People v. Suarez ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTURO JUAREZ SUAREZ,
Defendant and Appellant.
S105876
Napa County Superior Court
CR103779
August 13, 2020
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
Justice Liu filed a concurring opinion, in which Justice Cuéllar
concurred.
PEOPLE v. SUAREZ
S105876
Opinion of the Court by Liu, J.
After this case was transferred from Placer County to
Napa County, a jury found defendant Arturo Juarez Suarez
guilty of the first degree murders of José Martinez, Juan
Martinez, J.M., and A.M. (Pen. Code, § 187, subd. (a)) and found
true the allegations that he personally used a firearm in the
murders of José and Juan (id. § 12022.53, subd. (d)) and that he
personally used a deadly and dangerous weapon in the murders
of J.M. and A.M. (id. § 12022, subd. (b)(1)). (All undesignated
statutory references are to the Penal Code.) The jury found true
the special circumstances that he committed these murders
while lying in wait (§ 190.2, former subd. (a)(15)) and that he
had been convicted of more than one offense of murder in the
first or second degree (§ 190.2, subd. (a)(3)). The jury also found
him guilty of forcible rape (§ 261, subd. (a)(2)), unlawful
penetration by a foreign object (§ 289, subd. (a)), and kidnapping
to commit rape (§ 209, subd. (b)(1)) of Y.M., and the jury found
true the enhancement allegations for those offenses. Following
the penalty phase, the jury returned a verdict of death. The trial
court sentenced him to death. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment.
PEOPLE v. SUAREZ
Opinion of the Court by Liu, J.
I. FACTS
A. Guilt Phase
1. Prosecution Case
a. Before the murders
Arturo Juarez Suarez (Juarez) was a seasonal worker at
the Parnell Ranch in Auburn in 1998. He lived in a trailer on
the ranch and worked six days a week, typically taking Sundays
off. He was married to Maria Isabel Juarez de Martinez (Isabel),
and he was friends with her brothers José and Juan Martinez,
all of whom had grown up in the same town in Mexico.
José and his wife Y.M. lived in Galt with their five-year-
old son, J.M., and three-year-old daughter, A.M. Juan also lived
with them. Juarez often spent holidays and weekends with the
family. He had a good relationship with J.M. and A.M.
Y.M. testified that Juarez made her uncomfortable on two
occasions, a few years before the capital crimes. One time, he
grabbed her waist, she told him to let her go, he said he was not
going to do anything, and he let her go. She slapped his face,
and he told her not to hit him. Another time, he touched her
ribs and her neck, and she told him to leave her alone. She told
José about one of these occasions, and it caused some problems
that were ultimately resolved.
On July 4, 1998, José, Y.M., J.M., A.M., and Juan visited
San Francisco without telling Juarez. When they returned,
Juarez and his friend Ernesto Orozco were at the Martinezes’
home. Juarez and Orozco spent the night there. Y.M. thought
Juarez seemed upset when they said that they had not been able
to call him before they had left for San Francisco that day.
Orozco testified that he did not notice any problems, but on the
drive there, he commented that the Parnell Ranch seemed like
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a nice place to live, and Juarez replied, “You’re way off. One can
go crazy here by oneself.”
Before leaving, Juarez made plans with José for the next
weekend. Y.M. testified that her family planned to pick him up
from the Parnell Ranch on Sunday, July 12 and give him their
car to attend an immigration appointment on Monday, July 13.
Juarez told his boss, Jack Parnell, that he planned to work on
July 12 and take off July 13.
b. July 12, 1998
At 4:00 or 4:30 p.m. on July 12, José, Y.M., J.M., A.M., and
Juan arrived at the Parnell Ranch. José wore a watch, Juan
wore gold chains, and both carried wallets. Y.M. wore green
shorts, a white shirt, and tennis shoes.
When they arrived, they did not see Juarez. Y.M. went to
his trailer to retrieve some soap to wash their car. As she
returned to the car, she saw Juarez and José walking together
toward it. She did not see Juan. Before washing the car, José
needed to fix an issue with the car’s battery, and Juarez gave
him a knife to assist. While José fixed the issue, Juarez left.
When Juarez returned, he asked José to accompany him, which
José did. Y.M. finished washing the car, went toward the trailer,
and saw Juarez and José standing in the field.
Juarez returned and asked Y.M. for the car keys, which
she gave him. He went into his trailer, changed his pants, and
asked her if she wanted anything from the store. She requested
chips and a tea drink. Around this time, she noticed a rifle
“standing there,” although she did not recall its precise location.
Once he left, she walked around the ranch with her children for
an hour and a half.
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Juarez returned with chips, a tea drink, and beer. Y.M.
asked where José and Juan were, and Juarez said that they
were cleaning and cutting a deer that he had killed. Juarez
asked her to cut some aluminum foil for the deer meat and said
that he was going back to the deer. After cutting some foil, Y.M.
sat in a chair outside the trailer. J.M. and A.M. played
Nintendo, which Juarez had turned on for them, inside the
trailer, and later came outside.
Suddenly, Juarez put a rope around Y.M.’s neck, dragged
her to the trailer, and kicked her. Her children cried; J.M.
yelled, “Don’t hit my mommy,” and A.M. hugged J.M. Juarez
shouted at J.M. to shut up. Y.M. lost consciousness.
Inside the trailer, Juarez put a chain around Y.M.’s neck,
tied her wrists behind her back, and tied her feet. When she
regained consciousness, Y.M. was lying on the floor on her back.
He cut her shorts and underwear with scissors, exposing her
private parts, and he unzipped his pants. He put his fingers in
her anus and his penis in her vagina. He said, “Since you didn’t
want to willingly, now you’re gonna get fucked up.” She
screamed for her husband. She did not hear her children at this
time.
Juarez tied Y.M. to something before leaving and coming
back. She lapsed in and out of consciousness. He told her not
to move too much or else she would get strangled. He put a
handkerchief around her mouth, using gray tape; turned on the
radio loud; and left. She lost consciousness. Eventually, she
untied herself and left, leaving behind a tennis shoe and taking
a knife to defend herself. She did not turn off the radio. She ran
to Dorothy Parnell’s home, located on the ranch. Dorothy let her
inside and called 911 at 9:15 p.m.
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Jack and his son Jacob Parnell testified about that day. In
the late morning or the afternoon, Jack told Juarez to clean an
area near a barn on the ranch, and Juarez seemed abrupt, which
was out of character. Around 5:00 p.m., Jack saw Juarez driving
the Martinezes’ car much faster than usual. Around 6:30 or 7:00
p.m., Jacob saw Y.M. and her children walking around the
ranch. Between 7:15 and 7:30 p.m., Jacob saw Juarez driving a
tractor with a trailer. Also, sometime in the days or weeks
before that day, Jack saw Juarez coming from a target range
area on the ranch and carrying a small caliber rifle, which he
had not seen him carry before.
c. The investigation
When law enforcement officers arrived at the Parnell
Ranch, Y.M. was hysterical. She wore a long shirt that had
blood on it, a bandanna around her neck, and beige underwear
that Dorothy had given her. She had a sock and a tennis shoe
on her left foot, and a sock and a cord tied around her ankle on
her right foot. She had blue-green underwear, with its crotch
area cut, wrapped around her waist. She had rope marks
around her ankles, wrists, and throat, and duct tape in her hair
and wrapped around her neck. Her face and lip were swollen,
and she had dried blood in her mouth, blood coming out of her
right ear, and abrasions, bruises, and discoloration around her
eyes. That night, she repeated “Arturo bad” and described his
attack.
Around 9:30 p.m., Deputy Mark Reed and Deputy Kurt
Walker entered Juarez’s trailer to look for him. He was not
there. Deputy Reed located and seized a .22-caliber rifle and a
.30-06 rifle. The .22-caliber rifle was loaded, and there was
ammunition for the .30-06 rifle in the trailer. Around 11:45
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p.m., Detective William Summers and Deputy Randy Owens
entered Juarez’s trailer in an effort to locate identifying
information.
The following day, Y.M. returned to the Parnell Ranch and
noticed, in front of the trailer, a piece of broken wood that had
not been there the day before. That afternoon, Detective Desiree
Carrington searched the trailer pursuant to a warrant. Outside
the trailer, she saw a wooden stick, twine, a chair, an iced tea
can, a beer can, a golf club, clear glass, duct tape, rope, a silver
chain, a pair of green shorts with a brown belt, and three .22-
caliber expended casings. In the screened porch, she found duct
tape, a silver chain, a roll of plastic wrap inside an aluminum
foil box, aluminum foil, and a pair of scissors. Inside the trailer,
she saw twine, a black wallet or checkbook cover, a white tennis
shoe, a roll of duct tape, boxes of ammunition, and a 12-pack of
beer, among other items. There were boots under the bed, and
inside them were three metal chains, a watch, and two wallets
containing identification for José and Juan, $147 in American
currency, and $80 in Mexican pesos. These items did not have
dirt on them, and the clasps on the chains appeared undamaged.
A piece of duct tape containing strands of dark hair was
found in the field. A criminalist testified that the hair could
have come from A.M.’s head. From the location of the tape,
deputies noticed a set of faint tire tracks leading toward some
berry bushes. Following them with the assistance of search
dogs, they came across a manmade opening in the bushes, with
some sticks and wood placed in front of it. This opening was
approximately a quarter-mile from the trailer. There, they
found an area of freshly moved dirt that appeared to be a grave.
There were no apparent blood trails or smears leading up to it.
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Near it, there was a blood-spattered, square-nosed shovel
without a handle and a round-nosed shovel.
The grave was rectangular, measuring approximately five
and a half to six feet in length, two feet in width, and three feet
in depth. Its walls were cut smoothly, at 90-degree angles. An
excavation team unearthed a child’s leg at approximately 19
inches deep. They then unearthed, first, a male child lying
facedown; second, a female child lying faceup with a stick in her
hand and her mouth open and covered with dirt; third, an adult
male lying faceup with his legs and his right arm outstretched
and his left arm crossed over his chest; and, finally, an adult
male lying faceup with his legs outstretched and his hands
crossed over his chest. There was a .22-caliber expended casing
inside the grave and an apparent blood stain on the floor of the
grave.
d. The autopsies and Y.M.’s injuries
Dr. Donald Henrikson performed the autopsies. J.M. had
a depressed skull fracture and linear fractures extending into
the base of his skull; contusions and abrasions on his face, back,
and wrist; and hematomas in his shoulders, chest, and soft
tissue near his skull. He had residue of adhesive tape around
his mouth, cheek, arms, and legs. His mouth, trachea, and
bronchial tree were full of dirt, and dirt was mixed with
moisture near his mouth and nose. He was hit at least once on
his back and eight times on his head. His back injury was
consistent with a tubular instrument, such as a shovel handle,
and his head injury was consistent with a shovel head. The
blunt force trauma likely rendered him unconscious but was not
sufficient to cause his death. He died of asphyxiation by
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obstruction of the airway due to aspiration of foreign material
(soil).
A.M. had three fractures in her skull, hematoma over both
sides of her head, and contusions and abrasions on her face,
head, trunk, arms, and legs. She held a twig, and her airways
had mud in them. She had residue of adhesive tape on her chin,
arms, and left ankle. The blunt force trauma likely rendered
her unconscious but was not sufficient to cause her death. She
died of asphyxiation due to obstruction of her airway by
aspiration of foreign material (soil).
José died of two gunshot wounds to his head, one to the
back of his head and one in front of his left ear. Both were
contact wounds, fired from less than an inch away. He also had
abrasions and contusions on his head, trunk, arms, and right
leg, and abrasions and contusions on his back, which suggested
that he might have been dragged while supine.
Juan died of three gunshot wounds to his head, all of
which were fired from less than an inch away: one to his upper
right forehead; one to the left side of his nose; and one to the
back of his head on the right. He also had abrasions and
contusions on his trunk and arms.
Kim Marjama, a sexual assault nurse examiner,
conducted a sexual assault examination of Y.M. Y.M. had
swelling, contusions, abrasions, and lacerations on her face,
blood in her right inner ear canal, and a hematoma in her right
eye. There were swelling, contusions, and abrasions on her
neck, and a red linear abrasion encircling her neck. She had
contusions and abrasions on her arms and legs, and red linear
abrasions encircling her wrists and ankles. In addition, she had
marked edema bilaterally to her labia and a divot in her right
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inner labia. She had marked edema and contusions in the
periurethral area, and erythematous edema and an abrasion to
the posterior fourchette. She had normal findings inside her
vagina, and no sperm was found. Marjama testified that the
posterior fourchette injuries were consistent with blunt force
trauma, which was consistent with penile penetration, and that
the divot in the labia was indicative of digital penetration.
e. Juarez’s flight and arrest
On Monday, July 13, Juarez went into a drugstore in
Auburn, purchased a shirt and a cowboy hat, and asked for
quarters. He used a pay phone outside the store. He called,
among others, his cousin Pablo Juarez and asked Pablo to pick
him up at a bus station in Sacramento. Pablo did so. Juarez
told Pablo that he had been in a fight. He said he had killed
José, Juan, and the children, beaten Y.M., and shot José and
Juan and put them in a hole. He told Pablo the children had
wanted to see their father and uncle, but he did not say how he
had killed the children. He left Pablo’s home that night.
On Tuesday, July 14, Juarez arrived at Josefina Torres
Yanez’s apartment in Wilmington, where she lived with Jorge
Lucho and their children. Juarez told Torres that he had shot
and killed his brothers-in-law in self-defense because they were
going to kill him. He told her that he had killed the two children
by hitting them with a stick or a shovel. He did not know why
he had killed the children, but he said they had been crying and
he had been nervous. He told her that he had hit and dragged
Y.M. by her neck but had not raped her. Juarez told Lucho that
he had gotten into an argument with two coworkers, and while
defending himself, he had shot and killed them. Torres also
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testified that approximately a week earlier, Juarez had told her
that his in-laws would kill him and he wanted to commit suicide.
On Wednesday, July 15, law enforcement officers arrested
Juarez at the apartment. From the apartment, they seized a
cowboy hat and a bag containing some clothing, a pocket knife,
and a pen. Following his arrest, Long Beach Police Detective
Dennis Robbins and FBI Special Agent Elizabeth Stevens
transported him to the police station. During the drive, Juarez
asked Stevens, who spoke Spanish, why they had arrested him
(or something to that effect), and she told him he was being
arrested for four murders and the rape of a female. He said he
did not rape the female. He also said he had planned to leave
the following day for Mexico.
At the station, he said the murders were true but he did
not rape the woman. Detective Robbins and Agent Stevens
interrogated Juarez for approximately an hour. Juarez said he
got into a heated discussion with his brothers-in-law after they
had accused Juarez of womanizing, which he denied. He was
carrying a rifle, which Juan requested and placed on the ground.
Juarez then shot the men with the rifle and dragged their bodies
to a hole. He returned to the trailer and beat his brother-in-
law’s wife. He did not know why he beat her but said he had
experienced sleeplessness and nervousness. He then walked the
children to the hole. He did not know what he intended to do
with them. During the walk, the girl became tired, so he let go
of the boy’s hand and carried her. Once there, he hit the boy
with the wooden part of a shovel, then hit the girl too, put their
bodies in the hole, and put dirt on them. He walked back to the
trailer, saw police cars, and ran up a hill.
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After being transported to Placer County, Juarez was
interrogated the next morning by Sergeant Bob McDonald and
Detective Michael Bennett. Interpreter Frank Valdes
translated their questions into Spanish for Juarez. A tape of the
interrogation was played.
In the interrogation, Juarez initially said he shot José and
Juan during an argument. He said that he then beat and tied
Y.M. and touched her vagina. The children cried, and he taped
them to quiet them; he removed the tape when he went outside
the trailer, leaving Y.M. tied up. He then walked with the
children because they wanted to see their father. The children
calmed down. He walked them to the hole, hit them over the
head with a stick, put them with José and Juan, and put some
dirt over them.
Later in the interrogation, he said that he had planned it
all for about a week. Although he initially said he dug the hole
that day, he subsequently said he dug the hole on Monday or
Tuesday. He dug the hole deep enough to fit Y.M. Asked if he
planned this because he had problems with the family, he
replied affirmatively. He said he killed José and Juan near the
hole, after telling them that he had shot a deer and needed them
to go to it. He took their wallets and jewelry to avoid their being
identified. He said he killed the children because he did not
have any other way out. He also said that for five or six years
he had suffered from sleeplessness and nervousness that
affected his actions.
f. Other evidence
Criminalists testified that the casing found inside the
grave and the three casings found around the trailer had been
fired from Juarez’s .22-caliber rifle. Bullet fragments recovered
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from José and Juan could have been fired from the rifle, but
there were insufficient points of comparison to conclude that
they were. Scrapings from J.M. and A.M. revealed adhesive
residue. DNA analysis was conducted of several items,
including the shovel, Juarez’s black pants, Y.M.’s blue
underwear, and the scissors. Juan could not be eliminated as a
contributor of the DNA on the shovel. Juarez and Y.M. could
not be eliminated as contributors of the DNA on his black pants
and on her blue underwear. Juarez could not be eliminated as
a contributor of the DNA on the scissors, and a random match
of this profile would be expected in approximately one in 21,000
Hispanics. Juarez’s fingerprint also was found on duct tape.
Finally, the jury visited the Parnell Ranch.
2. Defense Case
The defense cross-examined some witnesses about
Juarez’s demeanor after July 12 and his complaints of
headaches, sleeplessness, and nervousness. The defense also
presented four witnesses. Y.M. testified that Juan sometimes
did not accompany the family to the Parnell Ranch, so she did
not know if Juarez thought Juan would accompany them on July
12. Detective Diana Stewart testified that on July 13, Y.M. had
said she was not sure whether she had seen Juarez’s penis
because she had lapsed in and out of consciousness. A
pathologist testified that Y.M.’s injuries could have been caused
by hands or fingers, and it was inconclusive whether
penetration had occurred. An interpreter testified about
translation and transcription errors in the taped interrogation.
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B. Penalty Phase
1. Prosecution Case
Y.M. testified about the deceased victims. Juan, who was
27 years old, participated in activities with Y.M.’s family. José,
who was 37 years old, enjoyed helping people, playing soccer,
and playing with his children. He planned to own a business
and a home. J.M. and A.M. were affectionate and protected one
another. J.M. enjoyed going to school and being outside, and
A.M. enjoyed playing with toys, going to McDonald’s, and going
to the park.
When Y.M. learned about their deaths, it was “like a
nightmare,” and she “felt that [her] life had no meaning.” She
felt alone and hopeless. She had to learn how to drive and to
find work to support herself. She wished she could turn back
time and give her life for her children, and she felt a lot of pain
for having been unable to do anything for them as they watched
her being beaten. She missed everything about her family. She
did not have plans for the future; she said that it was very
difficult but that she will move on “with the help of God.”
During her testimony, the prosecutor introduced a
photograph of the family, a photograph of Juan with J.M. and
A.M., and a home video of J.M. and A.M. on the day of their
murders.
2. Defense Case
Juarez’s mother, Maria Suarez Aguilar, had 10 children
with her husband, Tomas Juarez Gonzalez, in Santa Gertrudis,
Mexico. One of the children, Abundio, died in an accident. The
family was poor; they slept in the same room and did not have a
bathroom inside the house. Sometimes there was no food for the
children. Juarez was one of the youngest children. His mother
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did not take him to see a doctor or a dentist, even when he had
the measles. He began work around the age of 10 and gave her
his money. He later sent her money from the United States.
She testified that until about 10 years ago, her husband
drank almost every day, and he hit her and said nasty things to
her. He yelled at the children but did not hit them. She recalled
a time when her son Abundio took her to Mexico City to protect
her.
Juarez’s living siblings testified about their childhoods
and expressed their love for him. Benjamin Juarez Suarez
testified that their home did not have electricity or hot water
when Juarez was born. Their father drank, hit their mother,
and yelled at her and the children. Sometimes they had no food,
and their father used their money to purchase alcohol. When
their mother left for Mexico City, some of the siblings, including
Juarez, stayed with their father. The family suffered when
Abundio died. Isaias Juarez Suarez testified that their father
drank and hit, kicked, and ripped clothing off their mother.
