mendez inside. Also in the car were Daniel
Luna (Rojas’s alleged killer), Jesse Garcia (who would be gunned
down just weeks later), and a third member of North Side
Colton. Seven days after that, Underhill asserted Mendez was
found by other officers “riding in a stolen [car] after a long
high-speed chase” that ended with the car crashing into a police
vehicle. Two other members of North Side Colton were in the
stolen car with Mendez. The investigating officer filled out a
S.M.A.S.H. card about the incident, on which Mendez
purportedly drew gang graffiti and admitted being a member of
North Side Colton with the gang moniker “Midget.” According
to Underhill, “Daniel Luna was charged with the murder of
Rojas,” but Mendez “was not charged with any crime in any way
relating to the shooting of Rojas.” Underhill further asserted
that law enforcement never made a connection between the
Rojas and Garcia killings.
Underhill next relayed to the jury a fellow officer’s account
of an alleged drive-by shooting that occurred on December 7,
1995. That officer heard multiple gunshots and saw a car in the
“immediate vicinity driving ten miles per hour.” The officer
pulled the car over. A member of North Side Colton was driving,
and Mendez was in the passenger seat. Inside the car, Underhill
continued, the officer found “a fully-loaded .22 caliber handgun
in the center console,” along with a “fully loaded M1 .30 caliber
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carbine, a loaded SKS 7.62 high-powered rifle, a loaded 12-
gauge shotgun and a .38 caliber revolver” in the trunk. The
barrel of the shotgun, according to Underhill’s description of the
officer’s account, “was still warm to the touch.” The officer
patted down Mendez and found a live .22-caliber round in
Mendez’s pants pocket, along with two more such rounds on the
ground nearby.
Finally, Underhill told the jury about another contact
Mendez had with police on a street corner in October 1996.
Mendez, according to Underhill, told the officers on scene that
he was a member of North Side Colton.
2. Analysis of the Gang Expert’s Testimony
Chronicling Mendez’s Prior Police Contacts
On this record, the trial court did not commit reversible
error by letting Underhill tell the jury that other officers had
previously: (1) questioned Mendez after Rojas’s murder and
obtained an admission that he fled the scene in the same car as
the alleged killer, a fellow North Side Colton member;
(2) stopped a car in which Mendez was again riding with Rojas’s
alleged killer; (3) found Mendez with North Side Colton
members in a stolen car that crashed into a police vehicle after
a high-speed chase; (4) stopped Mendez and a fellow North Side
Colton member driving suspiciously near an apparent drive-by
shooting and discovered an arsenal of guns inside the car; and
(5) had a conversation with Mendez during which he admitted
being a member of North Side Colton.
Testimony about these five prior police contacts was
relevant, and the trial court did not abuse its discretion in
declining to find that the probative value of this testimony was
substantially outweighed by the risk of unfair prejudice. (See
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Evid. Code, §§ 350, 352.) By showing Mendez’s “commitment to”
North Side Colton, this testimony was relevant to proving the
charged gang enhancements and, relatedly, to explaining
Mendez’s motive for committing the murders. (People v. Valdez
(2012) 55 Cal. 4th 82, 131.) We recognize that gang-related
evidence “creates a risk the jury will improperly infer the
defendant has a criminal disposition” and that such evidence
should therefore “be carefully scrutinized by trial courts.”
(People v. Carter (2003) 30 Cal. 4th 1166, 1194 (Carter).) But on
this record, Mendez’s prior police contacts had considerable
probative value. Taken together, they tended to show Mendez
actively involved himself in the gang’s criminal activities, rather
than just passively claimed the gang among his peers. What’s
more, the trial court “properly instructed the jury on the limited
purposes for which it was admitting the gang evidence.” (Id. at
p. 1196.) So under our precedents, we cannot say the trial court
abused its discretion. (See, e.g., ibid.; People v. Williams (1997)
16 Cal. 4th 153, 192 [holding that the trial court did not abuse
its discretion in admitting gang evidence, including testimony
that the defendant led a meeting between two gangs where they
planned to kill rival gang members]; People v. Gutierrez (2009)
45 Cal. 4th 789, 819-820 [holding that the trial court did not
abuse its discretion in admitting gang evidence, including notes
to fellow gang members recovered in defendant’s cell that
contemplated the intimidation and murder of prosecution
witnesses].)
Mendez makes, and we reject, another argument about
Underhill’s testimony. Mendez contends that, under our
decision in Sanchez, the trial court erred by letting Underhill
testify about Mendez’s prior police contacts. Like this case,
Sanchez involved testimony from a gang expert. (Sanchez,
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supra, 63 Cal.4th at p. 670.) What we recognized in Sanchez is
that an expert witness may rely on hearsay in explaining the
basis for his or her “general knowledge” about “matters ‘beyond
the common experience of an ordinary juror.’ ” (Id. at p. 676,
quoting People v. McDowell (2012) 54 Cal. 4th 395, 429.) An
expert may also “rely on information within [his or her] personal
knowledge” and “give an opinion based on a hypothetical
including case-specific facts that are properly proven” by other
admissible evidence. (Sanchez, at p. 685.) “What an expert
cannot do,” we held in Sanchez, “is relate as true case-specific
facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by
a hearsay exception.” (Id. at p. 686.) And if, in a criminal case,
a prosecution expert “seeks to relate testimonial hearsay, there
is a confrontation clause violation unless (1) there is a showing
of unavailability and (2) the defendant had a prior opportunity
for cross-examination, or forfeited that right by wrongdoing.”
(Ibid.)
The People concede that much of Underhill’s testimony
about Mendez’s prior police contacts amounted to testimonial
hearsay under Sanchez. But given the specific circumstances of
this case, we conclude Mendez failed to preserve his claim of
Sanchez error as to that portion of Underhill’s testimony.
The relevant facts are as follows. Counsel for Mendez’s
codefendant (Lopez) lodged a hearsay objection to Underhill’s
proposed testimony about Lopez’s prior police contacts. Those
contacts were documented on a gang board similar to the one
used in connection with Underhill’s testimony about Mendez.
This led the trial court to acknowledge that Lopez’s attorney had
“a good point about the hearsay,” and to indicate that it would
allow this aspect of Underhill’s testimony only with “proper
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foundation.” In response, the prosecutor represented to the
court and the defendants that “every one of those officers is
available to be called as a witness” if need be — but suggested
they “allow the gang expert to testify essentially to what’s [on
the gang boards] rather than have a parade of uniforms come in
here one after the other.” In light of that representation, the
trial court informed Lopez’s attorney that whether the
percipient-witness officers would testify was thus “your choice.”
Mendez’s counsel was present throughout this discussion. But
he elected not to make a hearsay or confrontation clause
objection.
At a subsequent hearing, Mendez’s attorney went through
his client’s gang board with the trial court. He reiterated for the
record “a general objection to the board,” but then clarified that
his “objection [wa]s that it’s highly prejudicial” — not that the
information, if admitted only through the expert, would be
inadmissible hearsay. Mendez’s attorney and the trial court
then went through each police contact documented on Mendez’s
gang board one by one. The prosecutor again represented that
the on-scene officers were under subpoena and available to
testify. At no point did Mendez’s attorney make a hearsay or
confrontation clause objection.
After Mendez’s attorney left the courtroom because of
another obligation, Lopez’s attorney informed the trial court he
would stipulate to foundation and allow Underhill to testify
about his client’s prior police contacts. Lopez’s attorney agreed
that having the expert testify about the contents of the board
“would avoid having the [on-scene officer] come forward and
bring in some more juicy details like they always do.” The trial
court described that as a “tactical reason” for not persisting in
making a hearsay objection.
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Later in the proceedings, the trial court noted that it had
“allowed hearsay” and “[n]obody has objected to anything on the
[gang] boards.” Mendez’s attorney was present for that remark
but did not challenge the trial court’s assertion. Nor did he
attempt to lodge a hearsay or confrontation clause objection.
So even though we did not decide Sanchez until well after
Mendez’s trial, the trial court made clear it would sustain a
hearsay objection to Underhill’s testimony about Mendez and
his codefendants’ prior police contacts. And the prosecutor
represented that, if such an objection were made, the officers
with firsthand knowledge of those contacts were available to
take the stand. That matters. Those officers could (at the very
least) have testified as percipient witnesses to their own
observations and relayed to the jury Mendez’s own out-of-court
admissions. (See Evid. Code, § 702 [allowing lay witnesses to
testify only to matters about which they have personal
knowledge]; id., § 1220 [allowing out-of-court admissions by an
opposing party to be admitted for their truth].) But as the trial
court itself noted, insisting on testimony from the on-scene
officers risked intensifying the focus on these encounters and
eliciting more damaging details about them.
