         IN THE SUPREME COURT OF
                CALIFORNIA

                        THE PEOPLE,
                   Plaintiff and Respondent,
                               v.
                      JOSE LUIS LEON,
                   Defendant and Appellant.

                            S143531

               Riverside County Superior Court
                          RIF109916



                       January 23, 2020

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakuaye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.

Justice Cuéllar filed a concurring opinion.
                       PEOPLE v. LEON
                            S143531


              Opinion of the Court by Corrigan, J.


       While his estranged girlfriend was studying abroad,
defendant Jose Luis Leon went to her home and fatally stabbed
her grandmother and 13-year-old brother. He also attacked her
grandfather with a hatchet. Although admitting the crimes, he
claimed he acted in imperfect self-defense. He was convicted of
two counts of murder and one count of attempted murder, with
a multiple-murder special circumstance and enhancements for
personal use of a deadly weapon and infliction of great bodily
injury.1 The jury fixed the penalty at death for one murder and
life imprisonment without the possibility of parole for the other.
The court imposed an additional sentence of life without
possibility of parole plus four years for the attempted murder.
We affirm the judgment.
                       I. BACKGROUND
     A. Guilt Phase
         1. Defendant’s Relationship with the Ragland Family
      Veronica Haft and her younger brother, Austin Perez,
lived with their grandparents, Hope and Marion Ragland. Hope



1
     Penal Code sections 187, subdivision (a), 664/187,
subdivision (a),      190.2,       subdivision (a)(3),    12022,
subdivision (b)(1), 12022.7, subdivision (a), and 1192.7,
subdivision (c)(8) & (c)(23). All statutory references are to the
Penal Code unless otherwise stated.


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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


was a nurse, and Marion was retired.2 They had raised Veronica
since childhood. Austin came to live with them around age
seven. Veronica was particularly close to Hope, whom she called
“my best friend.”
      Veronica began dating defendant when she was 16. He
said he was 19 but was actually 21. He had moved to the country
from Mexico two years earlier and spoke only limited English.
Veronica and her grandmother were fluent in Spanish.
Veronica’s brother and grandfather did not know Spanish and
spoke with defendant in English.
      The first year of their relationship was happy. Defendant
spent time at the Ragland home and was included in their
family activities. Hope initially welcomed defendant’s presence,
cooking for him and joining the couple on outings. A few months
into the relationship, Hope purchased a red Ford Mustang for
defendant, who agreed to make monthly payments to her. He
kept up with the payments initially but later began missing
them.
      After defendant’s parents moved back to Mexico, he rented
an apartment from a woman Hope visited for tarot card
readings.    Defendant believed the two were involved in
witchcraft. Around this time, defendant stopped working. He
spent his days at the Ragland house and became increasingly
possessive and jealous. Near the end of her senior year,
Veronica suggested breaking up. Defendant responded by
angrily punching his windshield and grabbing Veronica’s wrist
as she tried to leave the car.


2
      To avoid potential confusion, we refer to family members
by their first names.

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


      Hope argued with defendant frequently and warned
Veronica that the relationship seemed abusive. Once, the family
came out of church to find defendant waiting by their car. When
Hope asked why defendant could not leave them alone, he
insulted her in Spanish. Hope tried to slap him but missed.
Defendant then ran around the parking lot laughing while Hope
chased him.
      Veronica attended the University of California, Riverside
and secured a full scholarship to spend the spring term studying
at Oxford. When told, defendant begged her not to go. This
angered Hope, who told defendant to stop ruining Veronica’s
life. During the argument, Hope followed the couple outside
and, at one point, moved as if to pick up a brick from the
walkway. Veronica told Austin to call the police. Hope did not
pick up the brick, and no one was injured.
      Veronica went to England in mid-February 2003.
Although she tried to end the relationship before leaving,
defendant called her often. When he began calling 20 to 25
times a day, she turned off her phone. Defendant called on April
29, begging her to return to him. She spent more than two hours
explaining the relationship was over. Defendant blamed Hope,
but Veronica assured him the decision was hers. By the end of
the conversation, defendant’s tone had changed, and Veronica
thought he had finally accepted the situation. Two days later,
on May 1, Veronica answered a final call from defendant, who
said, “No matter what happens . . . I’ll always love you.”
Irritated, Veronica hung up. The attacks happened that night.
         2. Testimony Regarding the Night of the Murders
     The Raglands lived in a gated community near a small
shopping center.  Two video store employees who knew