When this happened, Juarez became frightened and sad. Their
father also called the children vulgar names and hit Juarez
several times. Later, one of Isaias’s children died from
leukemia, and Juarez provided money for his treatments and
funeral. Silviano Juarez Suarez testified that their father
drank, but he hit the children only if they did something wrong.
Beatriz Juarez Suarez testified that their father drank
and yelled at their mother and the children. During one
argument, he threw a glass, which cut her sister Celia Juarez.
Celia testified about that argument and about their father
drinking and hitting their mother, their mother leaving for
Mexico City, and the lack of food at home. She testified that
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their father yelled at Juarez and hit him if he did something
wrong. Daniel Juarez Suarez testified that their father drank
and sometimes hit or squeezed Juarez. Miroslava Juarez
Suarez testified that their father hit their mother, used money
to buy alcohol instead of food, and hit the children when they
did something that he did not like. Maria Juarez Suarez
testified about their father drinking and hitting them, their
mother leaving for Mexico City, and the lack of food at home.
One time, their father threw her onto the bed and tried to rape
her, but she freed herself.
In addition, Benjamin’s wife testified that she once saw
their father go after Abundio with a knife. Daniel’s wife testified
that Juarez was one of her children’s godfathers and that he
wrote her a letter when her father died. A neighbor also testified
about their father’s drinking, and other witnesses testified
about Juarez’s generosity. Juarez’s former teacher testified that
he received good grades, was diligent, polite, and extroverted,
and finished secondary school. He did not attend preparatory
school because he thought it would be better to work and support
his family.
Juarez’s daughter, Liliana Juarez Martinez, testified that
she loved him. Juarez’s wife, Isabel, testified that she gave birth
to their daughter Liliana in 1990, and they married in a civil
ceremony. She gave birth to their second daughter Jessica in
1992. She lived with Juarez in the United States for a few years,
but she returned to Mexico in 1995 when she experienced
medical problems. He sent her money about every three weeks,
and he brought his daughters toys when he visited them.
Isabel testified that in 1998 she asked for a separation
because she was jealous, but he did not agree. They ultimately
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resolved the issue between them. She also testified that he
complained of headaches and sleeplessness, for which he
obtained some medicine in 1998. Around this time, in March
1998, Juarez told Daniel that he was having headaches and back
pain, and Juarez looked sad and serious. In April 1998, Juarez
appeared sad and moody to Beatriz and her husband.
A clinical psychologist and psychosocial and cultural
expert testified that Juarez’s father brought shame to the family
and affected the children’s emotional and social development.
When Juarez’s mother departed for Mexico City, it created a
sense of abandonment, and Abundio’s death caused significant
grief. The expert testified about the effects of poverty on their
childhood and about the general experiences of migrant
workers.
James Esten, a correctional consultant, testified as an
expert that Juarez would be able to adapt to the conditions of
life imprisonment without parole, without posing a threat to
others. While Juarez was housed in Placer County and Napa
County, he received no disciplinary write-ups, and his security
classification was reduced.
II. JURY SELECTION ISSUES
A. Challenges to Death Qualification
“ ‘A prospective juror may be challenged for cause based
upon his or her views regarding capital punishment only if those
views would “ ‘prevent or substantially impair’ ” the
performance of the juror’s duties as defined by the court’s
instructions and the juror’s oath.’ ” (People v. Wall (2017)
3 Cal.5th 1048, 1061–1062.) Juarez contends that this process
of excluding prospective jurors whose views would prevent or
substantially impair the performance of their duties creates an
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unconstitutional death penalty scheme and violates his rights
under statutory, constitutional, and international law. He
further contends that this process violates the rights of excluded
prospective jurors. Except as discussed below, he does not argue
that the excluded jurors failed to meet the applicable standard
for exclusion; rather, he asks us to reconsider our decisions
permitting such exclusion.
Even if we assume that Juarez did not forfeit these claims
and has standing to assert them, they lack merit. Juarez argues
that our state statutes do not permit the death qualification
process and asks us to overturn our contrary conclusion in
People v. Riser (1956) 47 Cal.2d 566 (Riser). In Riser, we
interpreted Penal Code former section 1074 (now Code Civ.
Proc., § 229), which provided in relevant part that “ ‘[a]
challenge for implied bias may be taken for all or any of the
following causes, and for no other . . . [subdivision] 8. If the
offense charged be punishable with death, the entertaining of
such conscientious opinions as would preclude his finding the
defendant guilty; in which case he must neither be permitted
nor compelled to serve as a juror.’ ” (Riser, at p. 573, quoting,
Pen. Code, former § 1074, subd. (8).) We held that even though
“a literal reading of section 1074, subdivision 8, does not compel
the exclusion of jurors incapable of exercising the discretion
contemplated by section 190” to decide whether death or life
imprisonment is the appropriate punishment, “[i]t would be
doing violence to the purpose of these sections of the Penal Code
. . . to construe section 1074, subdivision 8, to permit these
jurors to serve” and “would in all probability work a de facto
abolition of capital punishment, a result which, whether or not
desirable of itself . . . is hardly appropriate for this court to
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achieve by construction of an ambiguous statute.” (Riser, at
pp. 575–576.)
We have confirmed our holding in Riser, supra,
47 Cal.2d 566. (See, e.g., People v. Mabry (1969) 71 Cal.2d 430,
445; People v. Gonzales (1967) 66 Cal.2d 482, 497–499; People v.
Smith (1966) 63 Cal.2d 779, 789.) In People v. Hovey (1980)
28 Cal.3d 1, 9, footnote 9 (Hovey), we stated, “Th[e] legislative
‘preference for one jury qualified to act throughout the entire
case’ [citation] would seem to be inconsistent with a literal
reading of section 1074, subdivision 8, and thus supports the
judicial gloss placed on that section by Riser and its progeny.”
Juarez provides no persuasive reason to overturn our precedent.
Nor does he demonstrate that the process lacks statewide
uniformity in its application.
In addition, we have considered and rejected claims that
the death qualification process is unconstitutional. (See, e.g.,
People v. Mendoza (2016) 62 Cal.4th 856, 912–915 (Mendoza);
People v. Chism (2014) 58 Cal.4th 1266, 1286; People v. Tully
(2012) 54 Cal.4th 952, 1066 (Tully); People v. Taylor (2010)
48 Cal.4th 574, 602–604 (Taylor).) As we summarized in
Mendoza: “ ‘The death qualification process is not rendered
unconstitutional by empirical studies concluding that, because
it removes jurors who would automatically vote for death or for
life, it results in juries biased against the defense. [Citations.]
[¶] Lockhart [v. McCree (1986) 476 U.S. 162] . . . , which
approved the death qualification process, remains good law
despite some criticism in law review articles. [Citations.] “We
may not depart from the high court ruling as to the United
States Constitution, and defendant presents no good reason to
reconsider our ruling[s] as to the California Constitution.”
[Citation.] [¶] . . . Nor does the process violate a defendant’s
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constitutional rights, including the Eighth Amendment right
not to be subjected to cruel and unusual punishment, by
affording the prosecutor an opportunity to increase the chances
of getting a conviction. [Citations.] Defendant claims the voir
dire process itself produces a biased jury. We have held
otherwise. [Citation.] [¶] Death qualification does not violate
the Sixth Amendment by undermining the functions of a jury as
a cross-section of the community participating in the
administration of justice.’ ” (Mendoza, at p. 914.) We have
rejected the arguments that “the death-qualification process
fails to produce the heightened reliability required for death
judgments” and that the death qualification process violates
equal protection “because capital defendants receive different,
more conviction-prone juries than other defendants.” (Id. at
p. 913.)
We have found “flawed the premise underlying
defendant’s assertion that death qualification, by eliminating
the segment of the community that opposes the death penalty,
skews the data courts typically rely on to determine ‘evolving
standards of decency’ for Eighth Amendment purposes.
Through the death qualification process, individuals may be
excused not only for their unyielding opposition to capital
punishment but also for their intractable support of it.
[Citations.] We reject defendant’s contention that death
qualification is irrational because it disqualifies individuals
based on their moral beliefs when the penalty phase
determination is ‘ “inherently moral and normative.” ’
[Citation.] Disqualified jurors are properly excused for cause,
not on the basis of their personal, moral beliefs regarding the
death penalty, but because of their inability to ‘temporarily set
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aside their own beliefs in deference to the rule of law.’ ” (Taylor,
supra, 48 Cal.4th at pp. 603–604.)
We have rejected the argument that death qualification
violates a defendant’s right to a jury selected from a
representative cross-section of the community. (Taylor, supra,48 Cal.4th at p. 603.) We have concluded that “ ‘[t]he impacts of
the death qualification process on the race, gender, and religion
of the jurors do not affect its constitutionality.’ ” (Mendoza,
supra, 62 Cal.4th at p. 914; accord, Tully, supra, 54 Cal.4th at
p. 1066.) We have rejected “[the] further assertion that death
qualification violates [a defendant’s] right to a representative
jury because empirical studies show that the process results in
a disproportionate number of ethnic minorities, women, and
religious individuals being removed from capital juries.”
(Taylor, supra, 48 Cal.4th at p. 603.) “As the high court
explained in rejecting a defendant’s claim of an
unrepresentative jury, unlike the impermissible removal of
ethnic minorities or women from jury service, ‘ “[d]eath
qualification” . . . is carefully designed to serve the State’s
concededly legitimate interest in obtaining a single jury that can
properly and impartially apply the law to the facts of the case at
both the guilt and sentencing phases of a capital trial. There is
very little danger . . . that “death qualification” was instituted
as a means for the State to arbitrarily skew the composition of
capital-case juries.’ ” (Ibid., quoting Lockhart v. McCree, supra,476 U.S. at pp. 175–176.) Although Juarez cites recent studies
purporting to show troubling data that “blacks are significantly
more likely than whites to be excluded from capital juries
through death qualification,” these studies do not establish,
contrary to our precedent, that the death qualification process
is unconstitutional.
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We also find unpersuasive the related claim that this
process violates the rights of excluded prospective jurors. As the
high court has stated, “the removal for cause of ‘Witherspoon-
excludables’ in capital cases does not prevent them from serving
as jurors in other criminal cases, and thus leads to no
substantial deprivation of their basic rights of citizenship. They
are treated no differently than any juror who expresses the view
that he would be unable to follow the law in a particular case.”
(Lockhart v. McCree, supra, 476 U.S. at p. 176; see Witherspoon
v. Illinois (1968) 391 U.S. 510.) Again, the death qualification
process “is carefully designed to serve the State’s concededly
legitimate interest in obtaining a single jury that can properly
and impartially apply the law to the facts of the case at both the
guilt and sentencing phases of a capital trial.” (Lockhart, at
pp. 175–176.)
Finally, we have concluded that the death qualification
process does not violate international law. (See People v. Krebs
(2019) 8 Cal.5th 265, 351.) In sum, we reject Juarez’s
contentions that the death qualification process violates
statutory, constitutional, or international law.
B. Excusal of Prospective Juror Deborah B. for
Cause
Juarez contends that the trial court erred in excusing
Prospective Juror Deborah B. based on her views about the
death penalty.
“Under Wainwright v. Witt (1985) 469 U.S. 412, 424
[83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), we consider whether the
record fairly supports the trial court’s determination that [a
prospective juror’s] views on the death penalty would have
prevented or substantially impaired her performance as a
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juror.” (People v. Thomas (2011) 52 Cal.4th 336, 357.)
“ ‘ “Generally, a trial court’s rulings on motions to exclude for
cause are afforded deference on appeal, for ‘appellate courts
recognize that a trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record.’ ” ’ ” (Id. at p. 358.)
“ ‘When the prospective juror’s answers on voir dire are
conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts
if supported by substantial evidence.’ ” (People v. Wall, supra,
3 Cal.5th at p. 1062.)
In Prospective Juror Deborah B.’s jury questionnaire, she
wrote, “If the person is found guilty and the jurors have found
them guilty then I believe in the death penalty.” She believed
the state should automatically put someone to death for
intentionally killing a human being, murdering more than one
human being, randomly killing a human being for no apparent
reason, or killing a child. Asked in what kind of murder case life
imprisonment without the possibility of parole might be
appropriate, she wrote, “I believe if you went out to murder
someone and you killed them — death penalty — if the murder
was an accident life without the possibility of parole.” She said
that she did not have views or beliefs that would make it either
impossible or extremely difficult for her to consider or vote for
the death penalty, and she would not automatically vote for the
death penalty or life imprisonment without the possibility of
parole based on the information she knew about this case. She
identified herself as belonging to group 4, which was defined as
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having some doubts or reservations about the death penalty but
not always voting against it.
She expressed some hesitation, however, about her ability
to vote for the death penalty. Asked her general feelings about
the death penalty, she wrote, “I do not feel this is my job giving
someone the death penalty[.] I am not God.” She said she did
not have strong opinions about the death penalty, but
commented, “I just would not like to give someone a death
penalty.” Asked whether she supported the death penalty, she
checked both the yes and the no boxes, explaining, “I believe in
the death penalty but would not want to be the juror who had to
make the decision.” She likewise checked both the yes and the
no boxes when asked whether she opposed the death penalty;
whether she would refuse to find the defendant guilty or the
special circumstances true solely to avoid having to make a
decision on the death penalty; whether she would automatically
vote for life imprisonment without the possibility of parole; and
whether she would automatically vote for the death penalty.
She created and checked a box labeled “not sure” when asked
whether she could personally vote for the death penalty if the
facts warranted it, and commented, “I am not sure if I could do
this or not.”
During questioning pursuant to Hovey, supra, 28 Cal.3d 1,
Deborah B. confirmed that she was not philosophically opposed
to the death penalty, but she had strong reservations about
personally serving as a juror in a capital case. She said that she
would not be able to vote for a death sentence if the aggravating
factors substantially outweighed the mitigating factors and
even if there were four murders, including two murders of
children. When asked whether she would be willing to serve as
a juror in a capital case, she responded, “I would. But like I told
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Opinion of the Court by Liu, J.
him I probably couldn’t. You know, I’m just being truthful. And
the more I thought about it the whole week that I been here and
then came back, I just kept confirming that in my mind. I’m a
teacher, and I deal with children every day. I just — I just
couldn’t play that role. Even though maybe I did feel that’s what
he deserved, that’s not my right I feel for myself. Maybe other
people feel they could do that, and that’s fine. And maybe that’s
what he did deserve, but I in my heart could not do that. I would
be a hold up or — I just couldn’t do that.”
When asked whether she would listen to and follow the
trial court’s instructions, she responded, “Absolutely.” When
asked whether she could, as opposed to would, vote for the death
penalty if the aggravating circumstances outweighed the
mitigating circumstances, she responded, “I mean is it my right
to be able to vote no? I mean I just couldn’t do that. I couldn’t
in my heart. That’s — I couldn’t unless that was the law.
Because the law says if the evidence is — if the evidence was
there, and that was something I had to do, then I guess I would
have to do it.”
She then confirmed that there was no conceivable set of
facts under which her view would allow her to vote for the death
penalty, explaining, “It’s just really hard. I know if it was my
own children, and this happened to them, then of course I would
say yes I could. And I would want that for my own family. But
that’s not the situation right now. This is something completely
different. And I don’t think I — even though I felt he was guilty,
and he deserved a punishment, that that could be up to me to
give to him.” She agreed that her view was essentially “there is
no reason to put on a penalty phase because [she] wouldn’t listen
to or weigh the aggravating and mitigating circumstances in any
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Opinion of the Court by Liu, J.
meaningful way because whatever ended up happening [she’d]
be voting for life without parole rather than death anyway.”
The trial court excused Prospective Juror Deborah B. over
the defense’s objection. The court stated, “I couldn’t get one iota
of willingness to impose the death penalty in this or any other
case.” The court continued, “In evaluating her demeanor she
was completely certain when she answered the question she was
asked about whether she could impose a death sentence. I am
entirely satisfied that this is a person who would not be able to
follow the court’s instructions to evaluate the evidence, and only
reach a decision as to death or life without parole after having
done so. This is a person who would not be able to impose a
death sentence no matter what case was before her.”
The trial court did not err. Although Deborah B.
supported the death penalty in theory, she gave equivocal
responses in her questionnaire about her ability to impose it.
She then said during Hovey questioning that she would not be
able to vote for a death sentence if the aggravating factors
substantially outweighed the mitigating factors and even if
there were four murders, including two murders of children.
She agreed that her view was essentially “there is no reason to
put on a penalty phase because [she] wouldn’t listen to or weigh
the aggravating and mitigating circumstances in any
meaningful way because whatever ended up happening [she’d]
be voting for life without parole rather than death anyway.” To
the extent Juarez argues that the trial court erred because
Deborah B. said she would follow the law, we disagree. She said
that she could not vote for the death penalty “unless that was
the law . . . and that was something [she] had to do.” But a
“prospective juror’s statement that he thought he could vote for
death ‘if [he] had to’ would not necessarily have established that,
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Opinion of the Court by Liu, J.
contrary to the trial court’s finding, he could perform his duties
as a juror. Clearly, a juror is never required to vote for the death
penalty.” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 401.) We therefore find that substantial
evidence supports the trial court’s excusal of Deborah B.
C. Denial of Challenges for Cause
Juarez contends that the trial court erred in denying his
challenges for cause of 16 prospective jurors who, he claims,
were biased in favor of the death penalty. “[T]o preserve this
claim for appeal we require, first, that a litigant actually
exercise a peremptory challenge and remove the prospective
juror in question. Next, the litigant must exhaust all of the
peremptory challenges allocated by statute and hold none in
reserve. Finally, counsel (or defendant, if proceeding pro se)
must express to the trial court dissatisfaction with the jury as
presently constituted.” (People v. Mills (2010) 48 Cal.4th 158,
186.)
Juarez failed to preserve his claim for appeal. He
exercised peremptory challenges against only six of the 16
prospective jurors. He did not exhaust all of his peremptory
challenges as to the main jury panel, although he did as to the
alternate panel. Nor did he express dissatisfaction with the jury
to the trial court. Indeed, he does not deny these facts but rather
urges us to set aside the forfeiture rule. We have previously
declined to do so (People v. Manibusan (2013) 58 Cal.4th 40, 61),
and he provides no persuasive reason for us to do so here.
III. INTERPRETER ISSUES
Juarez contends that “shoddy and inaccurate
interpretative and translation assistance and services” violated
his state constitutional right “to an interpreter throughout the
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Opinion of the Court by Liu, J.
proceedings” (Cal. Const., art. I, § 14) and to his state and
federal constitutional rights to due process, to be present during
trial, to confront witnesses, and to a reliable process and
sentence.
A. Issues Regarding Y.M.’s Preliminary Hearing
Testimony
Juarez challenges the use of an unsworn, uncertified
interpreter, Ximena Oliver, to interpret Y.M.’s testimony at the
preliminary hearing.
In general, interpreters are required to take an oath and
to be certified. (Evid. Code, § 751, subd. (a); Gov. Code, § 68561,
subd. (a).) A trial court, however, may use an interpreter who is
not certified if there is “good cause” to do so. (Gov. Code,
§ 68561, subd. (a).) In that situation, the court must find,
among other things, that good cause exists and that the
interpreter is qualified to interpret the proceedings. (See Cal.
Rules of Court, rule 2.893 [formerly rule 984.2].)
It is uncontested that Oliver was neither sworn nor court-
certified, except with respect to administrative hearings. When
Juarez moved to dismiss the information on these grounds, the
trial court denied the motion. The court found that Juarez had
not waived his right to her oath or certification, but he had
waived any issues as to the accuracy or competency of her
interpretation and there was no prejudice.
“Improper procedures in the use of an interpreter do not
rise to the level of a constitutional violation unless they result
in prejudice demonstrating defendant was denied his right to a
fair trial.” (People v. Superior Court (Almaraz) (2001)
89 Cal.App.4th 1353, 1360; see id. at pp. 1359–1360 [failure to
follow procedural requirements or administer oath for an
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Opinion of the Court by Liu, J.
interpreter alone does not deprive a defendant of the
constitutional right to an interpreter].) Further, “a conviction
will not be reversed because of errors or irregularities that
occurred at a preliminary hearing or grand jury proceeding,
absent a showing that the asserted errors ‘deprived [the
defendant] of a fair trial or otherwise resulted in actual
prejudice relating to [the] conviction.’ ” (People v. Carrington
(2009) 47 Cal.4th 145, 178; People v. Estrada (1986)
176 Cal.App.3d 410, 414, 416 [applying standard and finding no
prejudice as a result of a noncertified interpreter having served
as defendant’s personal interpreter at the preliminary hearing].)