Instead, Mendez chose to let Underhill testify to hearsay
accounts of his prior police contacts. In doing so, Mendez agreed
to let Underhill testify not just to facts regarding the
circumstances of those contacts, but also to the fact that
Mendez’s companions during several of those encounters were
fellow North Side Colton members. It’s unclear on this record
what options the People had available to establish the gang
membership of Mendez’s companions. It’s at least possible the
People could have established this fact based on what the
on-scene officers themselves observed or what Mendez himself
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said (or some other admissible evidence), rather than by relying
on what Mendez’s companions may have said out of court
(statements which themselves could potentially have been
admissible under an exception to the hearsay rule and
consistent with the confrontation clause). But ultimately, what
makes the record inscrutable on this issue is that Mendez
assented to having Underhill testify that Mendez’s companions
were North Side Colton members. (See People v. Romero and
Self (2015) 62 Cal. 4th 1, 24 (Romero and Self) [observing that
contemporaneous objections enable trial courts to create a
record for appeal and correct errors in the first instance]; People
v. Trujillo (2015) 60 Cal. 4th 850, 857 [similar].) So we cannot
fault the trial court for permitting Underhill’s testimony about
Mendez’s police contacts under the circumstances that it did.
We reiterate that our analysis of Mendez’s claim of
Sanchez error is grounded in the unique facts of this case: the
trial court expressly indicated that it would sustain a hearsay
objection, and the prosecutor expressly represented that the
on-scene officers were available to testify — yet Mendez chose
to let Underhill testify about Mendez’s prior police contacts. In
another case pending before us, we granted review to decide
whether a defendant’s failure to object at trial before we decided
Sanchez forfeits a claim of Sanchez error subsequently advanced
on appeal. (See People v. Perez, review granted July 18, 2018,
S248730.) We express no view on that question as presented on
the facts of Perez.
3. Analysis of the Gang Expert’s Testimony About
Two Other Gang-related Shootings
Mendez also maintains that Underhill’s testimony about
the killings of Cindy Rodriguez and Jesse Garcia was
inadmissible. We decline to address the merits of those
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arguments, for any error in allowing Underhill to testify about
those killings was harmless under any standard.
Underhill’s testimony describing Cindy Rodriguez’s
murder at the hands of West Side Verdugo members could only
have helped Mendez. Cindy Rodriguez was, after all, the mother
of his codefendant, Joe Rodriguez. So that portion of Underhill’s
testimony suggested Rodriguez, not Mendez, had the more
powerful motive to shoot Faria for having claimed allegiance to
West Side Verdugo. Which is precisely what Mendez urged in
his closing argument at the guilt phase. And even though the
jury found true the allegation that Mendez pulled the trigger in
the Faria killing, Underhill’s testimony about Cindy Rodriguez’s
murder left room for lingering doubt that could only have helped
Mendez’s case at the penalty phase.
We also do not see how Underhill’s testimony describing
the killing of Mendez’s fellow North Side Colton member Jesse
Garcia — and Mendez’s attendance at his funeral — could have
affected the verdicts at either phase of the trial. True: Underhill
opined that Mendez attended Garcia’s funeral with North Side
Colton members, suggesting that Mendez too was a gang
member. But Mendez stipulated that he and his codefendants
“are, and were at all relevant times,” gang members. Also true:
Underhill’s testimony about Garcia’s murder provided an
example explaining the bitter rivalry between North Side Colton
and West Side Verdugo. But even assuming, without deciding,
that the Garcia example was improper, Underhill could still
testify in general terms about the bitter rivalry between those
two gangs based on his “background information and knowledge
in the area” of local gangs. (Sanchez, supra, 63 Cal.4th at
p. 685.) That’s what made him a gang expert in the first place.
(See ibid.)
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Furthermore, Underhill properly offered an expert opinion
about the gang implications of the back-and-forth involving
Faria based on Lizarraga’s testimony; case-specific gang
evidence was first “admitted through an appropriate witness”
(Lizarraga), and then an expert (Underhill) “assume[d] its truth
in a properly worded hypothetical question in the traditional
manner.” (Sanchez, supra, 63 Cal.4th at p. 684; see also People
v. Vang (2011) 52 Cal. 4th 1038, 1048 [observing that gang
experts may, “based on hypothetical questions that track[]” the
evidence, offer an opinion on whether a crime, if committed by
the defendant, was done “for a gang purpose”].) That testimony
about what happened in the moments before Faria’s
murder — not testimony about Garcia’s murder six years
earlier — was what the People urged was critical for the jury to
understand at the guilt phase.
As to the penalty phase, we are confident the jury would
have returned the same verdict against someone it convicted of
twice taking a life even if it hadn’t been told that, years earlier,
he once attended a funeral. In some ways, in fact, Garcia’s
murder at the hands of a rival gang aided Mendez’s attempt to
mitigate his culpability by painting a picture for the jury of his
gang- and violence-infested surroundings. That the trial court
admitted a photograph of Garcia lying in an open casket
(without any visible wounds) does not alter our conclusion.
B. Mendez’s Jailhouse Conversation with Bakotich
Mendez argues that two portions of a jailhouse
conversation he had with a friend — Nicole Bakotich — should
have been excluded. First, Mendez asserts that unlawful police
interrogations tainted a statement he later made to Bakotich
admitting to being near Salazar when she was killed. Second,
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Mendez maintains that letting the jury hear him repeat to
Bakotich incriminating statements made by Rodriguez violated
his Sixth Amendment right to confront witnesses against him.
Neither argument is persuasive. Here too we begin with the
relevant facts and then analyze Mendez’s contentions in turn.
1. Facts
After his arrest, Mendez was questioned by Detective
Christopher Brown on February 24, 2000. Brown advised
Mendez of his Miranda rights, which Mendez agreed to waive.
Questioning proceeded from there. Mendez denied being a gang
member and denied knowing anything about “a shooting over at
the Luna house.” But later on, after Brown accused Mendez of
“not telling . . . the truth on a lot of things,” Mendez said, “I’ll
just have my attorney present sir.” Brown nevertheless
persisted with questioning, telling Mendez, “I know you know
more tha[n] what you read in the paper.” Mendez relented and
admitted hearing that “some guys” had “rolled up” on a boy and
killed him because “they thought that he was somebody else or
something.” They took a short break, then Mendez said that he
couldn’t talk more because he was “not even thinking straight”
and was “tired.” The interrogation ended shortly afterwards.
On April 8, 2000 — about six weeks later — Mendez was
interrogated about the murders again, this time by Sheriff’s
Investigator John Del Valle. The interrogation started just after
8:00 p.m. Del Valle advised Mendez of his Miranda rights, and
Mendez agreed to waive his rights and talk. Del Valle then
explained that his investigation had uncovered witnesses and
physical evidence. He showed Mendez a collection of tapes,
suggesting that they were statements from other witnesses, but
told Mendez that he didn’t “want to put you in a position where
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you wind up getting stabbed.” Del Valle appeared to dangle
those tapes as something that Mendez was “not supposed to
see,” perhaps because of the risk of retaliation. Del Valle also
said he had “talked to everyone” involved other than Mendez.
Del Valle told Mendez the tires on Redmond’s truck belonged to
the Isuzu Rodeo Mendez had been driving when he was
arrested. Furthermore, Del Valle played tapes of multiple
witnesses. He stressed that they had identified Mendez as
having personally pulled the trigger, at least for the Salazar
murder. He also asked Mendez, “What is the most a person can
get for two shootings” — to which Mendez responded, “The death
penalty.”
Mendez repeatedly denied shooting Salazar. But a few
minutes after 11:00 p.m., he admitted to being just feet away
from Salazar when she was killed. Moments before that
admission, however, Mendez said, “If I had an attorney right
here right now I would answer your question.” And two hours
earlier, Mendez had said, “I think I should do this with an
attorney” — but Del Valle had pressed on, responding, “Well,
hold on, hold on, hold on . . . do you wanna listen to [a tape] right
now?” and then playing a tape of another witness. Still, Mendez
agreed that Del Valle had not yelled at, disrespected, or been
mean to him. Del Valle also allowed Mendez to use the restroom
during the interrogation and offered him food.