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


defendant saw him shortly before 6:00 p.m. on May 1, 2003.
Monique Perez saw him driving a red Mustang slowly around
the parking lot. Not long thereafter, he walked toward the
Raglands’ house. Yvette Alvarez also saw him sometime after
sundown, walking back at a faster pace.
      Consistent with his usual routine, Marion left home
around 6:20 p.m. to walk the family dog. Austin was at his
friend Osvaldo Magdaleno’s house, directly across the street. At
some point, Magdaleno noticed defendant standing outside the
community’s gate. Pedestrian entrances to the property were
kept locked, but defendant walked inside when a resident
opened the gate to drive out. While playing outside, Magdaleno
saw defendant inside the Ragland house, looking out the
window. Austin went home but could not open the front door.
No one answered his knock, so he jumped the back fence.
       Marion returned home around 8:15 p.m., finding it odd
that both the security screen and front door were locked. The
moment he stepped inside, he was hit in the head. The noise of
the impact was so loud Marion thought he had been shot.
Fearing he had interrupted a robbery, he backed out and went
to the shopping center for help. He managed to enter the video
store with his head bleeding and asked the employees to check
on his wife. Alvarez called 911. Marion sustained a severe
concussion and skull fracture. Seventeen staples were required
to close the wound.
      Crime scene investigators found two bodies in the house.
Hope had been killed while sitting in a lounge chair, but her
body was stuffed into a kitchen closet. She had been stabbed
eight times in the throat, chest, and abdomen. The neck wound
pierced her larynx and jugular vein. Her lungs, pulmonary

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


artery, and aorta were also perforated. Austin lay in the
kitchen, facedown in a pool of blood. Blood spatter evidence
indicated he had been stabbed near a door leading to the garage
then dragged into the kitchen. He had been stabbed 12 times.
The wounds severed the jugular vein and carotid artery and
perforated the liver, stomach, and aorta.
      The contents of Hope’s purse had been dumped on the
floor, and “Austin is a bad student” was written on the living
room mirror in Hope’s lipstick. The upstairs rooms had been
ransacked. In the backyard, investigators found a hatchet and
a knife with a bent and bloody blade. A ski mask and vinyl
gloves were later found in defendant’s car, and his keys bore
remnants of blood.
         3. Defendant’s Police Interviews and Walkthrough
      After the murders, defendant arrived on time for his 10:00
p.m. shift at a local dairy. The police brought him to the station
for questioning the next morning. He waived his Miranda
rights3 and spoke with the police.
       During the initial interview, defendant adamantly denied
committing the killings or even entering the Ragland house. In
his first version, he said he went to the house to give Hope a car
insurance payment but left because Marion was home. Marion
did not like him and did not want him there while Veronica was
away. Defendant claimed he had dinner then returned around
7:30 p.m. No one answered the door, so he sat on the porch but
left when he saw Marion returning.
      Questioned again the next morning, defendant said he
was fearful and angry with Hope. He believed she put things in

3
     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


his food and practiced witchcraft to ruin his relationship with
Veronica. The day before the murders, Hope told defendant
Veronica was having fun in England and would go many places
without him after her return. Defendant became angry and
emotional, as if “the devil got inside of me.”4 When he went to
the house the next day, Hope taunted him with Veronica’s
happiness at Oxford. Defendant said, “[T]hat pissed me off so
much that we started to fight. . . . a lot. She pulled out a knife
. . ., but she didn’t do anything to me.” Hope tried to call the
police, but he took the phone away. Defendant explained, “Then
I remembered all the bad that she was doing to me, and I saw
her with a look on her face that wasn’t hers. Like with the look
of a witch. [¶] And it scared me so much. And in a moment of
desperation and everything we started to fight. And that was
when I grabbed the knife that was there. [¶] And I started
stabbing, and stabbing her. And then her son came in with a
skateboard and he threw the skateboard at me and we also
started to fight. . . . and I started to feel that everything got
dark.” He put Hope’s body in a closet afterward because he was
afraid of her, and he ransacked the house because he was
looking for Veronica’s new phone number. When Marion
arrived, defendant hit him and fled.
      Shortly after this interview, defendant provided
additional details during a videotaped walkthrough at the crime
scene. He and Hope argued. She stood and tried to slap him,
but he grabbed her and took her phone. Hope retreated but
came back at him holding a knife. They fell to the floor fighting.