We see no prejudice here. At the time of Oliver’s
interpretation, Juarez had an independent interpreter. Oliver’s
interpretation contained some errors, but defense counsel
represented that a certified interpreter had listened to Oliver’s
interpretation and determined it to be “guardedly acceptable.”
And more importantly, Y.M. testified at trial, and Juarez
acknowledges that any “[p]rejudice was restricted to the
preliminary hearing, and could have been cured by subsequent
trial testimony.”
Juarez next challenges the use of his interpreter to
translate an outburst at the preliminary hearing and his
absence when his interpreter did so. While Y.M. testified, the
prosecutor remarked that she was “obviously upset” and asked
for a break. The court declared a recess until the next morning.
The court then reconvened and stated for the record that Y.M.
had yelled something in Spanish. The court believed her
statements were made shortly after the recess, but there was
some dispute about their timing relative to the recess.
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Opinion of the Court by Liu, J.
When the court reconvened, counsel and Juarez’s
interpreter, Terri Bullington, were present, but he was not. The
court initially asked Bullington to interpret Y.M.’s statements,
but defense counsel asked that Oliver instead interpret them.
After clarifying that Oliver was in the building, the court agreed.
The court asked whether defense counsel wanted Juarez there,
and upon learning that he was not in the building, defense
counsel agreed to make a record and catch him up. Oliver then
interpreted Y.M.’s statements. While doing so, Oliver said that
“[u]nless the other interpreter knows,” she did not know how to
interpret the word “desgraciado.” Bullington remarked, “That
caught me, too. Like ‘a horrible person.’ ” Oliver elaborated
about that word and ultimately summarized that Y.M. had said,
“damn you” three times; “desgraciado” twice; “I hope you burn
in hell”; and “I cannot take this any longer.” The court said that
unless counsel wished to address anything, it would recess and
repeat this interpretation the next day. The court then said,
“Ms. Bullington?” Bullington said, “I can add two things. She
also said, ‘I hate you’ and she said, ‘Why?’ ” The court asked
whether Bullington could add anything else, and Bullington
said that she agreed with Oliver’s interpretation. The next
morning, defense counsel confirmed that Bullington had
translated a transcript of this session to Juarez.
Juarez moved to dismiss the entire action, arguing that
his absence from and Bullington’s involvement in this session
violated his rights. The trial court denied the motion. The court
explained that the bailiff had loaded him immediately into the
transport van for his security after Y.M. had yelled and two
courtroom spectators had leaned forward and tried to say
something to him. Despite his absence, the court had thought
that Y.M.’s statements should be interpreted “while memories
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Opinion of the Court by Liu, J.
were freshest.” The court concluded that this was not a critical
stage of the proceedings. The court further explained that it
initially asked Bullington to interpret Y.M.’s statements
because it believed Oliver had left. But after learning otherwise,
the court asked for Oliver’s interpretation. Bullington then
volunteered a couple of comments about that interpretation.
The court concluded that this did not compromise Juarez’s
relationship with her. The court ultimately struck Y.M.’s
statements from the record. When Juarez subsequently moved
to dismiss the information on these grounds, the trial court
denied the motion, finding that he was present during all
testimony in support of the charges, that Bullington’s
involvement “did not deny [him] his right to a dedicated
interpreter,” and that he suffered no prejudice.
“ ‘A criminal defendant’s right to be personally present at
trial is guaranteed under the federal Constitution by the
confrontation clause of the Sixth Amendment and the due
process clause of the Fourteenth Amendment. It is also required
by section 15 of article I of the California Constitution and by
sections 977 and 1043.’ [Citation.] ‘Under the Sixth
Amendment, a defendant has the right to be personally present
at any proceeding in which his appearance is necessary to
prevent “interference with [his] opportunity for effective cross-
examination.” ’ [Citation.] ‘Due process guarantees the right to
be present at any “stage that is critical to [the] outcome” and
where the defendant’s “presence would contribute to the
fairness of the procedure.” ’ [Citation.] ‘ “The state
constitutional right to be present at trial is generally
coextensive with the federal due process right. [Citations.]”
[Citation.] Neither the state nor the federal Constitution, nor
the statutory requirements of sections 977 and 1043, require the
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Opinion of the Court by Liu, J.
defendant’s personal appearance at proceedings where his
presence bears no reasonable, substantial relation to his
opportunity to defend the charges against him. [Citations.]’
[Citation.] ‘Defendant has the burden of demonstrating that his
absence prejudiced his case or denied him a fair trial.’ ” (People
v. Blacksher (2011) 52 Cal.4th 769, 798–799, fn. omitted
(Blacksher).)
Here, Juarez was present until the court recessed. He was
absent when Oliver interpreted Y.M.’s outburst. The outburst
occurred at the preliminary hearing, possibly after the court
recessed; it did not respond to a question or describe the crimes
with which he was charged, and it was ultimately struck from
the record. We conclude that his presence “was not necessary
for effective cross-examination or to contribute to the fairness of
the procedure. His absence did not deprive him of the full
opportunity to defend against the charges.” (Blacksher, supra,52 Cal.4th at p. 799.) In any event, it was harmless beyond a
reasonable doubt. (Mendoza, supra, 62 Cal.4th at p. 902
[federal constitutional error “ ‘pertaining to a defendant’s
presence is evaluated under the harmless-beyond-a-reasonable-
doubt standard’ ”].) Bullington translated the transcript to him,
and he “suggests nothing counsel might have done differently
had he been able to consult with [him]” at the session. (People
v. Butler (2009) 46 Cal.4th 847, 864.) We thus conclude that
Juarez fails to show how his absence “affected his ability to
defend himself or otherwise prejudiced his case.” (Blacksher, at
p. 800.)
We further conclude that Bullington’s involvement in the
session did not violate Juarez’s rights. “A person unable to
understand English who is charged with a crime has a right to
an interpreter throughout the proceedings.” (Cal. Const., art. I,
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Opinion of the Court by Liu, J.
§ 14.) “The California Constitution, as interpreted by the
California Supreme Court, makes it clear that a defendant is
entitled to two interpreters, one to interpret the witnesses’
testimony and the other to be the personal interpreter for the
defendant.” (People v. Estrada, supra, 176 Cal.App.3d at
p. 415.) Here, Oliver interpreted Y.M.’s statements. Oliver
prompted Bullington to assist in defining one word, and
Bullington added to Oliver’s interpretation. This assistance did
not deprive Juarez of his right to an interpreter. (Cf. People v.
Aguilar (1984) 35 Cal.3d 785, 793 [separate defense interpreter
may “ ‘serve to ensure the accuracy of . . . witness
interpreters’ ”].) Moreover, even if we assume that a violation
occurred, it was harmless beyond a reasonable doubt. (See
People v. Rodriguez (1986) 42 Cal.3d 1005, 1010–1012.) There
is nothing in the record to show that his “ability to communicate
[with Bullington] or comprehend was impeded” (id. at p. 1014;
see id. at pp. 1014–1016) or that he was otherwise prejudiced or
deprived of a fair trial (People v. Carrington, supra, 47 Cal.4th
at p. 178).
B. The Courtroom Audio Equipment
Juarez contends that the courtroom audio equipment in
Placer County and Napa County “prejudicially interfered with
proper interpretative assistance.” He argues that counsel,
witnesses, and interpreters expressed difficulty hearing
throughout the proceedings. He also points out issues with
Y.M.’s testimony.
At the preliminary hearing, Y.M. did not use a
microphone, but her interpreter did. At trial, Y.M. used a
microphone and her testimony was recorded, but she spoke
“very, very quietly.” After her trial testimony on March 14,
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2001, defense counsel told the court the following morning that
they could not hear her “at all yesterday, basically,” that they
“were having some difficulty with translation,” and that Juarez
“was having difficulty following.” Defense counsel requested
that Juarez listen to Y.M.’s testimony in Spanish rather than
have his interpreter interpret it for him. He confirmed that he
preferred this approach and added, “If she could raise her voice
so I could hear what she says because yesterday I couldn’t hear
anything.” The court granted the request and provided her an
additional microphone.
Trial courts should endeavor to ensure that all
participants can adequately hear the proceedings, making
appropriate use of technology. Our review of the record here
reveals that the acoustics and audio equipment in the
proceedings were poor. But the record also reflects that counsel,
witnesses, and interpreters routinely interrupted the
proceedings to express their difficulty hearing and to request
clarification, which they received. Juarez does not claim on
appeal that the trial court denied any request he made to clarify
the proceedings or otherwise minimize the hearing difficulties.
As to Y.M.’s March 14 testimony, defense counsel
expressed difficulty hearing and requested clarification, which
he received, a couple times. It was not until the next day that
defense counsel said they could not hear Y.M. “at all yesterday,
basically.” Had defense counsel raised the issue sooner, the
court could have remedied the issue sooner. And once defense
counsel raised the issue, the court accommodated the defense’s
requests. Moreover, there is little in the record to suggest that
Y.M.’s interpreter could not hear her or accurately interpret her
testimony into English, or that Juarez’s interpreter could not
hear Y.M.’s interpreter or accurately translate her
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Opinion of the Court by Liu, J.
interpretation into Spanish, except for defense counsel’s
reference the next day to “some difficulty with translation.” We
are unable to conclude on this record “that the hearing
difficulties adversely affected the defense, or prejudiced
defendant in any way.” (People v. Freeman (1994) 8 Cal.4th 450,
479–480.)
C. The Accuracy of Interpreters
Juarez argues that the interpreter Valdes made errors
during Juarez’s interrogation on July 16, 1998 in Placer County,
that the transcript of the same interrogation contained
additional errors, and that the trial court erred in denying his
motion for a mistrial on these grounds. Juarez further argues
that Valdes should not have served as the interpreter for both
him and the interrogators.
“ ‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial
motions.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1038.)
We conclude that the trial court did not abuse its
discretion by determining that any prejudice here was curable.
An interpreter testified that despite some errors, Valdes’s
interpretation retained its integrity, and there was adequate
communication during the interrogation. The court found only
one significant error in the transcript and concluded that it was
“imminently [sic] correctable.” The court told the jury that the
transcript contained transcription inaccuracies and that the
tape, not the transcript, was the evidence. As to the one
significant error, the court told the jury, “On page 44 of the
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transcript the defendant was asked the question: [¶] ‘Why didn’t
you kill her? You were going to come back and kill her?’ [¶] And
the transcript indicates that his answer was, ‘No. First I was
going to take her to see the children.’ [¶] When it comes time to
evaluating the tape, listen carefully to that answer, for example,
because you may find that the actual answer is, ‘No, well, first I
was going to take the children,’ which is significantly different.”
Later, the defense also presented testimony to the jury about
interpretation and transcription errors in the interrogation.
Considering these circumstances, we conclude that the alleged
errors related to his interrogation did not violate his
constitutional rights or deprive him of a fair trial.
Juarez next argues that there were other interpretation
errors “throughout this record,” citing as examples three
instances in which interpretations were incorrect or clarified.
To the extent he raises for the first time on appeal errors
committed by witness interpreters, he has forfeited his claim.
(People v. Romero (2008) 44 Cal.4th 386, 411.) In any event, he
fails to show that any errors violated his rights or prejudiced
him.
Finally, he contends that the trial court erred in denying
his request for a supplemental “check” interpreter. The court
denied his request because he failed to show his need for such
an interpreter, but the court did permit him to tape-record the
testimony of Spanish-speaking witnesses. On appeal, he argues
that he needed a “check” interpreter because “[c]ounsel were in
no position themselves to know when translations were full and
accurate, and the issue had been a recurring one.” He relies on
People v. Aranda (1986) 186 Cal.App.3d 230, 237, which stated,
“When a showing is made, at trial, that an interpreter may be
biased or his skills deficient, one solution may be appointment
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of a ‘check interpreter.’ ” But Juarez did not make such a
showing; thus the court did not err.
IV. GUILT PHASE ISSUES
A. Denial of Motion to Suppress
Juarez contends that the trial court erred in denying his
motion to suppress evidence seized from his trailer. Admitting
this evidence, he contends, violated his Fourth Amendment
rights and his state and federal constitutional rights to a fair
trial, due process, and a reliable penalty determination.
1. Searches of Trailer on July 12
Shortly after arriving at the Parnell Ranch on July 12,
Deputies Walker and Reed entered Juarez’s trailer to look for
him and the missing family members. They were inside the
trailer for “[p]robably less than two minutes.” They “lifted up
things, looked underneath things, opened up cupboards,” and
opened up “anything and everything . . . that somebody could
hide in.” Deputy Walker saw some duct tape and “something to
indicate that somebody had been tied up.” When he went into
the bed area, “[i]mmediately [he] could see there was
ammunition for various guns, rifles, all around.” Deputy Reed
found two rifles in the bed area, one under and one above the
bed. They seized the rifles but nothing else. Deputy Walker
testified that they seized the rifles for safekeeping because the
Parnell Ranch was “such a big area, 160 acres,” they were
concerned Juarez might come back to the trailer, and they did
not want the rifles to “be used against [them] or anyone else.”
Upon exiting, they did not place crime scene tape or a deputy at
the trailer door because they did not have “enough manpower at
that point.” They also searched the yard surrounding the
trailer.
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Around 11:45 p.m. that night, Detective Summers and
Deputy Owens entered Juarez’s trailer in an effort to locate
identifying information about him and the missing family
members. Detective Summers testified that he was inside for
approximately three minutes, but Deputy Owens guessed that
he was inside for 10 or 15 minutes. Detective Summers saw
some duct tape, ammunition, and cord, among other things. He
picked up a checkbook cover and found José’s driver’s license
inside it. He seized the license and two envelopes containing
vehicle registration and tax records.
At the suppression hearing, Detective Summers explained
that before he entered the trailer, he had limited information
about the identities of the suspect and the missing family
members. In particular, there was some confusion as to whether
the suspect’s name was Arturo Suarez or Arturo Juarez. Other
witnesses testified about the identifying information known
that night. Some suggested it was limited; some suggested
otherwise.
The Placer County trial court denied the motion to
suppress evidence seized during these warrantless entries. The
court concluded that Juarez abandoned his trailer because he
fled the crime scene, was located “several hundred miles away,”
and did not intend to return. Accordingly, there was no
requirement for a warrant. In addition, the court concluded that
Deputy Reed’s entry was a “legitimate protective sweep.” The
court found that “it was clear that there was no entry with the
purpose of searching, but rather [there was] a protective or a
body search . . . simply searching for people.” “It was a quick
walk-through,” and it was justified by “unquestionably” exigent
circumstances because “[t]here was a fresh report of a violent
assault” and the suspect and the family members, including
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children, were missing. The court concluded that when the
officers “noticed the rifles,” the rifles were appropriately seized
“as a matter of public safety since the defendant . . . from the
officer’s point of view could return to the residence and use the
weapons offensively.”
The court further concluded that Detective Summers’s
entry was justified by exigent circumstances because the
suspect and the family members remained missing. The court
found that “[t]estimony is, frankly, confused on the point at
which the defendant’s full identity was determined by the
police.” But the court found that “it was clear, at least in
Detective Summers’s mind, that he was seeking verification of
the identity” given that “he did not conduct a general search of
the premises but simply went to the property for the very
superficial walk-through” and seized items that “obviously
contained elements of identity.” As to this last part, the defense
renewed the motion to suppress on the ground that trial
testimony regarding what identifying information was known
that night affected the ruling. The Napa County trial court
concluded that there was no need for a reopened hearing
because the testimony “does nothing to undercut the ruling itself
that the defendant had abandoned” the trailer.
“ ‘ “In ruling on a motion to suppress, the trial court must
find the historical facts, select the rule of law, and apply it to the
facts in order to determine whether the law as applied has been
violated. We review the court’s resolution of the factual inquiry
under the deferential substantial-evidence standard. The ruling
on whether the applicable law applies to the facts is a mixed
question of law and fact that is subject to independent
review.” ’ ” (People v. Bryant, Smith and Wheeler, supra,
60 Cal.4th at p. 364.) “ ‘[W]e consider the correctness of the trial
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court’s ruling itself, not the correctness of the trial court’s
reasons for reaching its decision.’ ” (Id. at pp. 364–365.)
A warrantless entry into a home is a violation of the
Fourth Amendment unless an exception to the warrant
requirement exists. (See Florida v. Jardines (2013) 569 U.S. 1,
6 [“[W]hen it comes to the Fourth Amendment, the home is first
among equals.”].) “ ‘A long-recognized exception to the warrant
requirement exists when “exigent circumstances” make
necessary the conduct of a warrantless search. . . . “ ‘[E]xigent
circumstances’ means an emergency situation requiring swift
action to prevent imminent danger to life or serious damage to
property, or to forestall the imminent escape of a suspect or
destruction of evidence.” ’ ” (People v. Panah (2005)
35 Cal.4th 395, 465.)
We conclude that the trial court did not err in denying the
motion to suppress the rifles. There were exigent circumstances
justifying Deputy Reed’s entry. Juarez had recently attacked
Y.M. in his trailer. When law enforcement officers arrived at
the Parnell Ranch, Y.M. appeared “[v]ery upset,” bloody, and
“extremely swollen.” Juarez remained at large, and the family
members, including a three-year-old child and a five-year-old
child, were missing. Law enforcement officers thought that
Juarez might return to the trailer, and they did not know
whether the missing family members also might be in the
trailer. (See People v. Panah, supra, 35 Cal.4th at p. 466
[exigent circumstances justified entry into an apartment to look
for a missing child].) Once inside the trailer, Deputies Reed and
Walker conducted a “quick walk-through,” and Deputy Reed
properly seized the rifles to prevent Juarez from using them
“against [law enforcement] or anyone else.” (See Warden v.
Hayden (1967) 387 U.S. 294, 298 [exigencies justified police
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entering home, searching for the suspect and any weapons that
he had used or might use against them, and seizing weapons
found in a toilet flush tank and a clip of ammunition found
under a mattress]; People v. Ngaue (1992) 8 Cal.App.4th 896,
904 [seizure of gun “was justified for officer safety” while suspect
remained at large].)
Whether exigent circumstances justified Detective
Summers’s entry approximately two hours later to search for
identifying information presents a closer issue. But any error in
the trial court’s denial of the motion to suppress evidence seized
during that entry was harmless beyond a reasonable doubt. The
only evidence seized during that entry concerned the identities
of Juarez and José. There was no dispute as to their identities
and thus no prejudice as to this evidence. In light of our
conclusions, we need not decide whether Juarez abandoned his
trailer before the warrantless entries.
2. Search of Trailer on July 13
Detective Carrington sought a search warrant on July 13.
In her eight-page affidavit, she said she had spoken to Detective
Summers and Detective Stewart. She learned that Juarez lived
in a trailer and that he had attacked Y.M., dragged her inside,
restrained her with duct tape and twine or rope, and raped her.
Y.M.’s injuries “were consistent with choking, beating, and
sexual assault.” Y.M.’s husband, brother-in-law, and children
were missing after having last been with Juarez. When deputies
responded to her 911 call, they searched Juarez’s trailer and
seized two rifles. Detective Summers also searched it; he found
José’s identification in a checkbook and saw duct tape, twine or
rope, scissors, aluminum foil, ammunition, and a tennis shoe in
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the trailer. Judge Kearney issued the warrant. Detective
Carrington searched the trailer, its screened porch, and yard.
The trial court denied the motion to suppress evidence
seized pursuant to this warrant. The court again concluded that
the trailer had been abandoned. In addition, the court
concluded that there was probable cause to search it. The court
found that the affidavit contained “obviously reliable police
information,” which came largely from Detective Carrington
speaking with Detective Summers. The court further concluded,
“even if you were to excise all of the information obtained by
Detective Summers, there’s enough other information in the
warrant that would allow it to stand on its own merits.”
Moreover, even if there was “some technical defect of the
warrant,” Detective Carrington acted in good faith. Finally, the
court concluded that the warrant encompassed the yard
surrounding the trailer because it was “clearly part of the
curtilage of the property,” but “[e]ven if there was some question
regarding the search of the yard, virtually all of the evidence
was in plain view and certainly there was no reasonable
expectation of privacy being out in the yard and subject to view
by anyone.”