The next morning, Bakotich visited Mendez in jail. They
talked, and their conversation was recorded. Mendez explained
the gravity of his situation. He told Bakotich, “I got a little bit
of [a] chance if they can prove I didn’t kill [Salazar],” which
might “get it down from the death penalty.” But Mendez was
worried about the tapes the police had shown him. He said,
“They showed me videotapes of [Redmond], then they showed a
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fuckin’ tape of [Rodriguez]” saying “[h]e heard shots” and saw
“me standing over” Faria. Redmond, Mendez went on, “said that
I grabbed [Salazar] and that I put the gun to her head and
snuffed her.” Mendez said, “I got myself into this trouble.”
Mendez next told Bakotich, “I didn’t do the shooting.”
“[W]e all know [Redmond] did ’em,” he continued, so “I told
[Luna] to tell the guys, just [f]uck it, say Sam did it.” Bakotich
asked if the police had “a weapon or anything.” Mendez
responded, “No, but they don’t need it” because they “got guys
saying that I was there and I was the shooter.” Bakotich tried
to reassure Mendez with an anecdote about someone who
escaped conviction because the police never recovered a murder
weapon.
Mendez recounted admitting to Del Valle that he was
standing six feet away from Salazar when she was killed.
Mendez then told Bakotich, “If I could get out of [the Salazar
murder] I can probably get . . . self-defense on [the Faria
shooting] because they fuckin’ started it.” He added that the
Faria murder happened “in front of [Art Luna’s] house” and
confirmed that he was “going to try self-defense” on that charge.
But Mendez reiterated, “I didn’t kill the girl, fuck.”
Later on, Mendez remarked to Bakotich, “If they would
have kept their mouths shut . . . [f]uckin’ everything would have
been cool and shit” but “they are fuckin’ saying that I was the
fuckin’ shooter.” He recapped being shown a tape of Redmond’s
reenactment of the Salazar murder. Mendez explained that Del
Valle had said he had “another one of Joe Rodriguez” and that
Rodriguez reenacted the Faria murder. Mendez then described
for Bakotich the subsequent back-and-forth between him and
Del Valle: “He’s all but there was a confrontation that made you
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Opinion of the Court by Cuéllar, J.
guys, you kill this guy,” and “I’m like I didn’t kill [Faria].”
Finally, Mendez told Bakotich they should “[g]o with the truth,”
which was “[t]hat Sam [Redmond] did it.”
Once the case was underway, Mendez moved to exclude
his statements made during the second interrogation, claiming
that he repeatedly invoked his right to counsel during both
interrogations but was repeatedly ignored in violation the
protections afforded by Miranda v. Arizona (1966) 384 U.S. 436
and Edwards v. Arizona (1981) 451 U.S. 477 (Edwards). The
People were concerned enough about the Miranda/Edwards
issue to agree, “as a tactical consideration,” not to introduce in
its case-in-chief anything Mendez said during either
interrogation. The prosecution did, however, seek to introduce
the recording of Mendez’s conversation with Bakotich. The trial
court admitted the recording over Mendez’s objection.
2. Analysis of Statement Recounting Admission About
Salazar Murder
The trial court did not err in admitting Mendez’s
statement to Bakotich about being six feet away from Salazar
when she was killed. This statement was admissible
notwithstanding the alleged problems with the custodial
interrogations that preceded it.
The due process clause of the Fourteenth Amendment to
the United States Constitution bars the admission of “any
involuntary statement obtained by a law enforcement officer
from a criminal suspect by coercion.” (People v. Neal (2003) 31
Cal. 4th 63, 79 (Neal).) So when the police obtain a suspect’s
statements “by ‘techniques and methods offensive to due
process’ . . . or under circumstances in which the suspect clearly
had no opportunity to exercise ‘a free and unconstrained will,’ ”
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the statements are inadmissible. (Oregon v. Elstad (1985) 470
U.S. 298, 304 (Elstad), citation omitted, quoting Haynes v.
Washington (1963) 373 U.S. 503, 514.)
In Miranda, the U.S. Supreme Court went further. It
adopted prophylactic protections that “required suppression of
many statements that would have been admissible under
traditional due process analysis by presuming that statements
made while in custody and without adequate warnings were
protected by the Fifth Amendment.” (Elstad, supra, 470 U.S. at
p. 304.) Among these protections is a suspect’s right under
Edwards to terminate questioning by “express[ing] his desire to
deal with the police only through counsel” and to be left alone
thereafter until an attorney is present or he reinitiates
questioning on his own accord. (Edwards, supra, 451 U.S. at
p. 484.) Mendez asserts the trial court should have excluded his
statement during the second interrogation that he was just feet
away from Salazar when she was killed because it was
“involuntary” and, at the very least, obtained in violation of the
Edwards prophylactic rule. That being so, Mendez argues that
his statements to Bakotich parroting that admission were fruits
of the poisonous tree.
Mendez’s argument hinges on the allegedly unlawful
nature of his second interrogation –– so that’s where we begin.
We assume, but need not decide, that the police obtained
Mendez’s “six feet away” statement during his second
interrogation by violating the Edwards rule. But we conclude
the statement was nonetheless voluntary. (See People v.
Bradford (1997) 14 Cal. 4th 1005, 1039 [observing that
“continued interrogation after a defendant has invoked his right
to counsel, or an Edwards violation,” does not “inherently
constitute coercion”].)
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Our voluntariness determination rests on an
“independent” consideration of the entire record, including “ ‘the
characteristics of the accused and the details of the
[encounter].’ ” (Neal, supra, 31 Cal.4th at p. 80, quoting People
v. Benson (1990) 52 Cal. 3d 754, 779.) Mendez was 21 years old
at the time of the interrogation and had experience with the
criminal justice system. It was not his first police interrogation.
And although Mendez’s education level was not high, he has not
argued he was intellectually disabled or of low intelligence. As
for the interrogation itself, it started just after 8:00 p.m. and
concluded shortly after 11:00 p.m. During that period, Mendez
was allowed to use the restroom and offered food. He also said
himself that Del Valle had not yelled at, disrespected, or been
mean to him. And contrary to Mendez’s assertions, Del Valle
did not threaten him. Yes, Del Valle suggested there was a risk
that Mendez might be retaliated against in prison — especially
if he saw tapes of statements of others cooperating with police.
But Del Valle did not threaten to exacerbate that risk if Mendez
didn’t talk or suggest that talking was the only way to avoid it.
And yes, Del Valle asked Mendez to consider the possible
punishment he could face — to which Mendez responded, “The
death penalty.” But Del Valle left it at that, and we have already
held that a comparable back-and-forth is not an unlawful threat.
(See People v. Thompson (1990) 50 Cal. 3d 134, 169-170.) So
even assuming there was an Edwards violation here, the totality
of the circumstances does not suggest that Mendez’s “free will
was overborne by state compulsion.” (People v. Storm (2002) 28
Cal. 4th 1007, 1035 (Storm) [holding similarly].)
This analysis fits our decision in Neal. The record in that
case — “from beginning to end” — showed the defendant’s
intelligence “was quite low.” (Neal, supra, 31 Cal.4th at p. 84.)
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His experience with the criminal justice system was also “hardly
extensive.” (Ibid.) What makes Neal even more obviously
distinguishable, though, are the circumstances surrounding the
interrogation in that case. The defendant in Neal was
interrogated once, then “placed in a cell without a toilet or a
sink” without being “taken to a bathroom or given any water
until the next morning.” (Ibid.) Before getting any food, he was
interrogated again, and then a third time. (Ibid.) He was
confined in isolation for 24 hours. (Ibid.) The interrogating
officer also made clear that the defendant was at his mercy, with
little choice but to talk. The officer instructed the defendant to
“make believe that I am driving the bus and you want to get off
the bus” and that the officer could either drop the defendant
“closer to home” or take him “all the way to Timbuktu.” (Id. at
p. 81.) The officer later made the threat explicit, saying, “[I]f
you don’t try and cooperate,” then “the system is going to stick
it to you as hard as they can.” (Ibid.) The Edwards violation in
Neal was also particularly severe. There, the defendant did not
initially waive his Miranda rights and later invoked his right to
counsel nine times. (Neal, at p. 78.) So despite acknowledging
there was no physical coercion in Neal, we said the
interrogation’s “harshness cannot be ignored.” (Id., at p. 84.)
The same cannot be said of the interrogation at issue here.