4
      Defendant spoke Spanish in the interviews.           All
quotations attributed to him are to the English translation in
the clerk’s transcript.

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


Hope threatened to kill him, but he rolled on top of her and
grabbed the knife. Hope threw him off, then lunged at him and
impaled herself on the knife, afterward exclaiming, “What did
you do to me?” Defendant “lost [his] mind” when he saw the
blood and stabbed Hope repeatedly. When Austin came in,
defendant dropped the knife. Seeing Hope, Austin yelled and
tried to hit him with his skateboard. Defendant closed the
sliding door so the neighbors would not hear the commotion. He
took away the skateboard and tried to calm Austin, but the child
ran toward the front door yelling for help. Defendant grabbed
him and kicked the door shut. Austin struggled and tried to
escape, so defendant stabbed him. Defendant said he sat crying
for several minutes then looked for Veronica’s new phone
number. His anger returned. He went back to Hope’s body and
saw her lipstick on the floor. He stuffed her into a closet, then
dragged Austin’s body across the floor and wrote the message in
lipstick on the mirror. Worried that Marion would return soon,
defendant took a hatchet and a crowbar from the garage and
waited for him in the living room. When Marion opened the
front door, defendant threw the hatchet at him and fled. He
dropped the knife outside. Defendant claimed everything he did
was in self-defense.
     B. Penalty Phase
         1. Prosecution Evidence
      Veronica described Hope as happy, outgoing, and much
loved by her friends and family. A nurse for 30 years, she cared
greatly about her patients and was respected by her coworkers.
She attended church every Sunday and gave Veronica a
religious upbringing.



                                  7
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


      Veronica considered Hope her mother and “best friend.”
The two frequently did things together and expressed their love
for each other. Hope encouraged Veronica to work hard in school
and take advantage of opportunities she never had. When
Veronica left for England, both became emotional because they
were not used to being apart. Veronica was devastated to learn
of the murders. She continued living with her grandfather, but
their life was lonely, especially at holidays. She was no longer
comfortable in the house, and they moved five months after the
crimes. Veronica had difficulty with the loss and will always
feel guilty for inviting defendant into their family.
     Hope’s nephew remembered her generosity. She cooked
breakfast and dinner for the household every day, even though
she worked full time. Holidays were especially hard for the
family now.
      Veronica testified that Austin came to the Raglands from
a foster home. His birth mother abused drugs and had lost
custody of her four children. Austin initially knew Hope as
“grandma,” but after a while began calling her “mom.” Hope
took him to church regularly. Austin was polite, respectful, and
very popular. After he died, fellow students planted a tree in his
memory. Marion enjoyed spending time with Austin. They
regularly walked the dog, played catch, and worked outside
together. He missed having Austin and Hope in his life and now
spent most of his time alone.
         2. Defense Evidence
       Defendant grew up in a town about three hours south of
Mexico City. He lived with his parents and three younger sisters
in a small house that, for many years, lacked indoor plumbing.
All of his extended family lived on the same dirt road. One sister