On appeal, Juarez contends that the search of his trailer
was unlawful because he did not abandon the trailer and the
affidavit relied on hearsay and information obtained during
earlier entries. He also contends that, even if valid, the warrant
did not authorize a search of the yard or specify with
particularity the items to be seized from the yard.
We conclude that the affidavit established probable cause.
The description of Y.M.’s attack in the trailer, together with her
injuries, made “it substantially probable that there was specific
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property lawfully subject to seizure presently located in” the
trailer. (People v. Scott (2011) 52 Cal.4th 452, 483.) The fact
that Detective Carrington learned this information after
speaking to Detective Summers and Detective Stewart does not
eviscerate the probable cause. (Cf. United States v. Ventresca
(1965) 380 U.S. 102, 108 [“Thus hearsay may be the basis for
issuance of the warrant ‘so long as there [is] a substantial basis
for crediting the hearsay.’ ”]; People v. Gonzales (1990)
51 Cal.3d 1179, 1206, fn. 3 [“a fellow officer’s observations,
reported by the affiant as hearsay, are competent and
presumptively reliable”].) Nor was it improper to include in the
affidavit information about Deputy Reed’s warrantless entry
into the trailer. (Cf. People v. Redd (2010) 48 Cal.4th 691, 722
[affidavit can include information obtained during prior, lawful
warrantless searches].) And even if the information about
Detective Summers’s warrantless entry was excised from the
affidavit, it would still establish probable cause given the
description of Y.M.’s attack in the trailer, together with her
injuries. (See People v. Williams (1988) 45 Cal.3d 1268, 1303
[“It is the general rule that if probable cause clearly remains
after tainted information is excised from the affidavit, a warrant
is still valid.”].)
We further conclude that evidence was properly seized
from the yard, an area surrounding the trailer and enclosed by
a wire fence. The warrant authorized a search of “the premises
located at and described as: [¶] A silver single wide Spartan
trailer license AB8476 wit [sic] a wooden screened porch on the
Parnell Ranch” at an address on Mount Vernon Road in Auburn,
County of Placer, California. Because the warrant authorized a
search of this residence, it “also authorize[d] without so stating
the search of the residence’s curtilage.” (U.S. v. Gorman (9th
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Cir. 1996) 104 F.3d 272, 273; see also People v. Smith (1994)
21 Cal.App.4th 942, 950 [“ ‘[A] warrant to search “premises”
located at a particular address is sufficient to support the search
of outbuildings and appurtenances in addition to the main
building when the various places searched are part of a single
integral unit.’ ”]; LaFave, Search and Seizure (5th ed. 2018)
§ 4.10(a), pp. 932–934.) In any event, several of the items in the
yard were in plain view as Detective Carrington approached the
trailer to execute the warrant and accordingly could be seized.
(See People v. Carrington, supra, 47 Cal.4th at p. 166.)
We thus conclude that the trial court did not err in denying
the motion to suppress evidence seized pursuant to the warrant.
In light of our conclusion, we again need not decide whether
Juarez abandoned his trailer before this evidence was seized.
B. Admission of Confessions
Juarez contends that his confession on July 15 and all
subsequent statements should have been suppressed because he
was not advised of his rights under Miranda v. Arizona (1966)
384 U.S. 436 (Miranda) and the Vienna Convention on Consular
Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820
(Vienna Convention) and because his statements were
involuntary.
1. Background
Juarez was arrested on July 15, 1998, around 8:40 p.m.
He was “[v]ery calm, very quiet, [and] very cooperative.” Around
9:15 p.m., Detective Robbins and FBI Special Agent Stevens,
who spoke Spanish, drove him to the Long Beach police station.
During the drive, Juarez asked Agent Stevens what he was
being arrested for or something to that effect, and she told him
that he was being arrested for the murder of four people and the
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rape of a female. He said he did not rape the woman. She said
those were serious charges; Juarez did not respond. He then
asked how they found him or something to that effect, and she
said that “he placed a telephone call.” At some point, he
commented that she spoke Spanish and that he was going to
Mexico. She asked where he was from in Mexico; when he told
her, she said her family was from Mexico. They arrived in Long
Beach around 9:20 or 9:30 p.m.
Around 10:10 p.m., in an interview room at the Long
Beach police station, Juarez asked what were the charges
against him, and Agent Stevens told him that he was being
charged with four counts of murder and one count of rape. He
said he did not rape the female. She asked whether he was
willing to talk to them about the events, and he said the
homicides or the murders were true. He said that he had seen
the news and that the homicides were true but he did not rape
the woman. She asked whether he was willing to talk to them
about the events, and he said he was.
She said they needed to advise him of his rights and asked
if he read in Spanish; he said he did. She gave him an
advisement form, and he read it. She then read it to him and,
after each line, asked whether he understood or had questions;
he said he understood and did not have questions. She asked if
he was willing to give up his rights and speak to them, and he
signed the form without hesitation.
Translated into English, the form, titled “Consideration of
Civil Rights,” stated: “I, Arturo Juarez Suarez, have been
informed about my civil rights as follows.” “I have the right to
remain silent.” “Anything [I] say will be used and can be used
against [me] in a court of law.” “I have a right to speak to an
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attorney and have him present with me while being
interrogated.” “If I can’t pay to contract an attorney, one will be
assigned to represent me before the interrogation, if I desire
one.” “I understand every one of these rights that have been
explained before, and I wish to discuss the case with the officer.”
“Any declarations that I make at this moment are free and
voluntary without any promises of indulgence, severity or
compensation.”
After Juarez signed the form, Detective Robbins and
Agent Stevens questioned him. Detective Robbins asked most
of the questions, while Agent Stevens acted as an interpreter.
Juarez said that during an argument, he shot and killed his two
brothers-in-law and put them in a hole; he tied up and beat the
woman; and he beat the two children, put them in the hole, and
threw dirt on them. He was “[v]ery calm, quiet, cooperative,
[and] speaking very clearly.” He did not indicate that he wanted
a lawyer, did not want to talk, or did not understand the
questions.
The interrogation ended around 11:20 p.m. Afterward,
Agent Stevens asked whether he was cold because she was
“freezing”; when he indicated he was, she gave him a shirt. She
did not recall providing him with anything to drink or eat, but
believed they might have offered him something to drink, which
he declined. He did not indicate that he was hungry or express
any other discomfort.
Around 1:00 a.m., Detective Bennett and Sergeant
McDonald transported Juarez to Placer County by plane. He
was “[v]ery calm, extremely cooperative [and] [m]aybe a little
sleepy.” He slept for “a good part” of the flight but did not eat.
Upon arrival, he was booked. Sergeant McDonald did not know
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whether he ate during booking but testified that there would
have been food available. Sergeant McDonald also recalled
telling him in English that they would talk later that day, to
which he said okay or something to that effect.
Around 11:00 a.m. on July 16, Detective Bennett and
Sergeant McDonald interrogated Juarez with the assistance of
an interpreter. The interrogation was videotaped and lasted
approximately two hours. During the interrogation, he was
calm, and he was offered a soda and pizza.
At the beginning of the interrogation, Sergeant McDonald
showed Juarez the form he had signed the day before and asked
whether he recalled and understood it and whether they could
talk. Juarez nodded his head as Sergeant McDonald asked
these questions. He subsequently admitted that he shot José
and Juan during an argument; that he beat and tied Y.M. and
touched her vagina; and that he hit the children and put them
in the hole.
Near the end of this interrogation, Sergeant McDonald
asked Juarez to confirm that he remembered the form he had
previously signed regarding his rights, which he did. Sergeant
McDonald asked him to describe his rights, and Juarez replied,
“That I don’t understand anything.” Sergeant McDonald
responded that Juarez had read, signed, and said he understood
the form. Juarez replied, “I cannot understand what rights I can
have.” Sergeant McDonald then asked whether Juarez knew,
when they began their conversation, that he had the right to
remain silent; Juarez replied, “Yes.” Sergeant McDonald asked
whether Juarez understood, when they began their
conversation, that he had the right to talk to an attorney; Juarez
replied, “Yes.” Sergeant McDonald asked whether Juarez
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understood that he had the right to talk to an attorney before he
talked to them; Juarez replied, “Yes.” Sergeant McDonald asked
whether Juarez decided to talk to them; Juarez replied, “Yes.”
Sergeant McDonald asked, “Because you wanted to and you
didn’t want to talk to an attorney?” and Juarez replied, “What
am I going to gain by talking to a lawyer?” Sergeant McDonald
said, “Okay. Again, there’s nothing else you want to ask?”
Juarez did not reply. After Detective Bennett asked about how
the family can heal from this, Sergeant McDonald asked why
Juarez decided to talk “in Long Beach” and “today.” Juarez said
that he would have felt “very bad” if he did not talk. Juarez then
asked when he would go to court. The interpreter responded to
him. After receiving permission to do so, the interpreter also
briefly explained to him what to expect for the first court
appearance. The interpreter then said something about his not
understanding the justice system, to which Detective Bennett
said, “We still don’t.”
The next morning, Sergeant McDonald and other law
enforcement officials took Juarez on a walk-through at the
Parnell Ranch, which lasted for about 15 or 20 minutes. The
walk-through was taped, although only some sound was
discernible. Juarez was shackled, but he appeared cooperative
and relaxed. A sheriff’s department employee, Virginia Ferral,
spoke Spanish and acted as an interpreter, but she was not a
certified interpreter and did not translate her conversations
verbatim.
Ferral testified that she asked Juarez, “Do you remember
the rights that were discussed and the right to an attorney?” He
said, “Yes.” He then asked, “Can I have an attorney here?” She
testified that Sergeant McDonald told her to say words to the
effect of “it’s up to you,” and she told Juarez “if you want.” Ferral
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testified that Juarez then expressed concern about his safety in
jail because some inmates wanted to kill him. The court found
that “[i]t is unclear from the record which phrase was said or
translated to [him], but it’s clear that [he] asked for nothing
further regarding an attorney but turned to security concerns.”
Ferral testified that in response to his question about
security, she told him she understood but wanted to know
whether he would do this walk-through. She also told him that
they and the jail staff were obligated to protect him, that they
could move him to another place, and that they would talk to the
person in charge of the jail. The group then proceeded with the
walk-through.
That afternoon, Juarez was arraigned, and the prosecutor
advised him of his rights under the Vienna Convention. Juarez
said, “What for?” After conferring with him, defense counsel
said, “I believe at this time we would like to wait. [¶] We would
not request any such notification right now.”
2. Asserted Violation of Miranda and Voluntariness
“ ‘ “As a prophylactic safeguard to protect a suspect’s Fifth
Amendment privilege against self-incrimination, the United
States Supreme Court, in Miranda, required law enforcement
agencies to advise a suspect, before any custodial law
enforcement questioning, that ‘he has the right to remain silent,
that anything he says can be used against him in a court of law,
that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.” ’ ” (People v. McCurdy
(2014) 59 Cal.4th 1063, 1085–1086.) “ ‘ “Critically, however, a
suspect can waive these rights.” [Citation.]’ [Citation.] ‘The
waiver must be “voluntary in the sense that it was the product
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of a free and deliberate choice rather than intimidation,
coercion, or deception” [citation], and knowing in the sense that
it was “made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it.” ’ ” (Id. at p. 1086.)
“ ‘The Fourteenth Amendment of the federal Constitution
and article I, section 7 of the California Constitution make
“inadmissible any involuntary statement obtained by a law
enforcement officer from a criminal suspect by coercion.” ’
[Citation.] The prosecution must prove by a preponderance of
the evidence that a defendant freely and voluntarily gave police
statements before the statements can be admitted. [Citation.]
‘ “Voluntariness does not turn on any one fact, no matter how
apparently significant, but rather on the ‘totality of [the]
circumstances.’ ” ’ [Citation.] The test considers several factors,
including any element of police coercion, the length of the
interrogation and its location and continuity, and the
defendant’s maturity, education, and physical and mental
health. [Citation.] The determinative question ‘ “is whether
defendant’s choice to confess was not ‘essentially free’ because
his will was overborne.” ’ ” (People v. Peoples (2016)
62 Cal.4th 718, 740.)
“On appeal, we review independently the trial court’s legal
determinations of whether a defendant’s statements were
voluntary [citation], whether his Miranda waivers were
knowingly, intelligently, and voluntarily made [citation], and
whether his later actions constituted an invocation of his
[rights] [citation]. We evaluate the trial court’s factual findings
regarding the circumstances surrounding the defendant’s
statements and waivers, and ‘ “accept the trial court’s resolution
of disputed facts and inferences, and its evaluations of
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credibility, if supported by substantial evidence.” ’ ” (People v.
Rundle (2008) 43 Cal.4th 76, 115.) When “an interview is
recorded, the facts surrounding the admission or confession are
undisputed and we may apply independent review.” (People v.
Leon (2020) 8 Cal.5th 831, 843.)
a. Confession in Long Beach on July 15
Juarez claims that his confession at the Long Beach police
station should have been suppressed. The trial court concluded
that he was advised of his rights, “appeared to understand his
rights,” and confessed “freely and voluntarily” after a “full and
knowing waiver of his rights.” The court found that “some of the
words [in the advisement form] could have been better,” but the
discrepancies were “[a]t best” characterized as “insignificant”
and “the substance of the Miranda rights were conveyed to [him]
orally and in writing.” The court also found, as to all of the
interviews, that he was “calm and cooperative” and “readily
appeared willing to talk to the police and to fully explain the
circumstances of the crime”; there was no evidence “of
discomfort or stress” or that “he was forced to sign anything or
to waive his rights”; and all of the defense’s arguments about his
being “cold, tired or hungry are purely speculative. No evidence
suggests that [he] actually was influenced by these factors.”
We conclude that Juarez was adequately advised of his
rights. The advisement form in question states that he has the
right to remain silent, anything he says can and will be used
against him in a court of law, he has the right to speak with an
attorney and the right to have the attorney present while being
interrogated, and if he cannot afford an attorney, one will be
assigned for him before the interrogation if he so desires. Juarez
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read the form, Agent Stevens read it to him, and Juarez said he
understood and did not have any questions.
Juarez argues that the form was inadequate and
misleading. An interpreter, Santiago Flores, testified that the
word “civil” in the form’s title did not encompass criminal; the
word “silencio” in the first sentence could mean “to be still [or]
quiet”; the word “consultar,” which means “to seek advice,”
should have been used to explain the right to an attorney, rather
than “hablar,” which means “to talk, to carry on conversation”;
and the word “discutir” in the fifth sentence could mean “to
discuss” or “to argue or debate.” The last sentence —
“[c]ualquiera de las declaraciones que yo haga en este momento
son libres y voluntarias, con ninguna promesa de indulgencia
(severidad) o recompensa” — also could be interpreted in
multiple ways. When asked to translate this sentence, Flores
translated it as “[a]ny declarations that I make at this moment
are free and voluntary without any promises of indulgence,
severity or compensation.” When defense counsel subsequently
asked whether this sentence has more than one translation,
Flores testified, “No, I don’t believe so.” Following up, defense
counsel asked whether this sentence could also mean “I can
speak freely without any consequences as a result of my
providing information.” Flores responded that “[i]t could” and
elaborated, “If I — ‘whatever declaration I make would be made
without any punishment.’ It could mean that. ‘I’m free to talk,
but I won’t be punished for it.’ ” When the prosecutor
subsequently asked Flores to translate this sentence again,
Flores translated it as “[a]ny declarations that you are making
at this moment are free and voluntary with no promise of
indulgence, leniency, severity or compensation.” Finally, the
signature line stated only “signature.”
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The high court has “never insisted that Miranda warnings
be given in the exact form described in that decision.”
(Duckworth v. Eagan (1989) 492 U.S. 195, 202.) Rather, “[t]he
inquiry is simply whether the warnings reasonably ‘conve[y] to
[a suspect] his rights as required by Miranda.’ ” (Id. at p. 203.)
In Duckworth, the high court concluded that the warnings at
issue “touched all of the bases required by Miranda. The police
told respondent that he had the right to remain silent, that
anything he said could be used against him in court, that he had
the right to speak to an attorney before and during questioning,
that he had ‘this right to the advice and presence of a lawyer
even if [he could] not afford to hire one,’ and that he had the
‘right to stop answering at any time until [he] talked to a
lawyer.’ ” (Ibid.)
The advisement form in this case likewise touches all of
the bases required by Miranda. It states that Juarez has the
right to remain silent, anything he says can and will be used
against him in a court of law, he has the right to speak with an
attorney and the right to have the attorney present while being
interrogated, and if he cannot afford an attorney, one will be
assigned for him before the interrogation if he so desires. The
trial court found that “some of the words [in the advisement
form] could have been better,” but the discrepancies were “[a]t
best” characterized as “insignificant” and “the substance of the
Miranda rights were conveyed to [him] orally and in writing.”
Although we agree that some of the words in the advisement
form could have been more precise, “we are not persuaded . . .
that the language was so ambiguous or confusing” that it did not
reasonably convey his rights. (People v. Wash (1993)
6 Cal.4th 215, 236; cf. U.S. v. Botello-Rosales (9th Cir. 2013)
728 F.3d 865, 867 [Miranda warnings failed to reasonably
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convey the defendant’s right to appointed counsel because the
warnings suggested that the right to appointed counsel would
be “contingent on the approval of a request or on the lawyer’s
availability” and did not make clear that appointed counsel
would be “without cost”].)
We further conclude that, after being advised of his rights,
Juarez validly waived them and voluntarily confessed. “To
establish a valid Miranda waiver, the prosecution bears the
burden of establishing by a preponderance of the evidence that
the waiver was knowing, intelligent, and voluntary under the
totality of the circumstances of the interrogation.” (People v.
Linton (2013) 56 Cal.4th 1146, 1171.) In assessing whether the
waiver was knowing and intelligent, relevant circumstances
include “ ‘(i) the defendant’s mental capacity; (ii) whether the
defendant signed a written waiver; (iii) whether the defendant
was advised in his native tongue or had a translator;
(iv) whether the defendant appeared to understand his rights;
(v) whether the defendant’s rights were individually and
repeatedly explained to him; and (vi) whether the defendant had
prior experience with the criminal justice system.” (U.S. v. Price
(9th Cir. 2019) 921 F.3d 777, 792.)
Juarez read the advisement form written in Spanish and
Agent Stevens read it to him, asking him after each line whether
he understood or had any questions. Although Juarez points out
on appeal that he had spent his life “working in fields or
pastures,” there is no indication that he was incapable of
understanding his rights. Having reviewed the advisement
form, he said he understood and did not have any questions. He
signed the form without hesitation and then actively engaged in
the interrogation, providing an extensive account of the events.
Agent Stevens acted as an interpreter during the interrogation.
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She previously had translated between Spanish and English in
her role as a law enforcement agent. She had learned Spanish
from her mother, who was Mexican. Although she did not know
whether there was a different dialect used in the region of
Mexico where Juarez had lived, she testified that he spoke “very
clearly,” she “[n]ever” had any trouble understanding his
responses, and at no point did he indicate that he did not
understand the questions. Nor did he indicate that he did not
want to talk. Rather, the trial court found that he “appeared to
understand his rights” and “readily appeared willing to talk to
the police and to fully explain the circumstances of the crime.”
Nor do the circumstances he emphasizes amount to
coercion. There was no suggestion of “ ‘physical intimidation,’ ”
“ ‘coercive tactics,’ ” promises, or threats. (People v. Spencer
(2018) 5 Cal.5th 642, 672; see id. at pp. 672–674.) When he said
he was cold, he was given a shirt. He did not indicate that he
was hungry or otherwise uncomfortable. Nor did he indicate
that his nervousness or sleeplessness affected his ability to
understand his rights or the questions. Instead, the trial court
found that he was “calm and cooperative,” and there was no
evidence “of discomfort or stress” or that “he was forced to sign
anything or to waive his rights.” Finally, the fact that he lacked
experience with the criminal justice system did not invalidate
his waiver or render his subsequent statements involuntary in
the circumstances here. (See U.S. v. Bautista-Avila (9th Cir.