So we are unpersuaded by Mendez’s claim of error. At
worst, what we have before us is a statement obtained during
interrogation in violation of Edwards but “ ‘unaccompanied by
any actual coercion or other circumstances calculated to
undermine the suspect’s ability to exercise his free will.’ ”
(Storm, supra, 28 Cal.4th at p. 1033, quoting Elstad, supra, 470
U.S. at p. 309.) The admissibility of Mendez’s subsequent
statement to Bakotich thus turns solely on whether that
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Opinion of the Court by Cuéllar, J.
subsequent statement “was itself voluntary and obtained
without a Miranda violation.” (Storm, at p. 1030.)
It was. Mendez does not suggest he should have received
a Miranda warning before talking to Bakotich, and such an
argument would be meritless at any rate. (See People v.
Leonard (2007) 40 Cal. 4th 1370, 1401-1402 [holding that
jailhouse conversations with visitors do not constitute
interrogation and thus do not require Miranda warnings].) Nor
does Mendez assert that he was compelled to talk to
Bakotich — only that his conversation with her “came fast on
the heels” of his interrogation the night before and was thus “the
indirect product or fruit thereof.” But because we have already
concluded that Mendez’s statement during the interrogation
was voluntary, it follows a fortiori that his statement to
Bakotich was too: something “cannot be ‘fruit of the poisonous
tree’ if the tree itself is not poisonous.” (Colorado v. Spring
(1987) 479 U.S. 564, 571-572.) The trial court therefore did not
err in admitting Mendez’s statement to Bakotich about being six
feet away from Salazar when she was killed.
3. Analysis of Statement Recounting Rodriguez’s
Accusations
Nor did the trial court err in admitting Mendez’s
statements to Bakotich about being told by the police that
Rodriguez had accused him of shooting Faria. Mendez argues
that doing so violated his Sixth Amendment right to confront
witnesses against him, as Rodriguez did not testify at trial and
thus was not subject to cross-examination. But because a
reasonable jury could conclude that Mendez adopted
Rodriguez’s statements as his own, there was no confrontation
clause violation here. (See, e.g., People v. Jennings (2010) 50
Cal. 4th 616, 660-661 (Jennings).)
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The confrontation clause of the Sixth Amendment to the
U.S. Constitution provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .” (U.S. Const., 6th Amend.) As the
U.S. Supreme Court recognized in Bruton v. United States
(1968) 391 U.S. 123, and as we recognized in People v. Aranda
(1965) 63 Cal. 2d 518, admitting in a joint trial out-of-court
statements made by a nontestifying codefendant that
incriminate the defendant poses a severe “hazard” to the
defendant’s confrontation rights. (Bruton, at p. 137.) For that
reason, courts “cannot accept limiting instructions as an
adequate substitute for [the] constitutional right of cross-
examination.” (Ibid.)
But we have also held that incriminating statements
made by another become the defendant’s “ ‘own admissions’ ”
when the defendant has “expressly or impliedly adopted” them.
(Jennings, supra, 50 Cal.4th at p. 661, quoting People v.
Cruz (2008) 44 Cal. 4th 636, 672.) The witness against the
defendant in those circumstances is “ ‘the defendant himself, not
the actual declarant,’ ” so there is no confrontation clause
problem. (Jennings, at p. 662, quoting United States v.
Allen (7th Cir. 1993) 10 F.3d 405, 413.) Evidence Code section
1221 sets forth the standard for adoptive admissions: “Evidence
of a statement offered against a party is not made inadmissible
by the hearsay rule if the statement is one of which the party,
with knowledge of the content thereof, has by words or other
conduct manifested his adoption or his belief in its truth.”
For the defendant to have adopted the statement of a
codefendant, two things must be true. (People v. Combs (2004)
34 Cal. 4th 821, 843.) First, the defendant must know the
content of the codefendant’s hearsay statement. (Ibid.) Second,
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Opinion of the Court by Cuéllar, J.
the defendant must suggest in some way that he believes the
codefendant’s statement to be true. (Ibid.) Whether the
defendant actually adopted the statements of the codefendant,
however, is a question for the jury. (People v. Riel (2000) 22
Cal. 4th 1153, 1189-1190.) A court thus decides only whether a
reasonable jury could so conclude on the facts before it. (Id. at
p. 1189; see also People v. Davis (2005) 36 Cal. 4th 510, 535
[observing that the court’s decision turns on “whether there is
evidence sufficient to sustain a finding that” the defendant
adopted the statement].)
People do not admit everything they merely recount to
someone else. (See People v. Hayes (1999) 21 Cal. 4th 1211,
1258.) But here a reasonable jury could have concluded that
Mendez indeed adopted — rather than just recounted —
Rodriguez’s statements naming Mendez as the person who shot
Faria. Consider how Mendez responded to Rodriguez’s
accusation that he shot Faria compared to Redmond’s
accusation that he shot Salazar. Mendez told Bakotich he was
“going to try self-defense” with respect to the Faria shooting
“because they fuckin’ started it,” arguably admitting he pulled
the trigger. Yet in the same breath Mendez categorically denied
shooting Salazar: he declared to Bakotich, “I didn’t kill the girl,
fuck.” A reasonable jury could take that exchange as showing
that Mendez, while denying Redmond’s accusation as to the
Salazar murder, adopted Rodriguez’s accusation as to the Faria
murder.2
2
Mendez does not challenge on confrontation clause
grounds the trial court’s decision to admit his recounting of
Redmond’s accusations to Bakotich. Nor could he, as Redmond
was subject to cross-examination at trial.
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That is enough. To the extent Mendez might have denied
shooting Faria at other points in his conversation with Bakotich,
even “contradictory statements” are admissible under the
adoptive admission rule. (People v. Richardson (2008) 43
Cal. 4th 959, 1020; see also People v. Whitehorn (1963) 60 Cal. 2d
256, 262 [holding that “if a denial is coupled with other conduct
of the accused which is of evidentiary importance, such as where
false and evasive replies are made together with a denial, the
evidence may be received”].) So the trial court did not err by
admitting portions of the Bakotich conversation where Mendez
recounted Rodriguez’s accusation.
Nor can we fault the trial court for giving the standard
instruction on admissions in general (CALJIC No. 2.71) but not
the standard instruction on adoptive admissions in particular
(CALJIC No. 2.71.5). There is no sua sponte duty to give the
latter instruction. (See People v. Carter, supra, 30 Cal.4th at
p. 1198.) And especially when paired with the trial court’s oral
admonition that the Bakotich conversation was “only to be
considered” with respect to Mendez’s “state of mind or to the
extent he adopts these things,” the standard written instruction
given at trial was sufficient for the jury to understand its role.
C. Sufficiency of the Evidence as to the Faria
Murder
Contrary to Mendez’s contentions, there was sufficient
evidence to support a finding that Mendez shot Faria — the
conduct supporting Mendez’s conviction for that murder, as well
as the multiple-murder special circumstance and the firearms
enhancements. When we assess the sufficiency of the evidence,
we must view “the evidence in the light most favorable to the
prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced
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Opinion of the Court by Cuéllar, J.
from the evidence” to see if “a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v.
Zamudio (2008) 43 Cal. 4th 327, 357 (Zamudio).)
A reasonable jury could find that Mendez adopted by
implication Rodriguez’s accusation that he shot Faria, and for
present purposes we must presume the jury so found. From
there, we have little trouble concluding there was sufficient
evidence to support a finding that Mendez shot Faria. Mendez’s
adopted admission, though powerful in its own right, was not
the only evidence from which a reasonable jury could infer that
he shot Faria. Redmond testified he saw Mendez running with
a gun in his hand mere moments after Faria was shot. Redmond
further testified that Mendez instructed Rodriguez to grab
Salazar and that Mendez later said, “She’s gotta die” —
suggesting he was determined to cover up evidence of the Faria
murder to save his own skin. Nothing more is required. In this
posture, we may “ ‘resolve neither credibility issues nor
evidentiary conflicts.’ ” (Zamudio, supra, 43 Cal.4th at p. 357,
quoting People v. Maury (2003) 30 Cal. 4th 342, 403.) So it
makes no difference that Redmond arguably had credibility
problems or that Lizarraga originally identified Rodriguez as
the person who shot Faria.
D. Cross-examination of Redmond
Mendez also maintains the trial court should have
permitted Redmond to be cross-examined about: (1) whether he
told the prosecution that its exhibit listing him as a gang
member was inaccurate, and (2) whether his final meeting with
law enforcement before pleading guilty was “sheer coincidence.”