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


testified the home was humble but filled with love. Defendant
and his eldest sister took a university entrance examination
together but were not accepted. Defendant dreamed of marriage
and a family. He enjoyed rural life and wanted to work with
animals.
      Around age 12, defendant began working with a neighbor,
curing hides to make leather jackets. He worked half days while
in school, then later full time. He was trustworthy, responsible,
and hard-working. At age 16, when he was finishing school,
defendant worked weekends at a pig ranch. His manager
trusted him to work alone and considered him a good worker.
At 17, defendant began training with his uncle to become a truck
driver. The uncle thought defendant unusually naïve due to his
strict and isolated upbringing. Defendant typically gave the
money he earned to his mother.
      Defendant’s father once came to the United States but
soon left because he missed the family. The father later
returned to America, and defendant accompanied his mother to
join him. They traveled 15 days and made four unsuccessful
attempts before finally crossing the border at Sonora in 2000.
Defendant never returned to Mexico. His mother and sisters
missed him and hoped he would not be executed.
      Defendant’s girlfriend from Mexico testified that they
began dating as teenagers. He often ate with her family and
helped with chores. Her parents liked him and treated him like
a son. The girlfriend’s parents testified that they trusted
defendant and believed he would have made a good husband.
The couple loved each other and often talked of marriage and
children. Defendant left for America during the girlfriend’s first
year at university. While parting was difficult, defendant felt

                                  9
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


he had to go to protect his mother. Initially, the couple spoke
frequently by phone, but the relationship faded and defendant
said he had met someone else.
       A deputy sheriff who worked for two years at defendant’s
jail testified that he never had to report defendant for rules
violations.    Defendant took adult education courses and
correspondence courses in religion. A correctional consultant
interviewed defendant and reviewed his county jail history,
finding no indication of future dangerousness. The consultant
believed defendant could be institutionalized and avoid future
problems. Once, when another inmate tried to intimidate him,
defendant struck the man in the jaw, a response the witness
considered appropriate under the circumstances. Afterward,
the two interacted without further animus. Unlike most
inmates facing capital charges, defendant had successfully
shared living quarters with at least 15 others. The witness was
confident that, if given a life sentence, defendant could be
successfully housed in a level 4 prison. Defendant had no prior
criminal record in Mexico or the United States.
                        II. DISCUSSION
     A. Guilt Phase Issues
         1. Admissibility of Defendant’s Confessions
      Defendant contends the court erred in admitting his
confessions, both because he did not knowingly and intelligently
waive his Miranda rights and because he was denied his right
to consular notification under the Vienna Convention on




                                 10
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


Consular Relations, April 24, 1963, 21 U.S.T. 77 (Vienna
Convention).5 The statements were properly admitted.
            a. Background
       Before trial, defendant moved to suppress his statements.
The court reviewed a videotape and transcript of defendant’s
first interview and heard testimony from an interrogating
officer and a clinical psychologist.
       Defendant was initially interviewed on May 2, 2003 at the
Corona Police Department by Detective Ron Anderson and
Corporal John Rasso. Rasso is a native Spanish speaker and
certified as a bilingual officer. Rasso brought defendant water
at the start of the interview. Before any mention was made of
the murder, Rasso read defendant his Miranda rights in
Spanish from a preprinted form. When admonishing in
Spanish, Rasso takes care that the subject understands what is
said. There are multiple Spanish dialects, and words in one may
have a different meaning in others. Rasso “made sure”
defendant would understand the dialect he chose. It appeared
defendant understood Rasso, and Rasso was able to understand
him. Rasso asked if defendant understood each right and
defendant confirmed that he did. Defendant initially responded
“uhm-hm,” but Rasso asked him to clarify “yes or no.”
Defendant answered “yes” then, after a pause asked, “[D]oes my
girlfriend already know” about the murders? Focusing on the
Miranda issue rather than a discussion of the facts, Rasso



5
      Defendant contends admission of the statements violated
his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments, analogous state constitutional provisions, and the
Vienna Convention.