1993) 6 F.3d 1360, 1364–1366 [finding valid waiver despite the
defendant’s lack of experience with the justice system].)
b. Confession in Placer County on July 16
Juarez next claims that his confession in Placer County
should have been suppressed. “Where a subsequent
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interrogation is ‘ “reasonably contemporaneous” ’ with the prior
waiver, and the prior waiver was ‘knowing and intelligent,’
police need not undertake a Miranda readvisement. [Citation.]
In determining whether a subsequent interrogation is
reasonably contemporaneous, we consider the totality of the
circumstances. Relevant considerations include: ‘1) the amount
of time that has passed since the initial waiver; 2) any change
in the identity of the interrogator or location of the
interrogation; 3) an official reminder of the prior advisement;
4) the suspect’s sophistication or past experience with law
enforcement; and 5) further indicia that the defendant
subjectively understands and waives his rights.’ ” (People v.
Spencer, supra, 5 Cal.5th at p. 668.)
The trial court concluded that the admonition provided
approximately 14 hours earlier in the Long Beach interrogation
was “reasonably contemporaneous with [the Placer County]
interview.” The court found that at the beginning of the Placer
County interrogation, Juarez “indicated that he recalled the
rights given earlier; that he understood them, and that he
agreed to talk.” At the end of the interrogation, Sergeant
McDonald again discussed with Juarez the advisement form
that Juarez had signed in Long Beach. The court found that
when Sergeant McDonald asked Juarez whether he understood
his rights, Juarez “was unable to articulate his rights generally,
but as to each individual right, [he] replied that he understood
that he had the right to remain silent and the right to an
attorney.” When Sergeant McDonald asked Juarez whether he
decided to talk to the officers because he wanted to do so and did
not want to talk to an attorney, Juarez responded, “What am I
going to gain by talking to a lawyer?” As to this response, the
court found that it “indicates at least an understanding that the
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right to an attorney exists, but [Juarez] made a conscious
decision, perhaps unwise, not to exercise it.”
Our review of the record confirms that approximately 13
or 14 hours elapsed between Juarez’s waiver in Long Beach and
his interrogation in Placer County, and he remained in custody
during that time. At the beginning of the Placer County
interrogation, Sergeant McDonald showed Juarez the
advisement form he signed in Long Beach, and Juarez indicated
that he recalled and understood it. The Placer County
interrogation was conducted in a different location by different
law enforcement officials, and Juarez lacked experience with the
justice system. But considering the totality of the
circumstances, we conclude that the Placer County
interrogation was reasonably contemporaneous with the earlier
advisement and waiver in Long Beach, and no Miranda
readvisement was necessary at the outset of the Placer County
interrogation. (Cf. People v. Pearson (2012) 53 Cal.4th 306, 317
[interview was reasonably contemporaneous with advisement
and waivers that occurred 27 hours earlier].)
Juarez nevertheless contends that his statements made
during the initial Long Beach interrogation and the subsequent
Placer County interrogation should have been suppressed
because he did not understand his rights. In support of his
argument, he relies on his statements at the end of the Placer
County interrogation indicating that he did not understand his
rights. Those statements were made approximately 14 hours
after the initial Long Beach interrogation, during which he told
Agent Stevens that he understood his rights, he signed the
advisement form, and he confessed to the murders. Juarez
argues: “What are we to believe: a self-serving statement about
the past [interrogation in Long Beach by Agent Stevens] that
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was not recorded, or a videotaped statement of [Juarez during
the interrogation in Placer County]?”
But the trial court found, after evaluating Agent Stevens’s
credibility, that in the Long Beach interrogation, “[Juarez] told
Agent Stevens that he did understand his rights,” “he signed the
form,” he “had no questions,” and he “appeared to understand
his rights” when he waived them in Long Beach. We accept the
trial court’s evaluations of credibility where, as here, substantial
evidence supports them. In light of these credibility findings
and the totality of the circumstances surrounding the
interrogation in Long Beach, we have concluded that Juarez
validly waived his rights before that interrogation. (See
pt. IV.B.2.a., ante.)
As to the subsequent Placer County interrogation, Juarez
indicated at the outset of that interrogation that he recalled and
understood the advisement form he had signed in Long Beach.
He then proceeded to confess again to the murders. It is true
that at the end of the approximately two-hour interrogation,
Sergeant McDonald asked Juarez to describe his rights, and
Juarez said, “That I don’t understand anything” and “I cannot
understand what rights I can have.” But Sergeant McDonald
then followed up by asking Juarez to confirm that at the time he
began the interrogation in Placer County, he understood he had
the right to remain silent and the right to talk to an attorney
stated on the form he had signed in Long Beach. For each right,
Juarez did so confirm. Then, when Sergeant McDonald asked
whether Juarez decided to talk to the officers because he wanted
to do so and did not want to talk to an attorney, Juarez said,
“What am I going to gain by talking to a lawyer?” Although this
remark suggests that Juarez did not appreciate the value of
speaking to an attorney, we conclude that this remark,
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considered in its context, is insufficient to call into question the
validity of his earlier waiver. The videotape of the interrogation
shows that the brief remark was not a genuine question
intended to elicit an explanation of the possible benefit of
speaking to an attorney. The remark occurred in the course of
Sergeant McDonald wrapping up the interrogation, and it is
evident from Juarez’s tone, body language, and lack of further
questions that he was not seeking or expecting to receive
information about what he could gain from talking to an
attorney. Instead, the remark simply appeared to convey
Juarez’s perception that it would be futile to consult a lawyer in
light of his predicament. Even if this perception was “unwise,”
as the trial court suggested, it fails to show that Juarez did not
understand he had the right to speak with a lawyer.
Thus, considering Juarez’s statements at the end of the
Placer County interrogation in context, we do not find those
statements to alter our conclusions that he validly waived his
rights before the Long Beach interrogation and that no
readvisement was required before the Placer County
interrogation.
We additionally conclude that his confession was
voluntary. In arguing to the contrary, Juarez emphasizes many
of the same circumstances discussed above and adds that he was
tired and weak after flying to Placer County. He asserts that he
got little sleep and no food from his arrest around 8:40 p.m. on
July 15 until his interrogation during the morning of July 16 in
Placer County. But the record contains no indication that
Juarez complained of hunger or weakness during the Placer
County interrogation, or that any coercion rendered Juarez’s
statements involuntary.
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c. Walk-through of the Parnell Ranch on July 17
When Juarez moved to suppress his statements made
during the walk-through as involuntary and obtained in
violation of his rights, the trial court denied his motion. But the
court subsequently excluded the videotape of the walk-through
as unduly prejudicial. Because there was no possible prejudice
at trial stemming from his walk-through at the ranch, we need
not address this issue.
3. Asserted Violation of the Vienna Convention
Juarez further argues that the police did not advise him
in a timely manner of his right to have his consulate notified of
his arrest, in violation of Article 36 of the Vienna Convention
and Penal Code section 834c. He argues that the trial court
should have suppressed his statements, found the violation
intentional, and considered it in the voluntariness inquiry.
When Juarez presented this claim in the trial court, the
court concluded that he was not advised in a timely fashion of
his right to have his consulate notified of his arrest under the
Vienna Convention. (See Vienna Convention, supra, art. 36,
par. 1(b), at p. 101 [requiring law enforcement officers to inform
arrested foreign nationals, “without delay,” that they have the
right to have their consulate notified of their arrest].) The court
found that the violation was negligent, not intentional, based on
statements by law enforcement officers and the district attorney
that they did not know of the Vienna Convention, despite
opportunities to learn of it. The court further concluded that the
violation was not of constitutional dimension. The court
declined to suppress his statements or preclude the prosecutor
from seeking the death penalty.
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After Juarez’s trial, “the United States Supreme Court [in
Sanchez-Llamas v. Oregon (2006) 548 U.S. 331] made it clear
that an officer’s failure to notify a suspect of his or her consular
rights does not, in itself, render a confession inadmissible.”
(People v. Enraca (2012) 53 Cal.4th 735, 756.) The California
Legislature also enacted Penal Code section 834c, effective in
2000, to address Vienna Convention requirements. (Stats. 1999,
ch. 268, § 1, pp. 2338–2341.) The statute requires the police,
upon arresting or detaining a known or suspected foreign
national “for more than two hours,” to advise the foreign
national of his or her consular rights but does not specify a
remedy for violations. (§ 834c, subd. (a)(1).)
We find no violation of section 834c since that statute was
not effective until after Juarez’s arrest. But we proceed on the
assumption that Juarez’s consular rights were violated by law
enforcement’s failure to timely advise him of his right to have
his consulate notified of his arrest under the Vienna
Convention.
As the high court held in Sanchez-Llamas, such a violation
does not, by itself, require suppression. “Article 36 [of the
Vienna Convention] has nothing whatsoever to do with . . .
interrogations. Indeed, Article 36 does not guarantee
defendants any assistance at all. The provision secures only a
right of foreign nationals to have their consulate informed of
their arrest or detention — not to have their consulate
intervene, or to have law enforcement authorities cease their
investigation pending any such notice or intervention. In most
circumstances, there is likely to be little connection between an
Article 36 violation and evidence or statements obtained by
police.” (Sanchez-Llamas v. Oregon, supra, 548 U.S. at p. 349;
accord, People v. Vargas (July 13, 2020, S101247) __ Cal.5th __
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[2020 Cal. Lexis 4311, at pp. *65–67] [reversal not warranted
“[d]espite the ‘technical violation’ of the Vienna Convention”].)
However, “ ‘[a] defendant can raise an Article 36 claim as part
of a broader challenge to the voluntariness of his statements to
police.’ ” (People v. Enraca, supra, 53 Cal.4th at p. 757, quoting
Sanchez-Llamas, at p. 331; accord, People v. Sanchez (2019)
7 Cal.5th 14, 51.)
Juarez does so here. Contrary to his argument, however,
the record supports the factual finding that the violation was
not intentional. Agent Stevens, Detective Robbins, Sergeant
McDonald, and Detective Bennett each testified to being
unaware of the Vienna Convention at the time of Juarez’s
arrest. The district attorney also testified that he did not
become aware of the advisement requirement under the Vienna
Convention until around Juarez’s arraignment, at which time
Juarez was advised of his rights under the Vienna Convention.
The trial court “accept[ed] the statements of the law
enforcement officers” and “the district attorney” that they “did
not know of the Vienna Convention,” despite opportunities to
learn of it. The trial court thus found that the violation of the
Vienna Convention was negligent, not intentional. The trial
court made that finding after assessing the credibility of
numerous witnesses who testified about the circumstances
surrounding the violation, and substantial evidence supports
the finding.
In addition, Juarez argues that the trial court failed to
consider the violation when evaluating the validity of his waiver
and the voluntariness of his confessions. As noted, the trial
court found no violation of Juarez’s constitutional rights due to
the Vienna Convention violation. The court then found “from
the totality of the circumstances” that Juarez’s statements were
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“freely and voluntarily given after a sufficient advisement of his
constitutional rights.” Although the court did not expressly
refer to the Vienna Convention violation in concluding that he
validly waived his rights and voluntarily confessed, the court
considered “the totality of the circumstances,” and on this
record, we decline to find error. In any event, we review
independently whether Juarez validly waived his rights and
voluntarily confessed. (See People v. Rundle, supra, 43 Cal.4th
at p. 115.)
We find that Juarez has not established a relation
between his lack of consular notice and his confessions. (See
People v. Leon, supra, 8 Cal.5th at p. 846.) Juarez has not shown
that had he been advised of his consular rights earlier, he would
have requested that the consulate be notified. Even after he was
advised of his rights at his arraignment, he did not request such
notification. It is true that defense counsel said she had “had
numerous contacts” with the consulate on his behalf. And he
submitted a declaration — which the trial court deemed not
competent evidence in the absence of cross-examination —
stating, among other things, “Had I known I could talk to
someone from the Mexican Consulate, before speaking with the
officers, I would have done so.” But his statement was largely
“unpersuasive in view of the other evidence, because it was
‘conclusory, self-serving, and not subject to cross-examination.’ ”
(U.S. v. Amano (9th Cir. 2000) 229 F.3d 801, 805.) As the trial
court found, Juarez “readily appeared willing to talk to the
police and to fully explain the circumstances of the crime.” We
conclude that in the totality of the circumstances, the failure to
timely advise him of his consular rights did not overcome his
will and render his waiver invalid or his confessions
involuntary. There was no error in admitting his confessions.
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C. CALJIC No. 2.28
The Placer County District Attorney’s Office retained Dr.
Frank Dougherty, a forensic psychologist, to observe the July
16, 1998 interrogation live by means of a closed circuit television
transmission. Dr. Dougherty “discussed various aspects of
possible mental health defenses and issues regarding [Juarez]
. . . and consulted with Deputy District Attorney Thomas
Beattie and various sheriff’s deputies regarding interview
techniques and anticipated prosecutorial issues related to
[Juarez’s] actual or potentially alleged mental health.” Dr.
Dougherty believed he took “some contemporaneous notes,” but
he was unable to locate any notes after a “diligent” search. He
did not provide any consultation on this case after July 16. The
defense learned of his existence in October 2000, contacted him
in December 2000, and interviewed him. The prosecutor
subsequently represented that Dr. Dougherty said, “It doesn’t
look like there’s anything wrong with him,” but the prosecutor
was not aware of any notes taken by Dr. Dougherty.
The defense asked the trial court to instruct the jury
pursuant to CALJIC No. 2.28, which explained the rules of
discovery and permitted the jury to consider failures to timely
disclose evidence. The court denied the request. The court
reasoned that “it’s not clear that this witness had notes,
although he may have.” Even if he did, “it would be entirely
speculative to assume that those notes would include anything
that would aid the jury because those notes would only be about
things that the jury can view through the videotape anyway, and
thus any conjecture that this jury might enter into as to how a
psychologist watching the interview or anybody else watching
the interview would give additional useful information would be
just that: conjecture.” Juarez contends that the trial court
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erred, depriving him of due process and a fair, reliable, and
impartial determination of his guilt and sentence.
Section 1054.1 requires the prosecutor to disclose to the
defendant, among other things, the names, addresses, and
“[r]elevant written or recorded statements of witnesses,” and
“reports of the statements of witnesses whom the prosecution
intends to call at trial, including any reports or statements of
experts made in conjunction with the case.” (Id., subds. (a), (f).)
When a party fails to comply with its discovery obligations, the
trial court may, among other things, “advise the jury of any
failure or refusal to disclose and of any untimely disclosure.”
(Id., subd. (b).) Here, it was not clear that the prosecutor failed
to comply with discovery obligations. The prosecutor never
intended to call and did not call Dr. Dougherty as a witness.
Although Dr. Dougherty “may have” taken notes, the trial court
observed, “it’s not clear” that he did. Under these
circumstances, the prosecutor’s asserted failure to comply with
discovery obligations and the trial court’s refusal to instruct the
jury as requested did not deprive Juarez of due process or a fair,
reliable, and impartial determination of his guilt and sentence.
The July 16 interrogation was videotaped and played for the
jury, and as the trial court reasoned, it is mere “conjecture” that
any notes taken by Dr. Dougherty would have provided
“additional useful information” to aid the jury’s own viewing of
the videotaped interrogation.
D. Sufficiency of Evidence for Felony Murders of
José and Juan
The jury was instructed that it could convict Juarez of the
first degree murders of José and Juan based on the theories of
premeditation and deliberation, lying in wait, or felony murder.
The jury found him guilty of the first degree murders.
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Juarez claims that there was insufficient evidence of
felony murder, i.e., that he killed José and Juan during the
commission of a robbery. Juarez argues that the trial court
erred in instructing the jury as to that theory and in declining
to provide a requested instruction concerning “independent
felonious intent.” He emphasizes that when he moved pursuant
to section 1118.1 for the entry of a judgment of acquittal on the
felony-murder special circumstances regarding José and Juan,
the court granted his motion. In considering his section 1118.1
motion, the court indicated that it might grant the motion
because “what was going on here was a robbery in the course of
a murder, not a murder in the course of a robbery,” and “there
is such a solid basis in the evidence for the multiple murder and
lying in wait special circumstances, that it is a neater, cleaner,
more understandable way to present to the jury the only issues
that are really going to make much difference anyway.” The
prosecutor did not object to the motion, and the court granted it.
Preliminarily, we reject Juarez’s contention that the trial
court erred in declining to provide a requested instruction
concerning “independent felonious intent.” After the prosecutor
argued against giving the instruction, the court questioned
defense counsel about it, asking whether a killing that occurred
during the commission of a robbery could support a felony
murder conviction even if the robbery was committed for
purposes of concealing the killing. Defense counsel essentially
withdrew the request by responding, “I have to concede at this
point in time that Mr. — the prosecution is correct, and I was
thinking of something else, and unfortunately, the case law does
not support my thought process.” The court then denied the
request.
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Even assuming the issue was preserved for review, we find
no error. The jury was instructed that for felony murder, the
unlawful killing must occur during the commission or attempted
commission or as a direct causal result of the crime of robbery
and the perpetrator must have had the specific intent to commit
that crime. The jury was also instructed that for the crime of
robbery, “the perpetrator must have formed the specific intent
to permanently deprive an owner of his property before or at the
time that the act of taking the property occurred” and “before or
at the time of the application of force or violence, or the use of
fear or intimidation.” Thus, “[w]ith the robbery and felony-
murder instructions given, the jury was adequately instructed
that [Juarez] must have possessed the intent to commit robbery
at the time of the killing to be guilty of felony murder . . . .”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 499.)
As to his remaining contentions, “[w]hether we review
[the] claim as asserted instructional error in [instructing the
jury on a particular theory of first degree murder for which there
was insufficient evidence] or insufficiency of the evidence
supporting the jury’s verdict, we apply essentially the same
standard. [Citation.] We ‘review the whole record in the light
most favorable to the judgment below to determine whether it
discloses substantial evidence — that is, evidence which is
reasonable, credible, and of solid value — such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Nelson (2016) 1 Cal.5th 513, 550.)
“Robbery is defined as ‘the felonious taking of personal
property in the possession of another, from his person or
immediate presence, and against his will, accomplished by
means of force or fear.’ (§ 211.) Robbery requires the ‘specific
intent to permanently deprive’ the victim of his or her property.”
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(People v. Mora and Rangel, supra, 5 Cal.5th at p. 489.)
“Liability for first degree murder based on a felony-murder
theory is proper when the defendant kills in the commission of
robbery, burglary, or any of the other felonies listed in section
189. . . . [T]o find a defendant guilty of first degree murder
based on a killing perpetrated during a robbery, the evidence
must show the defendant intended to steal the victim’s property
either before or during the fatal assault.” (People v. Lewis (2001)
25 Cal.4th 610, 642.) “ ‘ “[T]he killing need not occur in the
midst of the commission of the felony, so long as that felony is
not merely incidental to, or an afterthought to, the killing.’
[Citation.] In addition, a homicide occurs in the perpetration of
an enumerated felony for the purpose of the felony-murder rule
if both offenses were parts of ‘ “one continuous transaction.” ’
[Citation.] ‘ “There is no requirement of a strict ‘causal’
[citation] or ‘temporal’ [citation] relationship between the
‘felony’ and the ‘murder.’ ” ’ [Citation.] In addition,
‘[c]ircumstantial evidence may provide sufficient support for a
felony-murder conviction.’ ” (People v. Prince (2007)
40 Cal.4th 1179, 1259.)
Here, there was evidence that when José and Juan arrived
at the Parnell Ranch, José wore a watch, Juan wore gold chains,
and both carried wallets. After their arrival, Juarez asked José
to accompany him into the field, which he did. Y.M. did not see
Juan. When Y.M. subsequently asked where José and Juan
were, Juarez said that they were cleaning and cutting a deer
that he had killed. Although there were no eyewitnesses to the
murders, the evidence indicated that during this time, Juarez
shot José and Juan and buried them. The following day, law
enforcement officers discovered boots under the bed in Juarez’s
trailer, and inside them were three metal chains, a watch, and
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two wallets containing identification for José and Juan, $147 in
American currency, and $80 in Mexican pesos. These items did
not have dirt on them, which suggested that the items were
removed before placing the men in the grave. In addition, the
clasps on the chains appeared undamaged; the jury may have
reasonably inferred from this fact that Juarez sought to
preserve the value of these items as opposed to hastily taking
them as an afterthought to the murders. Rather than
destroying the items, Juarez also placed them within his boots
under his bed.