But because the trial court had “wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits”
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Opinion of the Court by Cuéllar, J.
on questioning, and because Mendez has not shown that either
prohibited question would have left the jury with “a significantly
different impression of [Redmond]’s credibility,” the trial court
did not abuse its discretion in limiting the cross-examination of
Redmond. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-
680 (Van Arsdall); see also People v. Pearson (2013) 56 Cal. 4th
393, 455-456 (Pearson) [reviewing for abuse of discretion];
People v. Chatman (2006) 38 Cal. 4th 344, 372-374 [same].)
1. Questioning Redmond About His Reaction to the
People’s Gang Exhibit
The trial court did not abuse its discretion in prohibiting
questioning about whether Redmond told the prosecution that
its exhibit was mistaken to list him as a gang member. Such
questioning would have injected an issue that risked taking up
considerable time and confusing the jury — and which possessed
little probative value.
During their opening statement, the People told the jury
that it would “hear the testimony of Sam Redmond,” a man
“with the moniker or gang name of Devil.” Fitting with that
description, a prosecution exhibit listed Redmond as a gang
member. That exhibit was displayed behind Redmond during
his testimony. Redmond denied being a gang member at trial.
During cross-examination, an attorney for Mendez’s
codefendant, Rodriguez, asked Redmond when he first saw the
People’s exhibit listing him as a gang member. Redmond said
he first saw it on the “first day” of his trial testimony.
Rodriguez’s attorney then asked Redmond, “Did you tell the
district attorney the information under your name was
incorrect?” The People objected, and the trial court sustained
the objection under Evidence Code section 352.
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Outside the presence of the jury, the trial court discussed
the matter further with the parties. It said to Rodriguez’s
attorney, “I’m sure you were going to ask him as to when you
saw the information on that diagram why didn’t you bring it to
the attention of the district attorney,” then asked for
confirmation if that was true. Rodriguez’s counsel responded,
“I’m not going to ask him why, I’m going to ask him if he did.”
At that point, the trial court explained why it didn’t allow the
question, saying that “under Evidence Code [s]ection 352 if he
did or if he didn’t, I think it’s so equivocal and has little
probative value.” “Whether [Redmond] told the district
attorney” that the exhibit was incorrect, the trial court
continued, “add[ed] little” to other available avenues of
impeaching Redmond’s denial of being a gang member.
Furthermore, the trial court said that it wanted to avoid a “long
philosophical discussion” as to what would be expected of
Redmond under the circumstances.
Even if we assume that Mendez preserved this claim of
error and that he may object to limitations on cross-examination
conducted by someone other than his own attorney, the trial
court did not abuse its discretion. Evidence Code section 352
grants a trial court discretion to “exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” We have
recognized, moreover, that excluding “ ‘evidence of marginal
impeachment value’ ” under Evidence Code section 352
“ ‘generally does not contravene a defendant’s constitutional
right[] to confrontation.’ ” (Pearson, supra, 56 Cal.4th at p. 455,
quoting People v. Brown (2003) 31 Cal. 4th 518, 545.)
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This case is no exception. Getting into whether Redmond
impliedly adopted the exhibit’s representation that he was a
gang member would have risked wasting time and creating
confusion — all without much benefit. Such questioning would
have raised the vexing question whether Redmond manifested
a belief in the truth of the exhibit by not immediately pointing
out its inaccuracies while on the stand. (See Evid. Code, § 1221.)
That, in turn, would have required time-consuming litigation
about the precise circumstances under which Redmond first saw
the exhibit, whether those circumstances afforded him a way of
communicating with the prosecution, whether doing so would
have been practical under the circumstances, and so on.
And for what? Not much. As the trial court noted, there
were more effective, less problematic ways to impeach
Redmond’s denial of being a gang member. For example,
Redmond asserted on cross-examination that he could “step in
and out of [the gang] lifestyle” and freely associate with
numerous gang members while “stay[ing] above involvement in
the gangs” — even though he admitted living with North Side
Colton members, frequently driving North Side Colton members
around, storing guns in a safe only he and an admitted North
Side Colton member (Mendez) could unlock, and being arrested
with North Side Colton members while in possession of a gun.
Redmond also claimed that he adopted the gang moniker “Devil”
six months after his late March 2000 arrest in this case, but that
he got a tattoo of a devil embracing a young girl before the
Salazar killing. He stood by that story despite documentation
from an earlier unrelated arrest on February 20, 2000 that cast
doubt on it. That documentation indicated that Redmond’s gang
moniker was “Devil” and that he had a clown tattoo on one leg
— but did not mention a devil tattoo on his other leg. Then, of
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course, there is the reality that the People’s own exhibit listed
Redmond as a gang member.
So even assuming Redmond had a reasonable opportunity
to inform the prosecution that its exhibit was wrong at the start
of his testimony, it’s highly unlikely this would have made any
difference. The mere fact he did not do so before expressly
denying gang membership throughout his testimony would have
had little impeachment value beyond that available through
other lines of questioning. Accordingly, the question was
permissibly barred under Evidence Code section 352 — and
prohibiting it did not produce “a significantly different
impression of [Redmond]’s credibility” in violation of the
Confrontation Clause. (Van Arsdall, supra, 475 U.S. at p. 680;
see also Pearson, supra, 56 Cal.4th at pp. 455-456.)
2. Questioning Redmond About His Final Meeting
with Law Enforcement Before Cooperating
The trial court did not violate the confrontation clause by
preventing Mendez’s attorney from asking Redmond whether it
was “sheer coincidence” that he met with law enforcement just
before signing his plea agreement.
To escape the death penalty, Redmond pleaded guilty on
August 29, 2003, pursuant to a cooperation agreement with the
People. That agreement provided in all caps that Redmond’s
“MOST IMPORTANT OBLIGATION IS TO TELL THE TRUTH
AND TELL ONLY THE TRUTH.” A week or two before signing
the agreement, Redmond took a polygraph test during which he
denied shooting anyone. Redmond passed the polygraph test,
and the People cut him a deal.
Evidence Code section 351.1 provides in relevant part:
“Notwithstanding any other provision of law, the results of a
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polygraph examination, the opinion of a polygraph examiner, or
any reference to an offer to take, failure to take, or taking of a
polygraph examination, shall not be admitted into evidence in
any criminal proceeding . . . .” During proceedings outside the
presence of the jury, the People acknowledged that, under this
provision, it “obviously [could not] refer to [Redmond] offering to
take a poly[graph] or [make] any mention at all of a
poly[graph].” To ensure defense counsel could still cross-
examine Redmond about his final meeting with law enforcement
before signing his plea agreement, the People suggested the
parties refer to that final pre-plea meeting as simply “the DOJ
[Department of Justice] interview.” The People also
admonished Redmond not to mention his polygraph
examination. Mendez’s attorney agreed with those measures.
At trial, Mendez’s attorney cross-examined Redmond
about whether his plea agreement was conditioned on his not
being the shooter, or merely his telling the truth at trial.
Redmond first agreed that his plea agreement required that he
was “not a shooter” but moments later agreed that his plea
agreement required that he merely “tell the truth.” And just
after that, Redmond agreed that he would get his deal, so long
as he was “not a killer.” Then, after consulting with his
attorney, Redmond said that he “had to tell the truth in order to
get all the benefits” of cooperating.
The next day, Mendez’s attorney picked up the same line
of questioning during a second round of cross-examination. The
attorney elicited that the prosecution talked to Redmond after
his earlier testimony and told him that the deal was contingent
only on his telling the truth. Redmond confirmed that he
understood his plea agreement to require only that he tell the
truth at trial. Mendez’s attorney responded by confronting
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Redmond with the portions of his earlier testimony where
Redmond agreed that his deal hinged “on the fact the [he was]
not a shooter or a killer.” Redmond claimed he had been
confused.
Questioning turned to the meetings Redmond had with
law enforcement before signing his plea agreement. Redmond
confirmed that, during the first meeting on February 20, 2000,
he “lied about having any knowledge about the killings of Mr.
Faria and Ms. Salazar.” Redmond then confirmed that, at the
second meeting about a month later, he initially lied again but
ultimately came clean. At that point, Redmond continued, he
was charged with murder.
Mendez’s attorney also elicited that, three years later,
Redmond had a fourth meeting with law enforcement: the DOJ
interview. Redmond confirmed that he signed his plea
agreement “about a week or two” after the DOJ interview.
Mendez’s attorney asked Redmond if it “was just a sheer
coincidence that [he] had another interview a week and a half
before [he] signed [his] plea agreement?” The People objected,
and the trial court called for a sidebar.