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


responded, “[Y]ou have these rights with you. Do you want to
talk about what happened last night or what?”
      When defendant replied in the affirmative, Rasso gave
him the form, which lists the rights in both Spanish and English
and asks whether, with those rights in mind, the subject wishes
to speak with police. Rasso crossed out the English portion of
the form to indicate that the rights were given in Spanish.
Rasso recorded defendant’s Spanish replies that he both
understood his rights and he wished to speak with officers.
Defendant, Rasso, and Anderson all signed the form.
      Defendant denied the murders and insisted he had not
even gone into the house. The next day he was interviewed a
second time, then walked through the crime scene with
investigators. Before the interview, Rasso told defendant,
“[Y]ou always have the right to, not, not talk to us. To not tell
us anything, and . . . that way yesterday, . . . where I read you
those rights.” Defendant responded affirmatively. Rasso asked
again, “[Y]ou understand that?” Defendant nodded. During
that second interview, defendant confessed. In the subsequent
walkthrough, Rasso reminded defendant of the rights he had
read to him and said, “[Y]ou have [those rights] with you right
now.” He asked defendant to tell him if he wanted to exercise
his rights.
       Defense expert Dr. Francisco Gomez tested defendant to
assess his ability to understand the Miranda advisements.
Defendant consistently performed in the borderline range on
intelligence tests, indicating low intellectual functioning. He
reported failing sixth grade, which was consistent with “mild




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                          PEOPLE v. LEON
                  Opinion of the Court by Corrigan, J.


retardation” or borderline intelligence.6 Gomez administered
screening tests for intelligence. He did not go on to assert
whether defendant was intellectually disabled. He was not
asked, nor did he give, a specific IQ score for defendant.
      Defendant read, in Spanish, at a third to fifth grade level.
In Gomez’s view, understanding the Miranda warnings requires
at least seventh grade level reading comprehension. Defendant
was depressed, with low self-esteem and a “dependent”
personality. He was passive, anxious, and agreeable, “a
follower” who might “be easily manipulated.” Gomez detected
no symptoms of any thought disorder.
      Although defendant had been in the United States for
some time, his acculturation was very low. He had been
sheltered for most of his life, living with family and securing jobs
through friends. Because he grew up in a small town and had
never been in trouble, defendant’s knowledge of the legal system
came mainly from Mexican soap operas. He had the distorted
view that American police are very aggressive. For example, he
once interrupted the officers to ask, “ ‘Are they gonna kill me
today, or are they gonna kill me tomorrow?’ ”
      Gomez acknowledged that defendant was initially read
the full Miranda warnings from a form, “which is the standard
way of doing it.” He was reminded of the rights twice on the
second day of questioning.     In addition, Corporal Rasso


6
       The witness used the terms “mildly retarded” and “mild
retardation.” In accordance with current law and usage, this
court now uses the phrase “intellectually disabled” except when
quoting or characterizing a source that uses older terms. (See,
e.g., People v. Boyce (2014) 59 Cal.4th 672, 717, fn. 24 (Boyce);
see also Stats. 2012, ch. 448.)

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


explained to defendant that the prosecutor who was with them
in the crime scene walkthrough was not his lawyer but was “the
attorney for . . . the law.” Defendant was told he would be given
his own attorney when he went to court. The third time
defendant was given the Miranda warnings, later in the
walkthrough, he agreed he would tell Rasso if he wanted to
invoke his rights, then added, “[W]ell anyway when I go to court
my attorney is going to be there right?” To Gomez, this response
implied defendant did not understand his rights. Gomez opined
that defendant lacked the intellectual ability to understand the
Miranda warnings as they were read to him. He only said he
understood because his passive nature inclined him to agree
with authority figures.
      On cross-examination, Gomez acknowledged that
defendant lied to police almost immediately after he agreed to
talk to them. The doctor was aware that there was writing in
English on “a window” at the crime scene. Gomez did not read
the statement but agreed that if it said, “Austin is a bad
student,” the statement would be grammatically correct. Gomez
was unaware that defendant was able to consult want ads, find
two different apartments, or move in and pay rent. He admitted
defendant “concocted a story.” He was unaware that after the
murders defendant went to the dairy and worked a normal shift.
During the first interview, when told the family had been killed,
defendant appeared to cry and denied involvement. Gomez
agreed that was a lie. Gomez asserted he was providing an
opinion based on “the best information available,” but he
admitted he did not read the police reports, interview
defendant’s coworkers, or do further evaluation for IQ testing.
     The court denied the suppression motion. Referring to
defendant’s demeanor in the videotaped interview, the court
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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