It is true that there was evidence showing that Juarez had
planned to kill José and Juan, and when asked in the
interrogation why Juarez took their jewelry and wallets, Juarez
said that “[w]hen [he] saw those things it occurred to [him] to
take it” and that he took the items because they would be able
to identify José and Juan, not because they were valuable.
Viewing all of the evidence in the light most favorable to the
judgment, however, we find that a reasonable trier of fact could
conclude that Juarez had a concurrent intent to rob and kill José
and Juan and that the robberies were not merely incidental to,
or an afterthought to, the murders. (Cf. People v. Brooks (2017)
3 Cal.5th 1, 65 [“And although defendant may have intended to
commit arson for the additional purpose of concealing [the
victim’s] identity and his role in her killing, we have observed
that concurrent intent to kill and to commit the target felony
does not preclude a felony-murder theory of first degree
murder.”].) The record discloses legally sufficient evidence of
Juarez’s guilt of felony murder based on robbery. We further
conclude that even though the trial court granted the
section 1118.1 motion as to the felony-murder special
circumstances, the felony murder theory of guilt was still
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properly before the jury, and the trial court did not err in
instructing the jury on that theory.
Even assuming that there was insufficient evidence to
support the felony murder theory of guilt and that the trial court
erred in instructing the jury on that theory, we would still
uphold the first degree murder verdicts here. “A first degree
murder verdict will be upheld if there is sufficient evidence as
to at least one of the theories on which the jury is instructed,
‘absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.’ ” (People v. Nelson,
supra, 1 Cal.5th at p. 552 [upholding first degree murder verdict
where there was sufficient evidence of the primary prosecution
theory of first degree murder based on premeditation and
deliberation, even though there was insufficient evidence to
support the theory of first degree murder based on lying in
wait].) Juarez does not challenge the sufficiency of evidence for
the lying-in-wait and premeditation and deliberation theories
on which the jury was instructed. The record contains ample
evidence in support of these theories: Among other things, he
dug the hole in advance of their arrival, he walked José and
Juan toward the hole after telling them that he had shot a deer
and needed them to go to it, and he shot them in the head from
less than an inch away. The jury found true the special
circumstance that he killed them while lying in wait, which in
itself makes the killing first degree murder. Accordingly, we
uphold the first degree murder verdicts for the murders of José
and Juan.
E. Constitutionality of Lying-in-wait Special
Circumstance
Juarez claims that the lying-in-wait special circumstance
is unconstitutional because it is vague and fails to adequately
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narrow the class of persons eligible for the death penalty. We
have previously rejected these claims. (See, e.g., People v. Cage
(2015) 62 Cal.4th 256, 281; People v. Lewis (2008)
43 Cal.4th 415, 516.) He also challenges the lying-in-wait
special-circumstance instruction, CALJIC No. 8.81.15, as
confusing and contradictory. We have previously rejected these
challenges. (See, e.g., People v. Cage, at pp. 280–281; People v.
Bonilla (2007) 41 Cal.4th 313, 332–333.) Juarez provides no
reason to revisit those decisions here.
F. Sufficiency of Evidence for Lying-in-wait
Special Circumstance as to J.M. and A.M.
Juarez contends that there was insufficient evidence to
support the jury’s finding that he killed J.M. and A.M. while
lying in wait.
“A sufficiency of evidence challenge to a special
circumstance finding is reviewed under the same test applied to
a conviction. [Citation.] Reviewed in the light most favorable to
the judgment, the record must contain reasonable and credible
evidence of solid value, ‘such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.’ ” (People
v. Stevens (2007) 41 Cal.4th 182, 201.)
At the time of the 1998 murders, “ ‘the elements of the
lying-in-wait special circumstance required an intentional
killing, committed under circumstances that included a physical
concealment or concealment of purpose; a substantial period of
watching and waiting for an opportune time to act; and,
immediately thereafter, a surprise attack on an unsuspecting
victim from a position of advantage. [Citations.] . . . . [The
period of waiting and watching] need not continue for any
particular length “ ‘of time provided that its duration is such as
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to show a state of mind equivalent to premeditation and
deliberation.’ ” [Citation.] “ ‘ “The element of concealment is
satisfied by a showing ‘ “that a defendant’s true intent and
purpose were concealed by his actions or conduct. It is not
required that he be literally concealed from view before he
attacks the victim.” ’ ” ’ ” [Citation.] The factors of concealing
murderous intent, and striking them from a position of
advantage and surprise, “are the hallmark of a murder by lying
in wait.” [Citation.]’ [Citations.] ‘[T]he lying-in-wait special
circumstance requires “that the killing take place during the
period of concealment and watchful waiting. . . .” [Citation.]’
[Citation.] ‘ “During” means “at some point in the course of.” ’
[Citation.] [¶] Moreover, when the capital crime[s] occurred, the
lying-in-wait special circumstance required a showing that the
defendant ‘intentionally killed the victim while lying in wait.’
(§ 190.2, former subd. (a)(15), italics added.)” (People v. Hajek
and Vo (2014) 58 Cal.4th 1144, 1183–1184.)
Viewing the evidence in the light most favorable to the
judgment, we conclude that a rational trier of fact could have
found true this special circumstance. The record contains
evidence that Juarez walked J.M. and A.M. approximately a
quarter-mile to a remote location, where he had dug a hole that
already contained the bodies of José and Juan and that was deep
enough to hold additional bodies. “[T]he jury could reasonably
infer that a matter of minutes elapsed” on the walk. (People v.
Edwards (1991) 54 Cal.3d 787, 826 [substantial period of
watching and waiting where “more than a quarter of a mile
separated the spot where defendant first saw the girls and
where he shot them”].) The jury could also reasonably conclude
that he concealed his purpose as they walked. It is true that the
children had seen him attack their mother, they had cried, and
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he had put tape on them. But Juarez said that he removed the
tape and that the children wanted to see their father. The jury
could reasonably infer that despite having been upset, the
children — aged three and five — were willing to walk with
Juarez because he was an adult with whom they were familiar.
Juarez himself said that the children had calmed down and that
A.M. became tired, so he let go of J.M.’s hand and carried her.
Finally, the record contains evidence that once near the hole, he
struck the children’s heads and put them in the hole. This is
sufficient to infer a substantial period of watching and waiting,
followed by a surprise attack from a position of advantage.
G. Sufficiency of Evidence for Felony Murders of
J.M. and A.M.
The jury was instructed that it could convict Juarez of the
first degree murders of J.M. and A.M. based on the theories of
premeditation and deliberation, lying in wait, or felony murder.
The jury found him guilty. Juarez claims, however, that there
was insufficient evidence of felony murder — that is, that he
killed them in the commission of the rape or penetration by a
foreign object of Y.M. — and the trial court erred in instructing
the jury as to that theory. He acknowledges that the felony-
murder special circumstances as to J.M. and A.M. were
dismissed.
We need not decide whether sufficient evidence supported
the theory of felony murder here. The jury’s true findings
regarding the lying-in-wait special circumstance show that the
jury found that Juarez killed J.M. and A.M. while lying in wait.
Because there was sufficient evidence to support the first degree
murder verdicts based on the lying-in-wait theory (see pt. IV(F),
ante) and no indication that the verdicts rested on the felony
murder theory, the verdicts must be upheld.
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H. Admission of Photographs
The prosecutor sought to introduce 14 crime scene and 25
autopsy photographs depicting the four murder victims. The
defense objected to all but three of them. The trial court
considered each photograph and excluded eight as cumulative
or unduly prejudicial, directed the prosecutor to crop one, and
allowed the remaining to be introduced.
During the guilt phase, Detective Summers testified about
the excavation of the grave and photographs depicting the
victims within it. The photographs were displayed on a screen,
and at times, the prosecutor enlarged parts of them. When the
defense objected to these enlargements, the trial court directed
the prosecutor to inform the defense before enlarging anything
on the screen, but noted that the overhead projections were of
“significantly lower quality than the actual photographs” and
“there has been nothing more than a restoration on the screen”
of the actual photographs. Dr. Henrikson also testified during
the guilt phase about the autopsies and photographs from them.
Juarez contends that the trial court abused its discretion
and violated his federal constitutional rights to a fair trial, due
process, and reliable verdicts and sentence.
“ ‘ “This court is often asked to rule on the propriety of the
admission of allegedly gruesome photographs. [Citations.] At
base, the applicable rule is simply one of relevance, and the trial
court has broad discretion in determining such relevance.” ’ ”
(People v. Powell (2018) 6 Cal.5th 136, 163.) “ ‘ “A trial court’s
decision to admit photographs . . . will be upheld on appeal
unless the prejudicial effect . . . clearly outweighs their
probative value.” ’ ” (Ibid.)
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Here, the trial court exercised its discretion in excluding
some photographs and admitting others. We have examined the
photographs. The crime scene photographs were relevant to
show that the murders occurred, where and how the victims
were buried, and the order in which they were buried. (See
People v. Cowan (2010) 50 Cal.4th 401, 475 [photographs
showed “the locations and positions in which [the] bodies were
found”].) The autopsy photographs were relevant to show the
manner of the killings and to clarify testimony regarding the
victims’ injuries and causes of death. (Ibid.) Although the
photographs were numerous, “none gratuitously duplicated any
other.” (People v. Memro (1995) 11 Cal.4th 786, 867; see People
v. Panah, supra, 35 Cal.4th at pp. 476–477 [no abuse of
discretion for admitting eight photographs of victim]; People v.
Crittenden (1994) 9 Cal.4th 83, 131–135 [no abuse of discretion
for admitting 24 photographs of two victims].)
Nor were the photographs “ ‘so gruesome as to have
impermissibly swayed the jury.’ ” (People v. Burney (2009)
47 Cal.4th 203, 243.) The excavators proceeded carefully in an
effort to preserve and photograph the original positions of the
bodies. Similarly, the autopsy photographs did not contain
gratuitous details. Contrary to Juarez’s argument, they were
wholly unlike the autopsy photographs in People v. Marsh
(1985) 175 Cal.App.3d 987, 996–999, which were “gruesome
solely because of the autopsy surgeon’s handiwork; removing the
skull, opening the body cavity, covering the child’s face with the
exposed underside of the bloody scalp, etc.” We conclude the
trial court did not abuse its discretion or violate Juarez’s
constitutional rights.
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I. Prosecutorial Misconduct
Juarez contends that the prosecutor committed
misconduct by eliciting inadmissible and prejudicial testimony.
This misconduct, he contends, violated his rights to due process
and a reliable guilt and penalty determination.
1. Testimony by Deputy Walker
While discussing motions in limine, defense counsel noted
that a responding officer had described “[Y.M.] running her
finger across her neck in a gesture,” but defense counsel did not
believe that the prosecutor intended to introduce this evidence.
The court said, “Well, let’s — why don’t we deal with this
whenever you think it first needs to come up.” The prosecutor
said, “That’s fine, Your Honor.”
During the guilt phase, Deputy Walker testified about
talking to Y.M. on the night of the crimes. He asked her whether
she had been tied up. When the prosecutor asked about her
response, the defense objected on hearsay grounds, but the court
overruled the objection. Deputy Walker testified, “I don’t
remember if I got a response in regards to the duct tape, but I
do remember regards [sic] to the scarf that was around her
neck.” The prosecutor asked, “Did she physically manipulate or
move the scarf in some fashion in response to your question?” to
which Deputy Walker replied affirmatively. The prosecutor
then asked, “How did she do that?” Deputy Walker replied, “She
took the scarf, put it in her mouth and said, ‘Arturo bad,’ ” and
Deputy Walker made a “grating noise” and “dr[ew] his right
index finger across his neck.”
The defense objected and, outside the presence of the jury,
moved for a mistrial, arguing that the gesture and noise were
hearsay, prejudicial, and conveyed that Y.M. wanted Juarez to
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be killed. Although opposing this, the prosecutor described the
gesture as Y.M. “expressing anger regarding [Juarez] and
perhaps a desire to get even for what has occurred.”
The trial court urged counsel to remember “those matters
with respect to which there are in limine orders in place and
which have not been ruled on,” and observed that defense
counsel “did what he needed to do in order to assure that he
could get a ruling on this evidence before the jury heard it.” The
court, however, denied the motion for a mistrial. The court
concluded that the gesture fell within the hearsay exception for
excited utterances and carried “little, if any,” prejudice. The
court explained that the gesture was “highly ambiguous.” “[I]t
is extraordinarily unlikely that what [Y.M.] was trying to convey
was [Juarez] has done a terrible thing and should receive the
death penalty.” Instead, “it is highly likely what she was trying
to convey is yes, I had some kind of a binding of some sort around
my neck,” or at most, “an expression of undifferentiated
outrage.” The court also denied the defense’s request to
admonish the jury to disregard Deputy Walker’s testimony,
without prejudice to the defense later requesting an instruction
that the jury should disregard any victim’s views on how this
case should be resolved.
“ ‘ “A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct ‘so
egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process.’ ” ’ [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‘ “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘ “It is, of
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course, misconduct for a prosecutor to ‘intentionally elicit
inadmissible testimony.’ [Citations.]” [Citation.] Such
misconduct is exacerbated if the prosecutor continues to elicit
such evidence after defense counsel has objected.’ [Citation.]
However, a prosecutor cannot be faulted for a witness’s
nonresponsive answer that the prosecutor neither solicited nor
could have anticipated.” (Tully, supra, 54 Cal.4th at p. 1035;
People v. O’Malley (2016) 62 Cal.4th 944, 998.)
Whether the prosecutor, in asking Deputy Walker how
Y.M. physically manipulated or moved the scarf, could have
anticipated the testimony about her gesture and noise presents
a close issue. The prosecutor did not directly ask whether she
made a gesture or a noise, although defense counsel had alerted
the prosecutor to the issue and the trial court had expressly
reserved the issue. But even assuming the prosecutor elicited
this testimony in violation of the court’s request to rule on it, the
prosecutor’s “asking of a single question” did not constitute a
“pattern of conduct so egregious that it rendered the trial
fundamentally unfair.” (People v. Cox (2003) 30 Cal.4th 916,
952.) Nor did the prosecutor’s conduct cause prejudice at the
guilt phase or the penalty phase of the trial. The gesture and
noise were a brief and passing element of a lengthy trial, with
little if any prejudicial weight in comparison to the totality of
other evidence. We find no prejudicial misconduct or trial court
error.
2. Testimony by Orozco
The trial court ordered that “no other crimes evidence, no
character evidence, and no reputation evidence be introduced
during the guilt phase,” without a court order. Before Orozco
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testified, the prosecutor stated that he no longer intended to
introduce testimony about Juarez’s womanizing.
During Orozco’s testimony, the prosecutor asked whether
he recalled “anything [Juarez and he] talked about on the way
back” after visiting the Martinezes. Orozco replied
affirmatively. The prosecutor asked, “And what was that?”
Orozco responded in Spanish, but the interpreter did not
translate his response in the jury’s presence. Outside the jury’s
presence, the interpreter translated his response: “ ‘He was
talking to me about being with a girl in Santa Gertrudis.’ ”
The defense moved for a mistrial, arguing that the
prosecutor violated his representation regarding Orozco’s
testimony. The court denied the motion but agreed to strike
Orozco’s response and instruct the jurors that to the extent they
understood it, they should disregard it.
Shortly after resuming, the prosecutor asked Orozco
whether Juarez said anything about the Martinezes on the
drive. Orozco responded no, and further testified that Juarez
did not mention being threatened by José or Juan.
There was no misconduct. Although the prosecutor asked
an open-ended question, it is not clear that the prosecutor
solicited or anticipated Orozco’s response. And even if we
assume that the prosecutor did anticipate Orozco’s response, it
did not render the trial fundamentally unfair or cause prejudice.
The response was brief and stated in Spanish, and the court
struck it and instructed the jury to disregard it.
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V. PENALTY PHASE ISSUES
A. Denial of Discovery Motion Regarding
Discriminatory Prosecution
Juarez contends that the trial court erred in denying his
motion for discovery to pursue a claim of discriminatory
prosecution by the Placer County District Attorney’s Office
(District Attorney). He asks us to remand the case to the trial
court to consider his claim of discriminatory prosecution after
he receives discovery.
“ ‘[D]iscriminatory enforcement of the laws may be a valid
defense in a case in which the [defense] can establish deliberate
invidious discrimination by prosecutorial authorities.’
[Citation.]. . . . In Murgia[ v. Municipal Court (1975)]
15 Cal.3d [286, 306], we held that when a defendant seeks to
defend a criminal prosecution based on discriminatory
prosecution, ‘traditional principles of criminal discovery
mandate that defendants be permitted to discover information
relevant to such a claim.’ ” (People v. Montes (2014)
58 Cal.4th 809, 828.) “Under our state law standard, a Murgia
motion must ‘ “describe the requested information with at least
some degree of specificity and must be sustained by plausible
justification.” ’ [Citation.] We have held a showing of ‘plausible
justification’ requires a defendant to ‘show by direct or
circumstantial evidence that prosecutorial discretion was
exercised with intentional and invidious discrimination in his
case.’ [Citation.] Similarly, under the federal standard, a
defendant must produce ‘ “some evidence” ’ tending to show the
existence of both a discriminatory effect and the prosecutor’s
discriminatory intent.” (Id. at p. 829.) On appeal, we assume
that the motion was validly made and consider “whether
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defendant made the requisite showing under state or federal
standards to obtain the discovery he sought.” (Ibid.)
Juarez argues that he made the requisite showing based
on two facts alleged in his motion. First, since 1977, there were
only three other cases involving multiple murders and murders
of children; the defendants (James Hill, Kenneth McGraw,
Theresa Knorr) were Caucasian and were offered plea bargains.
Second, in the preceding decade, the District Attorney sought
the death penalty at trial against only two defendants, both of
whom were African American.
The Attorney General argues that Juarez failed to make
the requisite showing and relies on additional facts identified by
the District Attorney. First, the cases against Hill, McGraw,
and Knorr were distinguishable. Hill had been admitted to a
mental hospital before killing his two children; McGraw had
been found incompetent to stand trial for killing his pregnant
estranged wife and daughter, and a key prosecution witness had
died before McGraw’s criminal proceedings resumed; and
Knorr’s case had been transferred to another county, where the
District Attorney did not participate. Second, Juarez’s date
range for death penalty trials was arbitrary and misleading.
Based on the prosecutor’s “personal knowledge of the cases, [his]
personal review of court files, and on [his] direct communication
with [deputy district attorneys],” the District Attorney charged
46 defendants (of whom 26 were White, 19 were persons of color,
and one was of unknown ethnicity) with special circumstances
between 1977 and 2000, and sought the death penalty at trial
against eight of them, of whom five were White, two were
African American, and one was of unknown ethnicity.
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The trial court denied the motion after finding no showing
of discriminatory effect or discriminatory intent based on a case-
by-case analysis or a statistical analysis. The court noted that
no case in the county’s history involved the “degree of criminal
conduct in terms of multiple homicides and sexual assault” as
existed here.
We see no error. Juarez’s case-by-case analysis boils down
to merely two cases, both of which involved fewer murders and
no rape allegations. Neither comparison is persuasive. In
addition, his statistics about the District Attorney seeking the
death penalty at trial “failed to take into account the case
characteristics of the homicides” and used an arbitrary date
range, as suggested by the District Attorney’s additional
information in this regard. (People v. Montes, supra, 58 Cal.4th
at pp. 830–831.) Juarez has not made the requisite showing.
B. Use of Jail Visitation Logs
Before trial, the prosecutor’s investigator reviewed
Juarez’s jail visitation logs and contacted persons listed on
them. Juarez contends that this conduct violated his statutory
and constitutional rights and urges us to set aside his
convictions and sentence.
1. Background
In December 1999, defense counsel learned that the
prosecutor’s investigator, Joe Bertoni, had contacted two of its
experts. The defense filed an emergency application to restrain
the prosecutor from accessing the identities of defense experts
or contacting them, and to order the prosecutor to disclose all
defense experts of whom they had become aware or whom they
had contacted and the source of that information. At a
December 13, 1999 hearing, the defense explained that the
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prosecutor had obtained the information from jail visitation
logs. The trial court ordered the prosecutor to provide the
defense with copies of the jail visitation logs, a list of all persons
contacted from them, and a summary of all information
obtained. The court also ordered the prosecutor not to review
the logs or contact persons on them and not to disclose
information obtained to the Attorney General, pending a further
hearing. The defense subsequently moved to estop the
prosecutor from seeking the death penalty, to recuse the District
Attorney, and to require the prosecutor to demonstrate that no
part of its case relied on information thus obtained.