Outside the presence of the jury, the trial court remarked
that if Mendez was “going to suggest” that the DOJ interview
was “a coincidence,” then the prosecution “could bring out” the
reason for that meeting: that Redmond’s deal “was conditioned
upon him passing a polygraph.” Mendez’s attorney responded,
“I will abandon those questions if that’s how the Court feels.”
After further discussion, the trial court suggested a line of
questioning to which Mendez’s attorney agreed. Specifically,
after the jury returned, Mendez’s attorney asked Redmond
whether he was “given a deal based on [his] version of the events
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that [he was] not a shooter and [he was] not a killer.” Redmond
answered, “Yes.” Mendez’s counsel next asked if the People had
“accepted [that] version of things as being the truth” such that,
if Redmond testified at trial, “I’m the shooter,” the People would
have “problems with that.” Redmond agreed with that
description of his situation.
On appeal, Mendez argues that the trial court’s
“polygraph threat” curtailed his ability to cross-examine
Redmond in violation of his confrontation rights. No such
violation occurred.
Mendez represents on appeal that the disputed line of
questioning was meant to establish that “Redmond told
authorities during ‘the DOJ interview’ exactly what they wanted
to hear” and that under his plea agreement Redmond “was not
free to testify [at trial] that he had murdered Salazar even if”
that was true. Mendez got what he sought. The alternative line
of questioning allowed by the trial court established as much:
Redmond confirmed that he was “given a deal based on [his]
version of the events that [he was] not a shooter” and that the
People had “accepted [that] version of things as being the truth.”
Redmond further confirmed that, if he changed his story and
admitting to being a shooter at trial, the People would have
“problems with that.” Redmond was boxed in, and the jury knew
it. So this prohibited cross-examination would not have
produced “a significantly different impression of [Redmond]’s
credibility” in violation of the confrontation clause. (Van
Arsdall, supra, 475 U.S. at p. 680; see also Pearson, supra, 56
Cal.4th at pp. 455-456.)
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E. Photograph Depicting Faria’s Body
Mendez challenges the trial court’s decision to admit a
photograph depicting Faria’s body just before an autopsy was
conducted. Such a photograph may be admitted if: (1) the
photograph is relevant, and (2) its probative valued is not
substantially outweighed by the risk of unfair prejudice. (See
People v. Ramirez (2006) 39 Cal. 4th 398, 453 (Ramirez); see also
Evid. Code, §§ 350, 352.) We review the trial court’s
determination of each issue for abuse of discretion. (People v.
Scheid (1997) 16 Cal. 4th 1, 14, 18; accord People v. Mills (2010)
48 Cal. 4th 158, 191.) We see no abuse in this case.
Outside the presence of the jury, the trial court discussed
with the parties whether to admit two photographs of Faria’s
body — what became People’s exhibits 42 and 45. Mendez and
his codefendants originally objected to both photographs but,
after the People agreed to crop exhibit 45 to allay the
codefendants’ concerns about that photograph, persisted only in
objecting to exhibit 42. The trial court overruled that objection,
reasoning that exhibit 42 “would be helpful to the pathologist”
who performed the autopsy in explaining to the jury “what he
was provided with,” “how he examined the body,” and the fact
“that he found other injuries [on Faria’s body] as well, but they
were not all involved with the bullets that killed [him].” The
trial court also noted that the photograph was not “all that
prejudicial” compared to photographs it had seen in other cases.
In short, the trial court concluded that exhibit 42 was relevant
and that its probative value was not substantially outweighed
by the risk of unfair prejudice.
On appeal, Mendez argues the trial court was wrong on
both fronts and thus should have excluded exhibit 42. We
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disagree. First, as to relevance, photographs like this one are
relevant if they help clarify testimony from a medical examiner.
(Ramirez, supra, 39 Cal.4th at p. 454; see also People v.
Thomas (1992) 2 Cal. 4th 489, 524 [collecting cases].) That is
what the trial court concluded here, and we see no error in that
determination. Second, as to whether exhibit 42’s probative
value was substantially outweighed by the risk of unfair
prejudice, even “gruesome” and “disturbing” photographs may
be admitted if they do not “sensationalize an alleged crime” and
are not “unnecessarily gruesome.” (Ramirez, at p. 454, italics
added.) Plus, if the record demonstrates the trial court was
“aware of [its] duty to weigh the prejudicial effect of the
photographs against their probative value” and performed that
duty “carefully,” that too weighs against finding an abuse of
discretion. (Ibid.)
We have examined exhibit 42 and conclude that it neither
sensationalizes Faria’s killing nor contains unnecessary gore.
The photograph depicts Faria’s body lying on a table with his
abdomen cut open, but — as the jury was told — that was the
result of surgery performed to save Faria’s life, not shots fired
to end it. We have seen, and approved the admission of, far
worse. (See, e.g., Ramirez, supra, 39 Cal.4th at pp. 409, 454.
[affirming admission of photograph depicting a murder victim
with her eyes cut out not by medical personnel, but by the
murderer].) Furthermore, the record demonstrates that the
trial court carefully exercised its duty to weigh the probative
value of potentially inflammatory photographs against the risk
of unfair prejudice. The trial court heard the parties’ arguments
on that issue at some length, explained its ruling on the record,
and — with respect to exhibit 45 — guided the parties towards
a compromise to minimize the risk of unfair prejudice.
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Accordingly, the trial court did not abuse its discretion in
admitting exhibit 42.
F. References to “Guilt/Innocence” Dichotomy
Mendez asserts the trial court prejudicially erred by giving
the jury two instructions using the word “innocent” rather than
“not guilty.” These instructions and several similarly phrased
comments made by the trial court during voir dire, Mendez
argues, created a “guilt/innocence” dichotomy impermissibly
diluting the reasonable doubt standard. Yet Mendez concedes
we have consistently rejected arguments just like the one he
advances here. (See, e.g., People v. Nelson (2016) 1 Cal.5th 513,
554; People v. Brasure (2008) 42 Cal. 4th 1037, 1059 (Brasure);
People v. Crew (2003) 31 Cal. 4th 822, 847-848.) He offers us no
persuasive reason to depart from those decisions, and we decline
to reconsider them.
G. Victim Impact Evidence
Contrary to Mendez’s contentions, the victim impact
evidence admitted in this case was within the bounds of what
our precedents permit.
1. Facts
The People called six witnesses to offer victim impact
testimony at the penalty phase of Mendez’s trial, three for Faria
and three for Salazar.
Faria’s father testified first. He told the jury that Faria
“cared about other people, cared about his mom, cared about his
sisters and brother, cared about me.” Faria’s father also said it
was a “shock” to hear that his son had claimed allegiance to a
gang, explaining that Faria “never gave us any clue or any kind
of thought that he was going to be a gang member.” Faria’s
father also described his experience on the night of his son’s
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killing. He told the jury how Faria said, “I love you” on his way
out the door, which was “the one time” Faria’s father could
remember his son doing that — and also “the last time.” Upon
hearing his son had been shot, Faria’s father rushed to the
hospital. Despite initially hoping “the bullet in [Faria’s] brain
would be able to be removed,” the hospital staff eventually
concluded that it was “too swelled up” and that Faria was “not
going to make it.” Faria’s dad then chronicled the toll his son’s
death had on their family: he and his wife divorced but they and
their children were “surviving.” The emotional impact was
especially severe, Faria’s father continued, because his son died
a “tragic, sickening, evil, disgusting death.”
Faria’s sister testified next. She was 13 years old when
she took the stand. She described to the jury how Faria would
“protect [her] from boys” at school and, on one occasion, saved
her life by pulling her from a burning car. She also detailed her
experience on the night Faria was shot. After rushing to the
hospital with family members, she saw her brother “lying on [a]
bed all bloody.” When he passed away, she was “[s]cared, crying,
hurt.” At the close of her testimony, the People asked Faria’s
sister to describe childhood photographs of her, Faria, and their
other sister. These and other childhood photographs of the
victims were shown to the jury throughout the penalty phase.
The People’s final witness who testified about the toll of
Faria’s death was his mother. She described her son as “very
energetic,” “very playful,” and “very cheerful.” When asked
where she was when she heard about the shooting, Faria’s
mother told the jury, “I was sleeping and I was having a
nightmare . . . that I had got shot, and I s[aw] the bullet go
through my face, and that startled me to wake up.” At that
moment, she continued, two detectives knocked on the door and
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told her Faria had been shot. The detectives searched Faria’s
room for evidence of gang involvement, a possibility that
“shocked” Faria’s mother. She then went to the hospital, where
she saw her son — who had just had emergency surgery — and
observed that “[a]ll his insides were out” and that “blood was
dripping from the bed.” At the hospital, she told her remaining
children that their brother was going to die. His death took its
toll on the family. Faria’s mother explained that she and Faria’s
father divorced. Their daughter began claiming allegiance to
West Side Verdugo, feeling “that if her brother died for
something . . . she’s going to be claiming that too.” And Faria’s
mother herself fell into a five-month period of drug abuse.