observed, “[T]here is not even a scintilla of evidence to suggest
that he did not understand the rights that were read to him. He
immediately responded in the affirmative, either through a nod
or audible answer, that he understood them, that he was willing
to waive them and talk to the officers.”             Defendant’s
understanding could also be inferred from the lies he told after
waiving his rights. The court noted, “Clearly, he knew he was
in trouble and he needed to come up with some sort of
explanation regarding the conduct he was being accused of, and
he set forth a story denying even being present.” Defendant
spoke clearly and without hesitation. He did not ask for
questions to be repeated. Furthermore, there was no evidence
the police induced his statements through any threats or
promises of reward. The court concluded it was “abundantly
clear” that defendant understood his rights and voluntarily and
intelligently waived them. The court acknowledged that the
preponderance of evidence standard applied but noted, “in fact,
if the standard were even higher, it would be beyond a
reasonable doubt that he understood his rights and voluntarily
and intelligently waived them.”
             b. Validity of the Miranda Waiver
       “To safeguard a suspect’s Fifth Amendment privilege
against self-incrimination from the ‘inherently compelling
pressures’ of custodial interrogation (Miranda, supra, 384 U.S.
at p. 467), the high court adopted a set of prophylactic measures
requiring law enforcement officers to advise an accused of his
right to remain silent and to have counsel present prior to any
custodial interrogation (id. at pp. 444-445).” (People v. Jackson
(2016) 1 Cal.5th 269, 338-339.) A suspect who has heard and
understood these rights may waive them. (Maryland v. Shatzer
(2010) 559 U.S. 98, 104; People v. Tate (2010) 49 Cal.4th 635,
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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


683.) “[T]he 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; see Moran v. Burbine (1986) 475 U.S. 412,
421; People v. Williams (2010) 49 Cal.4th 405, 425.) This
analysis requires an evaluation of both the defendant’s state of
mind and circumstances surrounding the questioning. (People
v. Nelson (2012) 53 Cal.4th 367, 375; see Fare v. Michael C.
(1979) 442 U.S. 707, 725.) On appeal, we accept the trial court’s
factual findings and credibility assessments if supported by
substantial evidence. (People v. Case (2018) 5 Cal.5th 1, 20;
People v. Duff (2014) 58 Cal.4th 527, 551; People v. Dykes (2009)
46 Cal.4th 731, 751.) “ ‘ “ ‘We independently determine from the
undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.’ ” ’
[Citations.] Where, as was the case here, an interview is
recorded, the facts surrounding the admission or confession are
undisputed and we may apply independent review.” (Duff, at
p. 551.)
      Defendant cites several circumstances to show he did not
knowingly and intelligently waive his Miranda rights. He
argues he was distressed and inattentive during the
advisements, merely affirming his understanding and agreeing
to talk out of a need to please authority figures. The
advisements were read to him all at once, rather than
individually, which defendant suggests gave him less time to
consider their significance. Defendant similarly contends his
signing of the waiver form was perfunctory. He looked at the
form only briefly and signed without reading. Separately,
relying on Gomez’s testimony, defendant argues he lacked the

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


cognitive ability, acculturation, or criminal justice experience to
make a knowing and intelligent waiver. To the contrary, ample
evidence supports the trial court’s conclusion that defendant
understood the Miranda rights and validly waived them.
       Defendant waived his rights at the beginning of the first
interview, before any questions were asked about the incident.
The videotape indicates that Rasso read the Miranda rights
slowly. He paused periodically and looked up. Defendant
nodded throughout this recitation and immediately responded
in the affirmative when asked if he understood “all of these
rights” as read to him. He also immediately and unequivocally
agreed to “talk about what happened last night” and signed the
Miranda waiver form without hesitation. In his responses and
demeanor, defendant exhibited no reluctance to speak with the
police. There is no suggestion, and no allegation, that the
officers used coercive interrogation tactics or made improper
promises. There is substantial evidence of voluntariness. (See
People v. Whitson (1998) 17 Cal.4th 229, 248-249; Colorado v.
Connelly (1986) 479 U.S. 157, 164.) Nor is there any allegation
that defendant did not understand the language of the
warnings. Rasso verbally advised defendant in Spanish, taking
care to match defendant’s dialect, and used a waiver form
printed in Spanish. (See People v. Cruz (2008) 44 Cal.4th 636,
666, 668-669.) Defendant claims he was distressed and
inattentive during the Miranda warnings because he reached
for a tissue and answered that he understood his rights only as
part of his question about whether Veronica was aware of the
murders. However, the videotape reveals a more subdued
reaction to news of the murders than defendant now depicts, and
he was advised of his rights before officers shared any details
about their investigation. Moreover, the tape reveals that