At the hearing in January 2000, the acting corrections
support supervisor, Donna Sylvia, testified that the jail
maintains visitation logs for security reasons but routinely
provides them to law enforcement. The logs contain the date
and time of each visit, classify the visit as either personal or
professional, and contain a remarks field that typically lists the
visitor’s name, contact information, and relationship (if
personal) or occupation (if professional). The logs typically do
not contain the purpose of the visits, although a clerk could
enter that information in the remarks field. For example, the
log refers once to “psych eval” in the remarks field.
Bertoni testified that he routinely reviewed visitation logs
in his investigations to identify potential witnesses and was not
aware of any rule prohibiting such review. He accessed the logs
in Juarez’s case through his network terminal on two occasions
(once in 1998 and again around July 1999), and due to a system
change, he requested and received them through the jail records
custodian on a third occasion (around Sept. or Oct. 1999). On
that third occasion, he requested them after being asked to do
so in a memorandum by Deputy District Attorney Peggy Turner,
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who indicated she acted on behalf of Deputy District Attorney
Thomas Beattie. The memorandum asked Bertoni to review the
logs and gather information about professionals listed in them,
including whether, where, and what they had previously
testified.
Bertoni testified that in reviewing the logs, he identified
personal visitors who might lead to additional interviews and
sought information about professional visitors. He contacted
four of the personal visitors as part of his “continuing
investigation.” He searched the Internet and contacted
associations in regard to two professional visitors; from this, he
learned that one of the professionals had testified in Sonoma
County. He then called the two professionals, identified himself,
said that they might be witnesses in this case, and asked for
their curricula vitae and experience testifying. One of the
professionals agreed to provide her curriculum vitae and said
that she had testified approximately “40/60” for the prosecution
and the defense but did not clarify to which side the percentages
corresponded. Bertoni testified that he did not recall but may
have referred to the other professional by name in his call with
her. Bertoni did not ask about their conversations with Juarez,
and no confidential communications were divulged. He provided
the information he collected to Turner and Beattie.
Following the hearing, the trial court concluded that the
prosecutor did not violate any express statutory provision, but
the court made note of section 987.9, which authorizes a capital
defendant to “request the court for funds for the specific
payment of investigators, experts, and others for the
preparation or presentation of the defense,” and provides that
“[t]he fact that an application has been made shall be
confidential and the contents of the application shall be
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confidential.” In order to facilitate section 987.9’s purpose and
spirit, and to permit the defense to prepare its case in an
atmosphere of confidentiality, the court ordered the jail not to
disclose, and the District Attorney not to obtain, any
information pertaining to the defense expert witnesses in the
case unless an exception applied. “Expert witnesses” for
purposes of this order meant persons retained by the defense
pursuant to section 987.9. The court declined to preclude the
prosecutor from seeking the death penalty or to recuse the
District Attorney because the court found the defense had failed
to establish the necessity of either sanction. The court found no
showing of material prejudice. The court declined to speculate
that the prosecutor held the key to the defense’s case based on
the names of two potential experts. The court reasoned that the
information about the two experts would have been
subsequently disclosed to the prosecutor or would have been
rendered irrelevant. The court noted that “[t]here may well be
other tactical arguments or information that might be gleaned
from the presence or absence of any particular witness,” but in
the very early stage of the trial preparation process here, the
court was “only given the possibility of prejudice without any
actual showing of prejudice.”
Several months later, the defense renewed its motion to
estop the prosecutor from seeking the death penalty and to
recuse the District Attorney. The defense claimed that the
prosecutor improperly contacted the California Medical
Forensic Group (CMFG), which provided medical and mental
health care to inmates, and learned that Juarez’s file did not
contain any psychotherapist records. The defense argued that
the prosecutor sought this information to determine whether
there was any medical or mental condition that might bear on
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the Miranda issues or on the mitigating evidence at the penalty
phase. The prosecutor responded that he had contacted CMFG
because he had issued a subpoena and did not want to
inadvertently receive materials subject to the psychotherapist
privilege. The trial court denied the motion. The court
characterized the prosecutor’s conduct as “probably ill advised”
and “probably improper” but “an honest attempt to avoid
problems of getting information they didn’t have a right to.” The
court subsequently ruled that the prosecution could not
introduce Juarez’s jail medical records in its case-in-chief.
2. Discussion
Juarez seems to agree with the Attorney General that a
prosecutor can access jail visitation logs for purposes other than
gathering information about a defendant’s possible defenses.
(Cf. People v. Loyd (2002) 27 Cal.4th 997, 1010 [“California law
now permits law enforcement officers to monitor and record
unprivileged communications between inmates and their
visitors to gather evidence of crime”].) He focuses his claim on
the prosecutor’s use of the jail visitation logs to obtain
information about defense experts. He contends that this
conduct violated state statutes and his constitutional right to
counsel, his right against self-incrimination, and his rights to
due process and equal protection. He also asserts with little
analysis that this conduct violated Evidence Code section 1017
and his rights to be free of unreasonable searches and seizures
and to privacy and association.
We begin with Juarez’s statutory claims. Civil Code
section 1798.24 of the Information Practices Act of 1977 (Civ.
Code, § 1798 et seq.) prohibits agencies from disclosing
“personal information in a manner that would link the
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information disclosed to the individual to whom it pertains,”
absent an exception. Subdivision (e), however, permits
disclosing information to another agency when the disclosure is
necessary for the agency to perform its duties and “the use is
compatible with a purpose for which the information was
collected.” (Civ. Code, § 1798.24, subd. (e).) When information
is transferred to or from a law enforcement agency, “a use is
compatible if the use of the information requested is needed in
an investigation of unlawful activity under the jurisdiction of
the requesting agency.” (Ibid.) Subdivision (o) additionally
permits disclosing information “[t]o a law enforcement or
regulatory agency when required for an investigation of
unlawful activity” unless the disclosure is otherwise prohibited
by law. (Civ. Code, § 1798.24, subd. (o).) Information that is
permitted to be disclosed under subdivision (e) or subdivision (o)
“shall be provided when requested by a district attorney.” (Civ.
Code, § 1798.68.) Because the Information Practices Act of 1977
provides that information required for an investigation of
unlawful activity “shall be provided” to a district attorney upon
request, we do not find a violation of this statute by the
prosecutor’s access to the jail visitation logs here.
Section 987.9 provides that in a capital case trial, “the
indigent defendant, through the defendant’s counsel, may
request the court for funds for the specific payment of
investigators, experts, and others for the preparation or
presentation of the defense.” (§ 987.9, subd. (a).) “The fact that
an application has been made shall be confidential and the
contents of the application shall be confidential.” (Ibid.) In light
of section 987.9’s directive that not only the contents of a defense
application for payment of experts but also the mere “fact that
an application has been made” “shall be confidential,” we find it
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troubling that the prosecutor in this case directed the
investigator to review the visitation logs for the purpose of
learning about the defense’s possible experts. Through these
efforts, the prosecutor learned about two experts who were
consulted but who ultimately did not testify. In other words, the
prosecutor’s purpose was to learn — and he in fact did learn —
what he could about the defense plans from whatever could be
gleaned from the identities of the defense’s possible experts.
Although section 987.9 does not expressly make confidential the
fact that a defense expert visited a defendant in jail, the
prosecutor’s conduct is difficult to square with the evident
purpose of section 987.9. (See People v. Berryman (1993)
6 Cal.4th 1048, 1071 [“ ‘The confidentiality requirement was
evidently intended to prevent the prosecution from learning of
the application for funds and thereby improperly anticipating
the accused’s defense.’ ” (italics added)].)
However, even if we find the prosecutor’s learning about
the defense’s possible experts to be an improper invasion of
Juarez’s statutory entitlement to confidentiality in consulting
defense experts, we cannot reverse the judgment unless we find
it “reasonably probable that a result more favorable to [the
defendant] would have been reached” at the guilt phase in the
absence of the prosecutor’s conduct (People v. Watson (1956)
46 Cal.2d 818, 836) or that there is “a reasonable (i.e., realistic)
possibility that the jury would have rendered a different verdict”
at the penalty phase in the absence of the prosecutor’s conduct
(People v. Brown (1988) 46 Cal.3d 432, 448). Here, neither the
prosecutor nor the investigator sought to learn, or actually
learned, of any conversations among Juarez, the experts, and
defense counsel. The circumstances here differ from those in
Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1261,
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where the prosecutor “orchestrate[d] an eavesdropping upon a
privileged attorney-client communication in the courtroom and
acquire[d] confidential information.” (Ibid. [dismissal is
appropriate because there was a “ ‘substantial threat of
demonstrable prejudice’ ” as a matter of law].)
Further, the record does not show that the conduct aided
the prosecution or harmed the defense. The trial court, alert to
the confidentiality guarantee in section 987.9, restricted the
prosecution’s access to information about defense experts in
December 1999, approximately 15 months before trial. There is
no showing of specific insights that the prosecutor divined about
defense strategy before then. And neither the Attorney General
nor Juarez identify any specific evidence offered by the
prosecution that was developed as a result of the visitation logs.
Nor has Juarez pointed to any specific evidence that the defense
chose not to present as a result of the prosecutor’s conduct.
Juarez also has not shown that the prosecutor’s conduct actually
impaired Juarez’s ability to consult with counsel or any expert,
or his ability to otherwise assist in his defense. We conclude
that, despite the impropriety of the prosecutor’s conduct,
reversal on statutory grounds is unwarranted.
We further reject Juarez’s related assertion that the
attorney-client and work-product privileges were violated. None
of the information obtained from the visitation logs constituted
“a confidential communication between client and lawyer.”
(Evid. Code, §§ 952, 954.) Nor did the information constitute
attorney work-product material — that is, “ ‘ “any writing
reflecting ‘an attorney’s impressions, conclusions, opinions, or
legal research or theories.’ ” ’ ” (People v. Zamudio (2008)
43 Cal.4th 327, 355; see id. at p. 355, fn. 14.)
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We next consider whether the prosecutor’s conduct
violated Juarez’s right to counsel under article I, section 15 of
the California Constitution. In Barber v. Municipal Court
(1979) 24 Cal.3d 742, 745 (Barber), we considered the proper
remedy when an accused’s constitutional right to counsel has
been denied by the actions of an undercover police officer who
posed as a codefendant and attended the accused’s confidential
attorney-client conferences. We held that the right to counsel
guaranteed by the Constitution “embodies the right to private
consultation with counsel” and “is violated when a state agent
is present at confidential attorney-client conferences.” (Id. at
p. 752.) Rejecting an exclusionary remedy, we concluded the
appropriate remedy was dismissal of the charges. (Id. at
pp. 759–760.)
We distinguished Barber in People v. Alexander (2010)
49 Cal.4th 846 (Alexander), where we emphasized that “the
officer in Barber participated in many meetings during which
defense strategy was thoroughly discussed; he conveyed, to some
degree, the nature of the anticipated defense with his superiors;
and he inserted himself directly into the defense preparations
. . . . All of this occurred because the officer, with the knowledge
of the prosecution, deceived the defendant and their attorneys
concerning his true status. [Citation.] In addition, there was
evidence that the defendants ‘[had] been prejudiced in their
ability to prepare their defense’ after they learned an
undercover officer had been in their midst.” (Id. at p. 895.) In
Alexander, “detectives intercepted one telephone call between
defendant and a defense investigator that covered only limited
topics related to certain witnesses, and the interception occurred
pursuant to a judicially approved warrant, not ‘trickery’ by the
authorities. There was no evidence anyone other than the
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officers monitoring the call learned of its contents, and much of
what was discussed in that call was repeated in subsequent calls
that were not privileged.” (Ibid.) On these facts, we declined to
decide whether the defendant’s state constitutional right to
counsel was violated; we instead concluded that reversal was
not warranted even assuming a violation. (Ibid.) Finding “[n]o
evidence establish[ing] that the prosecution gained anything
from intercepting the call or that the defense was affected
negatively in a way that could have changed the trial’s
outcome,” we concluded that the defendant had not shown “a
reasonable probability” of prejudice. (Id. at p. 899.)
Similarly here, even assuming Juarez’s state
constitutional right to counsel was violated, there is no
reasonable probability or possibility that absent the violation, a
result more favorable to him would have been reached at either
the guilt or the penalty phase of the trial. In this case, unlike in
Barber, no state agent attended confidential attorney-client
conferences, and all attorney-client communications remained
confidential. Moreover, as noted, neither the investigator nor
the prosecution learned the content of any conversations
between Juarez and the experts, and the record does not show
that the prosecutor’s conduct impaired the preparation of his
defense or aided the state’s presentation of the evidence against
him.
We turn now to Juarez’s claim that the prosecutor’s
conduct violated his right to counsel under the Sixth
Amendment. “In Weatherford v. Bursey (1977) 429 U.S. 545,
549 [51 L.Ed.2d 30, 97 S.Ct. 837] (Weatherford) the Supreme
Court rejected a per se rule that ‘ “whenever the prosecution
knowingly arranges and permits intrusion into the attorney-
client relationship the right to counsel is sufficiently endangered
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to require reversal and a new trial.” ’ Although the high court
did not establish a definitive standard for determining when
surreptitious state participation in communications between a
defendant and his or her attorney or . . . the attorney’s agent,
does violate the Sixth Amendment, it stated that unless the
record supports ‘at least a realistic possibility of injury to [the
defendant] or benefit to the State, there can be no Sixth
Amendment violation.’ [Citations.] In other words, a court
properly rejects a Sixth Amendment claim based on
surreptitious state participation in communications between a
defendant and his or her attorney or the attorney’s agent when
the record demonstrates there was no realistic possibility of
injury to the defendant or benefit to the prosecution.”
(Alexander, supra, 49 Cal.4th at pp. 888–889.)
Weatherford was an undercover law enforcement agent
who, along with Bursey and two others, vandalized an office.
Bursey was arrested and charged, and Weatherford, in order to
maintain his undercover status, was fictitiously arrested and
charged as well. Weatherford was invited to two meetings with
Bursey and his attorney Wise to discuss defense tactics.
Weatherford did not share any information he obtained from
those meetings. But he did testify at Bursey’s trial regarding
his undercover activities and the vandalism. After Bursey was
convicted, Bursey initiated a civil rights action against
Weatherford and others, alleging a deprivation of his Sixth
Amendment right to the assistance of counsel. (Weatherford v.
Bursey, supra, 429 U.S. at pp. 547–549 (Weatherford).)
The high court observed that Weatherford’s testimony did
not reveal anything about the meetings, that none of the state’s
evidence was obtained as a result of his participation in the
meetings, and that the district court found that Weatherford did
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not communicate about the meetings to his superiors or to the
prosecution. (Weatherford, supra, 429 U.S. at pp. 555–556.)
“Moreover, this is not a situation where the State’s purpose was
to learn what it could about the defendant’s defense plans and
the informant was instructed to intrude on the lawyer-client
relationship or where the informant has assumed for himself
that task and acted accordingly.” (Id. at p. 557.) “There being
no tainted evidence in this case, no communication of defense
strategy to the prosecution, and no purposeful intrusion by
Weatherford,” the Sixth Amendment was not violated. (Id. at
p. 558.)
We applied Weatherford in People v. Ervine (2009)
47 Cal.4th 745 (Ervine). There, the trial court found that jail
personnel had read defendant’s privileged materials during a
search of his cell, but no privileged information had been
communicated to the prosecution. We found no Sixth
Amendment violation in the absence of evidence that
confidential information was conveyed to the prosecution. (Id.
at pp. 763–765, 768.)
We again applied Weatherford in Alexander, where the
defendant challenged the recording of a telephone call involving
himself, his mother, and a defense investigator. We said the
“critical facts are comparable [to those in Weatherford] in all
important respects.” (Alexander, supra, 49 Cal.4th at p. 889.)
“In both cases a law enforcement officer who was assisting in the
investigation of the defendant’s offenses, and who testified at
the defendant’s trial, became privy to trial strategy discussions
between the defendant and the defense attorney or the
attorney’s agents. In both, the record supported the findings
that the information the officer learned was not conveyed to the
prosecutors and that the officer’s investigation or testimony at
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trial was not affected by information learned during the
discussions.” (Ibid.) Neither case was “ ‘a situation where the
State’s purpose was to learn what it could about the defendant’s
defense plans.’ ” (Id. at p. 890.) We also noted that the
“defendant’s mother repeated to others much of what was
discussed during the three-way call” and that the prosecutors
therefore “would have learned much of its contents,” further
decreasing “any possibility that interception of the call hindered
the defense or benefited the prosecution.” (Id. at pp. 889–890.)
We thus concluded “the record demonstrates no realistic
possibility that defendant was injured by, or the prosecution
benefited from, the monitoring and recording of the three-way
call” and, accordingly, there was no Sixth Amendment violation.
(Id. at p. 891.)
Here, unlike in Weatherford, Ervine, and Alexander, the
prosecutor purposefully instructed the investigator to review
the visitation logs in order to learn about possible defense
experts. And the investigator did learn confidential information
— namely, the identities of two defense experts — and
proceeded to research the background and qualifications of
those experts, presumably to gain insight into the defense plan.
This conduct improperly invaded the confidentiality to which
Juarez was entitled in preparing his defense. Nevertheless, the
prosecutor did not learn the content of any conversation between
Juarez and the experts, and the Attorney General and Juarez
do not point to any trial evidence that was derived or developed
from the investigator’s access to the visitation logs, nor does
Juarez identify any evidence he would have developed or
presented had the improper access not occurred. For these
reasons and others stated above, we conclude that “the record
demonstrates no realistic possibility that defendant was injured
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by, or the prosecution benefited from,” the investigator’s access
to the visitation logs, and we thus find no Sixth Amendment
violation. (Alexander, supra, 49 Cal.4th at p. 891.)
Juarez additionally asserts a violation of his Fifth
Amendment right against self-incrimination. The Fifth
Amendment “prohibits the direct or derivative criminal use
against an individual of ‘testimonial’ communications of an
incriminatory nature, obtained from the person under official
compulsion.” (People v. Low (2010) 49 Cal.4th 372, 390.) Juarez
notes that the experts signed into the jail, but he identifies no
statement obtained by compulsion and personal to him, much
less used against him at trial. (See Maldonado v. Superior Court
(2012) 53 Cal.4th 1112, 1127 [“this constitutional provision
simply bars the direct or derivative use of such officially
compelled disclosures to convict or criminally punish the person
from whom they were obtained”]; cf. Izazaga v. Superior Court
(1991) 54 Cal.3d 356, 367–369 [statements of witnesses are not
personal to the defendant and therefore fall outside this clause].)
His claim therefore fails.
Juarez’s asserted violation of his due process rights fares
no better. He claims that the prosecutor’s use of the logs
“disrupt[ed] the reciprocity mandated by the due process clause”
because the defense did not have access to the logs or
comparable access to information about prosecution experts.
“However, as we have explained, because the concern of the due
process clause is ‘the right of the defendant to a fair trial,’ the
focus of the reciprocity inquiry under the due process clause is
whether any lack of reciprocity ‘ “interferes with the defendant’s
ability to secure a fair trial.” ’ ” (People v. Valdez (2012)
55 Cal.4th 82, 120.) To the extent there was any lack of
reciprocity here, it did not compromise his ability to present a
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defense or tilt the balance toward the state to any significant
degree.
Nor do we find merit in his undeveloped equal protection
argument. Juarez contends that the prosecutor could access the
identities of possible defense experts only because he was
incarcerated and not released on bail. But he offers no reason
why the state may not require persons visiting an incarcerated
defendant to identify themselves to prison authorities, even
though persons visiting a defendant who is not incarcerated
need not.
Finally, as to the prosecutor’s contact with CMFG, Juarez
argues that the prosecutor learned from CMFG “what it needed
to know about any evidence of mental conditions that [Juarez]
might use during pretrial motions, or at a penalty phase,” and
he asserts with little analysis that this interfered with the
development of a defense and violated his right against self-
incrimination, to equal protection, and to a fair trial. The
prosecutor’s inquiry into the existence of an inmate’s
psychotherapy records is also troubling. (See Evid. Code,
§ 1017, subd. (a) [psychotherapist-patient privilege applies
“where the psychotherapist is appointed by order of the court
upon request of” defense counsel in order to advise a criminal
defendant on presenting a defense based on his or her emotional
or mental condition].) But the trial court prohibited the
prosecutor from introducing Juarez’s jail medical records. For
this reason, and for the reasons discussed above, the
prosecutor’s conduct did not violate these constitutional rights
or deprive Juarez of a fair trial.