The proceedings turned to Salazar. The first two
witnesses to testify about the impact of Salazar’s death were her
cousins. One described Salazar as someone who “liked to make
everybody laugh” and detailed the pain she felt upon hearing
from a newspaper article that Salazar had been “executed” with
a shot to the head. Salazar’s other cousin similarly described
her as someone who “always put a smile on everybody’s face”
and who “had the intelligence to do anything that she wanted to
do,” like become “a doctor” or “a lawyer.” He also testified that
Salazar’s death created “a hole in the heart of everybody that’s
loved her” that “[n]othing could ever fill.”
Salazar’s mother was the final witness to testify at the
penalty phase. She broke down shortly after taking the stand,
spurring the trial court to call a brief recess. When trial
resumed, the People asked Salazar’s mother to read a poem
Salazar had written as a fifth grader. That poem, entitled
“Jessica’s Cry,” read as follows:
Most of us don’t want to die, but, anyway, in our
coffin there we lie.
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You could have been stabbed, or shot, or took an
overdose of pot.
No one cares anymore; people are getting shot to
the floor.
There are screams everywhere; people are running
here and there.
There is someone on the ground; when they are
found, everyone’s crying.
The truth is everyone is dying.
We pray to God every night, but the next day begin
to fight.
Everyone is killing each other, not knowing all the
pain and hurt they’re going to make or all the souls
they are going to take.
I don’t know about you, but I’ve had enough.
They’re taking innocent lives.
It could be your brothers, your sisters, your wives,
or maybe even you.
Once she finished reading the poem, Salazar’s mother narrated
the occasions on which “about eight” childhood photos of Salazar
were taken. As she did so, she elaborated on how the murder
had left her son’s life “in shambles.” Salazar’s mother said her
son was “not the same boy as before.” He became “very angry”
and even contemplated suicide, causing him to be
institutionalized multiple times. After discussing the remaining
childhood photographs of her deceased daughter, Salazar’s
mother told the jury that her “world stopped” the day her
daughter was killed and that the way in which she died made
the pain even more intense. The prosecution then showed
portions of a home video depicting Salazar’s sixth grade
graduation — followed by a photo of Salazar’s gravestone.
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2. Analysis
Although the victim impact evidence admitted at the
penalty phase of Mendez’s trial was powerful, we cannot say it
was improper under our precedents. Witnesses, we have said,
“are permitted to share with jurors the harm that a capital crime
caused in their lives.” (People v. Perez (2018) 4 Cal.5th 421, 461-
462.) That is because “the effects of a capital crime are
relevant . . . as a circumstance of the crime.” (Id. at p. 462; see
also § 190.3, subd. (a).) And so long as victim impact evidence
does not invite the jury to respond in a purely irrational way, it
is admissible. (Perez, at p. 462.)
As an initial matter, the trial court did not, as Mendez
contends, permit a “flood” of victim impact evidence. To the
contrary, permitting victim impact testimony from six witnesses
regarding two victims — that is, three per victim — is
comparable to what we have permitted in other cases. (See, e.g.,
People v. Mora and Rangel (2018) 5 Cal.5th 442, 511, citing
People v. Brady (2010) 50 Cal. 4th 547, 573 (Brady) [allowing
victim impact testimony from three witnesses for one victim and
observing that this court has in the past permitted testimony
from nine such witnesses for one victim]; People v. Simon (2016)
1 Cal.5th 98, 140 [collecting cases].) Admitting some 13 photos
of Salazar and fewer of Faria likewise was not excessive under
our cases.3 (See, e.g., Romero and Self, supra, 62 Cal.4th at p. 46
3
We acknowledge that the photographs admitted here
depicted Faria and Salazar as children. The admission of
childhood photographs may be improper in some cases,
particularly where they depict the victim at a substantially
younger age than at the time of death. But in this case, there
was no error. Faria and Salazar “were, after all, still young
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[allowing admission of twelve photos of one victim]; People v.
Bramit (2009) 46 Cal. 4th 1221, 1240-1241 [allowing admission
of video montage depicting approximately 20 photographs of one
victim].)
What this victim impact evidence showed was also in line
with what we have allowed in the past: the witnesses testified
“about their relationship with” the victims, “how
they learned about” the victims’ deaths, and how the murders
“affected their lives.” (People v. Spencer (2018) 5 Cal.5th 642,
677.) The details of that testimony were not materially more
emotionally inflammatory than that approved by our
precedents. Yes, Faria’s family members described rushing to
the hospital and seeing him lying there, bleeding and dying. But
in Brady we permitted fellow police officers to “testif[y]
extensively about how they learned of the shooting, their initial
reactions to learning that the downed officer was their friend,”
and “the efforts to save his life both at the scene and at the
hospital.” (Brady, supra, 50 Cal.4th at p. 574.) And yes, Faria’s
father testified that his son said, “I love you” before leaving the
night he was killed and Faria’s mother described having a
nightmare about being shot just before learning her son had
suffered that same fate — testimony which Mendez challenges
as “supernaturally tinged.” But we saw no error in the victim
impact testimony presented in People v. Verdugo (2010) 50
Cal. 4th 263 (Verdugo), even though there the victim’s mother
described how her daughter had said, “I love you” before leaving
when [Mendez] killed them.” (People v. Booker (2011) 51 Cal. 4th
141, 191 (Booker).) Furthermore, we have repeatedly upheld the
admission of gravesite photographs, and we do so again here.
(See Brady, supra, 50 Cal.4th at p. 580 [collecting cases].)
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the night she was killed, and even though another witness
described how, after a murder, the victim’s young goddaughter
reported seeing the victim’s ghost. (Id. at pp. 297-299.)
Further aspects of the victim impact testimony in this case
mirror those we have permitted in other cases. We have allowed
victim impact testimony detailing severe effects on family
members, including a grieving mother’s suicide attempts and
hospitalizations. (Booker, supra, 51 Cal.4th at p. 193.) So the
testimony in this case suggesting that the murders contributed
to suicide attempts and hospitalizations — not to mention
divorce, drug addiction, and gang activity — among the victims’
family members “was relevant victim impact evidence,” too.
(Ibid.) We have also permitted victim impact witnesses to
describe how they “imagined” their loved ones’ final moments,
reasoning that it is “obvious” to a jury “that family members of
murder victims might imagine the victims’ horror.” (People v.
Cowan (2010) 50 Cal. 4th 401, 485; see also People v.
Pollock (2004) 32 Cal. 4th 1153, 1182 [approving victim impact
testimony about frequently “imagining the suffering of [the
victims’] final minutes”].) It is equally obvious that a parent
would describe the murder of a child as a “tragic, sickening, evil,
disgusting death,” as Faria’s father did. And, relatedly, we have
said it is “a normal human response to the loss of a child” for
such a parent to break down on the stand, as Salazar’s mother
did. (Verdugo, supra, 50 Cal.4th at p. 298.)
Mendez further argues the trial court prejudicially erred
by admitting portions of the home video depicting Salazar’s
sixth grade graduation and allowing her mother to read the
poem she wrote in fifth grade. We disagree. In People v.
Dykes (2009) 46 Cal. 4th 731, we upheld a trial court’s decision
to admit the entirety of an “eight-minute videotape” depicting
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the victim — who was murdered at age nine — “and family
members preparing for and enjoying a trip to Disneyland.” (Id.
at pp. 783-785.) And in Brady we allowed “a four-minute, edited
videotape depicting” a slain police officer “celebrating
Christmas, two days before his murder, with his family.”
(Brady, supra, 50 Cal.4th at p. 579.) If those videos were okay,
so was this one.
As for the poem, we have on at least two occasions allowed
an immediate family member to read a poem penned by the
victim. (See People v. Parker (2017) 2 Cal.5th 1184, 1227; People
v. Suff (2014) 58 Cal. 4th 1013, 1076.) To be sure, that Salazar’s
poem bemoaned gang violence may have injected a cruel irony
into the proceedings. But we fail to see how, under our
precedents, that irony invited an irrational response from the
jury. For one, we have upheld a trial court’s decision to admit a
cassette containing songs all about “losing someone, leaving
someone, [and] having to say goodbye” that a murder victim
coincidentally gave her father shortly before her death.