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C. Denial of Motion for a Mistrial Following Y.M.’s
Testimony
Juarez contends that the trial court erred in denying his
motion for a mistrial after Y.M. testified. Her testimony, he
argues, was so inflammatory that it deprived him of the jury’s
reasoned moral response and violated his rights to due process,
a fair trial, and a reliable penalty determination.
Y.M. testified about the victims’ personal characteristics
and the emotional and financial impact of their deaths on her.
During her testimony, two photographs of the victims and a
short videotape of the children were displayed. At one point, the
prosecutor asked how she felt when she thought about her
children these days. She responded, “I feel a lot of pain for not
having been able to do anything for them. I wish I could turn
time back and give my life for them. I still remember the day
when I was being beaten, and the thing that terrifies me the
most is having been unable to do anything for them. Their little
faces. Their desperation at seeing how their mother was being
beaten, and me unable to do a thing for them.” Following her
response, the court recessed.
Once her testimony concluded, the defense moved for a
mistrial. The defense argued that Y.M.’s testimony was so
emotionally charged that it was impossible for the jury to make
a dispassionate decision about life or death. The defense also
argued that when she left the courtroom during the recess, she
cried “very loudly” in the hallway. Although the trial judge did
not hear her crying, the prosecutor and the courtroom deputy
did, but when the deputy went into the hallway, he found her
quiet and no jurors present. The court denied the motion,
stating that at the end of the morning, “when [Y.M.] was
describing the helplessness she felt as she saw her children’s
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fear for her, she began to cry uncontrollably.” Her emotionalism
lasted “about half a minute,” and the court recessed. She was
“remarkably composed throughout most of her testimony.” She
became “slightly tearful” on one or “[p]erhaps more than one
other occasion” but “not to a point where, other than to cause
her to pause before answering a question, it disrupted [the]
proceedings in any way.” The court concluded that what the jury
saw and heard was not “particularly emotionally charged” given
the facts of the case.
“Victim impact evidence is admissible during the penalty
phase of a capital trial. [Citation.] Section 190.3, factor (a)
permits the prosecution to establish aggravation by offering
evidence of the circumstances of the crime, including the impact
of the crime on surviving victims and on a victim’s family.”
(People v. Peoples, supra, 62 Cal.4th at pp. 752–753.) “ ‘[T]he
trial court is vested with considerable discretion in ruling on
mistrial motions.’ ” (People v. Hines, supra, 15 Cal.4th at
p. 1038.)
We see no basis to conclude that the trial court abused its
discretion. Y.M.’s testimony spanned less than one day,
comprising around 15 transcript pages, and it concerned the
victims and the impact of their deaths on her. We have routinely
permitted the admission of similar evidence. (See, e.g., People
v. Brady (2010) 50 Cal.4th 547, 574–579 [testimony about
victim’s character, immediate reaction to victim’s death, and
impact of victim’s death and videotape depicting victim]; People
v. Peoples, supra, 62 Cal.4th at p. 753 [photographs of victim].)
We have also stated that it is “a normal human response to the
loss of a child” for a mother to cry on the stand, and that
circumstance “does not render that testimony inflammatory.”
(People v. Verdugo (2010) 50 Cal.4th 263, 298.) Even though
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Juarez argues that we have unreasonably expanded the holding
in Payne v. Tennessee (1991) 501 U.S. 808 (Payne) to allow such
testimony, he presents “no persuasive reason for us to overrule
our own decisions regarding victim-impact evidence.” (People v.
Weaver (2012) 53 Cal.4th 1056, 1086.) The trial court gave a
reasoned ruling that Y.M.’s testimony did not invite an
irrational response from the jury, and we conclude that her
testimony did not render the trial fundamentally unfair.
D. Execution-impact Evidence
The trial court ruled that Juarez could not introduce
testimony about the anticipated impact of his execution on his
family unless it illuminated some positive quality in his
background. Over his objection, the court accordingly instructed
the jury: “You may not consider sympathy for the defendant’s
family respecting the possibility of his execution except as it may
illuminate some positive quality of the defendant’s background
or character.” Juarez contends this rendered his trial
fundamentally unfair and violated his constitutional rights to
present a defense, due process, equal protection, and a reliable
penalty determination. He does not argue that the court
improperly excluded specific testimony; rather, he argues that
the impact of an execution is a circumstance of the crime and
asks us to reexamine our contrary position.
We have held that “[t]he impact of a defendant’s execution
on his or her family may not be considered by the jury in
mitigation.” (People v. Bennett (2009) 45 Cal.4th 577, 601;
accord, People v. Williams (2013) 56 Cal.4th 165, 197–198.)
None of the reasons offered by Juarez persuades us to revisit our
precedent. First, he argues that the Eighth Amendment does
not permit excluding evidence that might have mitigating value.
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“But nothing in that constitutional rule ‘limits the traditional
authority of a court to exclude, as irrelevant, evidence not
bearing on the defendant’s character, prior record, or the
circumstances of his offense.’ ” (People v. Wall, supra, 3 Cal.5th
at p. 1071; see People v. Gonzales (2012) 54 Cal.4th 1234, 1286–
1287.) Second, he argues that our position conflicts with Payne,
supra, 501 U.S. 808, but it does not. (Cf. People v. Bennett, at
p. 602 [Payne made clear that “a defendant must be allowed to
introduce mitigating evidence ‘concerning his own
circumstances,’ ” but “execution-impact evidence is irrelevant
under section 190.3 because it does not concern a defendant’s
own circumstances”].) Finally, he observes that some courts
have admitted execution-impact evidence, but none of the cases
he cites are binding on this court.
E. Prosecutorial Misconduct
Juarez contends that the prosecutor engaged in repeated
misconduct that impermissibly skewed his case toward death.
He refers specifically to the prosecutor’s conduct concerning the
jail visitation logs, Dr. Dougherty, and Orozco. Even though we
have found and assumed misconduct, we conclude that for the
reasons discussed, the misconduct, considered singly or
cumulatively, “did not cause reversible prejudice” or amount to
“a ‘pattern’ of misconduct so ‘egregious’ that it infected the trial
with fundamental unfairness.” (People v. Shazier (2014)
60 Cal.4th 109, 150, 151; see also People v. Mendoza (2007)
42 Cal.4th 686, 705, 706, 709.)
VI. OTHER ISSUES
A. International Law
Juarez contends that he was deprived of a fair trial and a
reliable penalty in violation of customary international law as
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informed by the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the
American Declaration of the Rights and Duties of Man, and the
International Convention Against All Forms of Racial
Discrimination. But we have held that “ ‘[i]nternational law
does not prohibit a sentence of death when, as here, it was
rendered in accordance with state and federal constitutional and
statutory requirements.’ ” (People v. Sattiewhite (2014)
59 Cal.4th 446, 489; see also People v. Hillhouse (2002)
27 Cal.4th 469, 511.)
In addition, he contends that because racial
discrimination permeates the death penalty, capital
punishment itself violates international law and norms. He
relies on statistical studies that purport to show racial
disparities in the charging, sentencing, and imposition of the
death penalty, particularly with respect to African-American
defendants. We have rejected similar arguments and do so
again here. (See, e.g., People v. Hajek and Vo, supra, 58 Cal.4th
at p. 1253; People v. Martinez (2003) 31 Cal.4th 673, 703; People
v. Jenkins (2000) 22 Cal.4th 900, 1055.)
B. Challenges to the Death Penalty
Juarez raises a number of challenges to the
constitutionality of California’s death penalty statute that we
have repeatedly rejected. Juarez provides no persuasive reason
to revisit the following precedent:
The death penalty statute as construed by this court does
not fail to perform the narrowing function required by the
Eighth Amendment. (People v. Schmeck (2005) 37 Cal.4th 240,
304.) Disputing this, Juarez argues in his reply brief that we
have misinterpreted Pully v. Harris (1984) 465 U.S. 37 and
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Tuilaepa v. California (1994) 512 U.S. 967 in so holding. His
argument does not persuade us to revisit our conclusion.
Juarez claims that the failure to require the jury
unanimously find true the aggravating factors relied on violates
the federal Constitution. “ ‘Nothing in the federal Constitution
requires the penalty phase jury to make written findings of the
factors it finds in aggravation and mitigation[] [or] agree
unanimously that a particular aggravating circumstance
exists.’ ” (People v. Williams (2013) 58 Cal.4th 197, 295.) Nor is
the death penalty statute unconstitutional for not requiring
“findings beyond a reasonable doubt that an aggravating
circumstance (other than Pen. Code, § 190.3, factor (b) or (c)
evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.” (People v. Rangel (2016)
62 Cal.4th 1192, 1235.) The high court’s recent decisions
interpreting the Sixth Amendment’s jury trial guarantee do not
alter our conclusions. (See Rangel, at p. 1235; People v. Lee
(2011) 51 Cal.4th 620, 651–652; see also McKinney v. Arizona
(2020) __ U.S. __, __ [140 S.Ct. 702, 708] [“Ring [v. Arizona
(2002) 536 U.S. 584] and Hurst [v. Florida (2016) __ U.S. __
[136 S.Ct. 616]] did not require jury weighing of aggravating
and mitigating circumstances”].)
“ ‘ “ ‘The sentencing factor of “circumstances of the crime”
(§ 190.3, factor (a)) is not unconstitutionally vague and does not
result in the arbitrary and capricious imposition of the death
penalty.’ ” ’ ” (People v. Powell, supra, 6 Cal.5th at p. 193.)
“ ‘The jury may properly consider evidence of unadjudicated
criminal activity under section 190.3, factor (b) [citation], [and]
jury unanimity regarding such conduct is not required
[citation].’ ” (Ibid.) The trial court does not violate a defendant’s
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constitutional rights by failing to instruct the jury it must
unanimously agree the defendant committed a prior crime
under section 190.3, factor (c). (People v. O’Malley, supra,
62 Cal.4th at p. 1014.)
The trial court’s instructions need not “delete inapplicable
sentencing factors, delineate between aggravating and
mitigating circumstances, or specify a burden of proof either as
to aggravation (except for other crimes evidence) or the penalty
decision.” (People v. Schmeck, supra, 37 Cal.4th at p. 305.) “Nor
are potentially mitigating factors unconstitutionally limited by
the adjectives ‘extreme’ and ‘substantial’. . . .” (Ibid.) The
sentencing factors are not vague and ill-defined. (Ibid.)
The absence of written findings, intercase proportionality
review, and disparate sentence review does not render the
statute unconstitutional. (People v. Pearson (2013)
56 Cal.4th 393, 478; People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 469; Ervine, supra, 47 Cal.4th at p. 811.)
Imposition of the death penalty does not violate the Eighth
Amendment’s prohibition against cruel and unusual
punishment. (People v. Adams (2014) 60 Cal.4th 541, 581–582.)
Finally, these asserted flaws, considered together, do not
render the statute unconstitutional. (See People v. Pearson,
supra, 56 Cal.4th at p. 479.)
C. Cumulative Prejudice
Juarez contends that the combined errors require reversal
of his convictions and sentence. He additionally contends that
to the extent errors at the guilt phase do not require reversal of
his convictions, they nevertheless require reversal of his
sentence.
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We have assumed error but found no prejudice at the
preliminary hearing by the use of the unsworn, uncertified
interpreter, the use of Juarez’s interpreter to interpret Y.M.’s
outburst, and Juarez’s absence when his interpreter did so. We
have declined to decide whether sufficient evidence supported
the theory of felony murder for the murders of J.M. and A.M.,
and while we have found sufficient evidence supported the
theory of felony murder for the murders of José and Juan, we
have assumed that even if there was no sufficient evidence, we
still would uphold each of the first degree murder verdicts. We
have additionally assumed or found error but no prejudice at
trial regarding the difficulties that made it hard to hear the
court proceedings, the accuracy of interpreters, the failure to
timely advise Juarez of his right to have his consulate notified,
the trial court’s denial of his motions to suppress evidence
obtained during Detective Summers’s entry into the trailer and
Juarez’s statements made during the walk-through, Deputy
Walker’s testimony about Y.M.’s gesture, Orozco’s testimony
about Juarez’s talk of “being with a girl,” and the prosecutor’s
use of the jail visitation logs and contact with CMFG.
Considering these actual or assumed errors altogether, we
conclude that their cumulative effect does not warrant reversal
of his convictions or sentence. (See People v. Page (2008)
44 Cal.4th 1, 54; People v. Panah, supra, 35 Cal.4th at p. 501.)
103
PEOPLE v. SUAREZ
Opinion of the Court by Liu, J.
VII. CONCLUSION
We affirm the judgment in its entirety.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C.J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
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PEOPLE v. SUAREZ
S105876
Concurring Opinion by Justice Liu
Today’s opinion recognizes that while “ ‘the State has a
strong interest in having jurors who are able to apply capital
punishment within the framework state law prescribes,’ ” a
criminal defendant “ ‘has the right to an impartial jury drawn
from a venire that has not been tilted in favor of capital
punishment by selective prosecutorial challenges for cause.’ ”
(People v. McKinzie (2012) 54 Cal.4th 1302, 1328.) “A
prospective juror is properly excluded if he or she is unable to
conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate.” (Ibid., internal
quotation marks omitted.) Here we decline to reconsider our
decisions upholding the death qualification process. (Maj. opn.,
ante, at pp. 16–21.)
It bears mention, however, that although the United
States Supreme Court in Lockhart v. McCree (1986) 476 U.S.
162, 168–173, rejected arguments that the death qualification
process leads to conviction-prone juries, “a range of studies have
continued to emerge post-Lockhart that build on the research
[submitted in Lockhart] showing that death-qualified jurors are
quite different from non-death-qualified jurors.” (Levinson et
al., Devaluing Death: An Empirical Study of Implicit Racial
Bias on Jury-Eligible Citizens in Six Death Penalty States (2014)
89 N.Y.U. L.Rev. 513, 569, fn. 247 (hereafter Levinson); see id.
at pp. 543, 568–569 [critiquing Lockhart and citing studies
finding that death-qualified jurors tend to be more conviction-
PEOPLE v. SUAREZ
Liu, J., concurring
prone than ordinary jurors]; Rozelle, The Principled
Executioner: Capital Juries’ Bias and the Benefits of True
Bifurcation (2006) 38 Ariz. St. L.J. 769, 784–785 [study of 1,201
capital jurors from over 350 trials found that death-qualified
jurors have disproportionately punitive orientations, are more
likely to hold racial stereotypes, and are more likely to be pro-
prosecution and conviction-prone]; see also Butler, Death
Qualification and Prejudice: The Effect of Implicit Racism,
Sexism, and Homophobia on Capital Defendants’ Right to Due
Process (2007) 25 Behav. Sci. & L. 857; Butler & Wasserman,
The Role of Death Qualification in Venirepersons’ Attitudes
Toward the Insanity Defense (2006) 36 J. Applied Soc. Psych.
1744.)
In a multifaceted study of 445 jury-eligible citizens in six
death penalty states, including California, researchers found
that “the process of death qualification results in capital jurors
with significantly stronger implicit racial biases . . . and explicit
racial biases than jury-eligible citizens generally.” (Levinson,
supra, 89 N.Y.U. L.Rev. at p. 569; see id. at pp. 559–560.) The
study further found that “death-qualified juries possess stronger
implicit biases because the process results in the
disproportionate elimination of non-White jurors.” (Ibid., italics
omitted; see id. at pp. 559.)
This latter finding coheres with a substantial body of
evidence that Black jurors are significantly more likely than
Whites to be excused for cause. (Frampton, For Cause:
Rethinking Racial Exclusion and the American Jury (2020) 118
Mich. L.Rev. 785, 792–805 (hereafter Frampton); Cover, The
Eighth Amendment’s Lost Jurors: Death Qualification and
Evolving Standards of Decency (2016) 92 Ind. L.J. 113, 136–138
(hereafter Cover) [examining 1,445 venire members in 11
2
PEOPLE v. SUAREZ
Liu, J., concurring
capital trials in Louisiana between 2009 and 2013]; Eisenberg,
Removal of Women and African-Americans in Jury Selection in
South Carolina Capital Cases, 1997–2012 (2017) 9 Ne. U. L.Rev.
299, 316, 335–337 (hereafter Removal); Eisenberg et al., If It
Walks Like Systematic Exclusion and Quacks Like Systematic
Exclusion: Follow-Up on Removal of Women and African-
Americans in Jury Selection in South Carolina Capital Cases,
1997–2014 (2017) 68 S.C. L.Rev. 373, 387–388.) In many cases,
the magnitude of racial disparities is greater among jurors
excused for cause than among jurors excused through
peremptory strikes. (See Frampton, at pp. 800–801; Removal,
at pp. 335–339, 342–344.) And this phenomenon is not limited
to capital cases. (See Frampton, at pp. 794–795 [study of 316
Louisiana criminal trials with 14,616 prospective jurors, 62
percent White and 33 percent Black, showed that jurors
challenged by prosecutors for cause were 59 percent Black and
34 percent White, while jurors targeted by prosecutors for
peremptory strikes were 54 percent Black and 41 percent
White]; id. at pp. 796–798 [study of 83 Mississippi criminal
trials with 4,717 prospective jurors, 60 percent White and 34
percent Black, showed that jurors challenged by prosecutors for
cause were 80 percent Black and 21 percent White, while jurors
targeted by prosecutors for peremptory strikes were 68 percent
Black and 32 percent White].)
Thus, although much attention has appropriately been
paid to the inefficacy of Batson v. Kentucky (1986) 476 U.S. 79in combating racial discrimination in peremptory strikes, there
is significant evidence that removal of jurors for cause is an
equally if not more significant contributor to the exclusion of
Black jurors, which may result in juries with higher levels of
implicit bias.
3
PEOPLE v. SUAREZ
Liu, J., concurring
Here, defendant raises these concerns but does not tie
them to the record in this case. It would be difficult to do so. As
one observer explains, “This data is buried in attorneys’ notes
and in transcripts of the jury voir dire proceedings in individual
capital cases. Strike data are enormously labor intensive to
obtain and to aggregate in a meaningful way.” (Cover, supra, 92
Ind. L.J. at p. 130.) Thus, a starting point for addressing this
issue may be to require public reporting of the demographic
composition of jury venires and of the prospective jurors who are
excused for cause. (See, e.g., id. at pp. 148–149 [proposing
legislation or a rule of court to require reporting of such data].)
Transparency is an important first step to understanding the
extent to which racial dynamics affect jury selection.
Several efforts are presently underway in California to
make juries more inclusive and representative of our
communities. These include a bill to reform the legal framework
for rooting out discrimination in the exercise of peremptory
strikes (Assem. Bill No. 3070 (2019–2020 Reg. Sess.) as
amended July 8, 2020) and a bill to expand the jury pool to
include all people who have filed a state tax return (Sen. Bill No.
592 (2019–2020 Reg. Sess.)). Other proposals may soon be in
the works. (See Cal. Courts Newsroom, California Supreme
Court Names Jury Selection Work Group (July 6, 2020).) If the
goal of these efforts is to better ensure that juries reflect a cross-
section of our communities, then the topics worthy of attention
4
PEOPLE v. SUAREZ
Liu, J., concurring
may include whether current standards and processes for
excusal of prospective jurors for cause contribute to racial
disparities in jury selection and to implicit biases in the
resulting petit juries.
LIU, J.
I Concur:
CUÉLLAR, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Suarez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S105876
Date Filed: August 13, 2020
__________________________________________________________________________________
Court: Superior
County: Napa
Judge: Scott Snowden
__________________________________________________________________________________
Counsel:
Snedeker, Smith & Short, Michael R. Snedeker and Lisa R. Short for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Alice B. Lustre and Leif M. Dautch, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael R. Snedeker
Lisa R. Short
Snedeker, Smith & Short
PMB 422, 4110 SE Hawthorne Blvd.
Portland, OR 97214-5246
(503) 234-3584
Leif Dautch
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5089