(Verdugo, supra, 50 Cal.4th at pp. 297-299.) For another,
although we did not describe the content of the poem at issue in
Parker, we noted that the poem at issue in Suff was about the
victim “stumbling and going through hell, but rejecting Satan”
— and we held that this “contributed to the picture of the victim
who was taken from the family.” (Suff, at p. 1076.) So too here.
The poem at issue in this case showed that, young as she was,
Salazar was aware of, and reflected on, the dangerous world in
which she lived.
For all these reasons, and because we decline to revisit our
prior cases, we hold that the trial court did not err in admitting
victim impact evidence at the penalty phase of Mendez’s trial.
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H. Failure to Reinstruct at the Penalty Phase
At the start of the penalty phase, the trial court instructed
the jury to “[d]isregard all other instructions given to you in
other phases of this trial” but failed to reinstruct the jury on
several general principles of law relevant to the penalty phase.
Although we have held that similar oversights may constitute
error, we have consistently deemed such error harmless under
any standard. (See, e.g., People v. Boyce (2014) 59 Cal. 4th 672,
714-717 (Boyce); People v. Virgil (2011) 51 Cal. 4th 1210, 1276-
1277; People v. Ervine (2009) 47 Cal. 4th 745, 803-804; People v.
Moon (2005) 37 Cal. 4th 1, 35-39; Carter, supra, 30 Cal.4th at pp.
1218-1222.) Here too any error was harmless.
Mendez asserts prejudice resulted from the trial court’s
failure at the penalty phase to repeat the model instruction
making clear that statements by attorneys are not evidence.
(See CALJIC No. 1.02.) Specifically, he argues we must
presume that without reinstruction the jury disregarded the
guilt phase instruction to that effect. By failing to reinstruct,
Mendez contends, the trial court essentially told the jury it could
now consider the prosecutor’s argument as evidence at the
penalty phase.
We disagree. The trial court drew a clear line between
evidence and argument at the penalty phase. It instructed the
jury to make its penalty determination “[a]fter having heard all
of the evidence, and after having heard and considered the
arguments of counsel.” (Italics added.) The upshot was obvious:
evidence and argument are two different things. Any
reasonable jury would have understood as much. Crediting
Mendez’s contrary argument would require us to “assume that
jurors acted contrary to common sense simply on the basis of a
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general direction to disregard the guilt phase instructions.”
(Brasure, supra, 42 Cal.4th at p. 1073.) That is an assumption
we have declined to indulge in prior cases, and an assumption
we decline to indulge in this one. (See, e.g., ibid.; Boyce, supra,
59 Cal.4th at p. 716.)
I. Failure to Orally Impose Judgment on
Enhancements
Mendez asserts that, because the trial court neglected to
orally impose judgment on several enhancements, they must be
stricken. We disagree.
At trial, the jury found the following enhancements to be
true:
• Mendez personally discharged a firearm causing
the deaths of both Faria and Salazar within the
meaning of section 12022.53, subdivision (d). Those
enhancements, as they then existed, were
mandatory. (See § 12022.53, former subd. (h),
amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1,
2018 [“Notwithstanding Section 1385 or any other
provision of law, the court shall not strike an
allegation under this section or a finding bringing a
person within the provisions of this section.”].)
• Mendez personally discharged a firearm causing
the deaths of both Faria and Salazar for the benefit
of, at the direction of, or in association with a
criminal street gang, within the meaning of
sections 12022.53, subdivision (e), and 186.22,
subdivision (b)(1). Those enhancements were also
mandatory. (See § 12022.53, former subd. (h).)
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• Mendez committed both murders for the benefit of,
at the direction of, or in association with a criminal
street gang, within the meaning of section 186.22,
subdivision (b)(1). Those enhancements could only
be stricken “in an unusual case where the interests
of justice would be best served, if the court specifies
on the record and enters into the minutes the
circumstances indicating that the interests of
justice would be best served by that disposition.”
(§ 186.22, former subd. (d).)
At sentencing, the trial court said on the record, “It is the
judgment and sentence of this Court that for the offense of
murder as charged” as to both the Faria and Salazar killings
“that [Mendez] shall suffer the death penalty.” The trial court
did not orally impose sentence on the above enhancements.
Instead, off the record, the trial court imposed two
consecutive 25-years-to-life sentences for the section 12022.53,
subdivision (d) enhancements to run concurrently with two
consecutive 25-years-to-life sentences on the section 12022.53,
subdivision (e) enhancements, as well as two consecutive three-
year sentences for the section 186.22, subdivision (b)(1)
enhancements to run consecutively with the sentences on the
other two sets of enhancements. All told, then, the trial court
belatedly imposed a 56-year-to-life sentence on the foregoing
three sets of enhancements that was not part of the judgment it
pronounced orally.
Nevertheless, we decline Mendez’s request to strike those
three sets of enhancements. The first two sets of enhancements
were mandatory. So the oral sentence failing to impose them
was “unauthorized” and thus “subject to judicial correction
50
PEOPLE v. MENDEZ
Opinion of the Court by Cuéllar, J.
whenever the error c[ame] to the attention” of a court. (People
v. Dotson (1997) 16 Cal. 4th 547, 554, fn. 6 [holding on appeal
that sentence enhancements must be imposed even though the
People had not asked the trial court to impose them below].)
Similarly, as we have explained, the trial court could not decline
to impose the third set of enhancements unless it found that
justice required leniency and explained its reasoning on the
record. But the trial court made no such finding and gave no
such explanation; to the contrary, by later endeavoring to
impose this third set of enhancements, the trial court indicated
it saw no reason for leniency. So here too the sentence
pronounced orally was unauthorized and subject to judicial
correction at any time. (See ibid.)
That conclusion accords with People v. Mesa (1975) 14
Cal. 3d 466 and In re Candelario (1970) 3 Cal. 3d 702. In both of
those cases, we presumed that the trial court’s silence about a
prior conviction enhancement in its orally pronounced sentence
indicated “ ‘that the omission was an act of leniency by the trial
court.’ ” (Mesa, at p. 471, quoting Candelario, at p. 706.) But
again, unlike in Mesa and Candelario, the trial court in this case
had no ability to perform by silence any acts of leniency with
respect to the enhancements. So here, unlike in those cases, the
trial court’s oversight resulted in an unauthorized sentence
subject to subsequent judicial correction.
J. Constitutional Challenges to California’s Death
Penalty Scheme
Mendez mounts several constitutional challenges to
California’s death penalty scheme. We have rejected each of
them in prior cases, and Mendez has given us no persuasive
reason to reconsider those decisions in this case. (See, e.g.,
People v. Williams (2013) 58 Cal. 4th 197, 294-296 [holding that
51
PEOPLE v. MENDEZ
Opinion of the Court by Cuéllar, J.
(i) the special circumstances listed in section 190.2 are not so
broad as to violate the Eighth Amendment; (ii) application of
section 190, subdivision (a) is constitutional; (iii) the jury need
not make written findings of aggravating and mitigating factors,
agree unanimously that a particular aggravating circumstance
exists, find all aggravating factors proved beyond a reasonable
doubt, find beyond a reasonable doubt that the aggravating
factors outweigh the mitigating factors, or conclude beyond a
reasonable doubt that death is the appropriate penalty; (iv) the
Constitution does not require inter-case proportionality review;
and (v) California’s death penalty law does not deny capital
defendants equal protection or violate the Constitution by
operation of international law or by an accumulation of
deficiencies]; People v. Duff (2014) 58 Cal. 4th 527, 570 [holding
that (i) the use of the adjectives “extreme” and “substantial” in
section 190.3, subdivisions (d) and (g) is constitutional; (ii) the
trial court need not identify mitigating factors as such; and (iii)
reliance on unadjudicated criminal activity at the penalty phase
is constitutional].)
III. CONCLUSION
For the foregoing reasons, we affirm.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
52
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Mendez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S129501
Date Filed: July 1, 2019
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Edward D. Webster
__________________________________________________________________________________
Counsel:
Randall Bookout, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Julie L. Garland and Ronald S. Matthias, Assistant Attorneys General, Holly
D. Wilkens, Meagan J. Beale, Michael T. Murphy, Ronald A. Jakob and Christine Y. Friedman, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Randall Bookout
Post Office Box 211377
Chula Vista, CA 91921
(619) 857-4432
Christine Y. Friedman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9050