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                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


defendant’s affirmation of understanding was separate from his
question about his girlfriend. Defendant first nodded and said,
“mmhmm” when asked if he understood his rights. Prompted
for a verbal answer, defendant immediately responded, “yes.”
He did not ask about his girlfriend until approximately three
seconds later, during the silence while Rasso was preparing the
waiver form.
      The trial court rejected defendant’s claim that he lacked
the intellectual capacity and experience necessary to make a
knowing and intelligent waiver. Our independent review of the
videotape supports that conclusion. We have not decided that
any particular intelligence or experience level is required to
understand the Miranda warnings or to waive them. (See
People v. Kelly (1990) 51 Cal.3d 931, 951.)          Moreover,
defendant’s attempt to deceive the officers in his initial
interview indicates attentiveness and an awareness of his
circumstances. He was not so inattentive or distracted during
the questioning that he could not formulate a false account of
what happened.
      Defendant’s reliance on federal appellate cases is also
unavailing. The cases are not controlling precedent and are
factually distinguishable. In Cooper v. Griffin (5th Cir. 1972)
455 F.2d 1142, 1144-1145, the defendants were only 15 and 16
years old and demonstrated considerable intellectual deficiency.
They read at or below third grade level and had IQs ranging
between 61 and 67, well into the “mentally retarded” range. (Id.
at p. 1145.) Moreover, uncontroverted testimony from four of
their special education teachers established that neither was
capable of understanding the Miranda warnings, let alone the
consequences of waiving their rights. (Id. at pp. 1145-1146.) In
U.S. v. Garibay (9th Cir. 1998) 143 F.3d 534, 537-539, the
                                 18
                          PEOPLE v. LEON
                  Opinion of the Court by Corrigan, J.


defendant was interrogated in English even though his primary
language was Spanish and he had difficulty understanding
English. Even with this discrepancy, and the defendant’s
borderline intellectual disability, the court suggested the claim
would have been rejected if officers had obtained a written
waiver. (Id. at p. 539, fn. 10.)
       Apart from Gomez’s testimony, which the trial court was
entitled to reject, the record reveals no basis to conclude
defendant’s Miranda waiver was anything other than knowing,
intelligent, and voluntary. Having been admonished in his own
language, defendant, an adult, repeatedly affirmed both
verbally and in writing his understanding of the Miranda rights
and his desire to waive them. The trial court’s denial of the
suppression motion is well supported.
             c. Violation of Consular Rights
       It is undisputed that the officers did not alert defendant to
his right to have the Mexican consulate notified of his detention,
as required by section 834c and the Vienna Convention. The
court declined to suppress defendant’s statements as a remedy
because it found no prejudice flowed from the omission. While
a member of the consulate might have responded and advised
defendant to remain silent, the court found in regard to the
Miranda waiver that defendant understood his rights to counsel
and silence. Nevertheless, defendant “couldn’t wait [to] get
started talking about his lack of involvement in this. [¶] Yes,
ultimately his story changed and he did admit criminal conduct,
but he had no hesitation whatsoever, none, in talking to the
police officers.”
      “Article 36, paragraph 1(b), of the Vienna Convention
provides that law enforcement officials ‘shall . . . inform’

                                  19
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


arrested foreign nationals of their right to have their consulate
notified of their arrest, and if a national so requests, inform the
consular post that the national is under arrest.” (People v.
Mendoza (2007) 42 Cal.4th 686, 709.) Article 36 generally
requires that such an advisement be given “without delay.”
(Vienna Convention, supra, art. 36, at p. 23 (Article 36); see
§ 834c, subd. (b).) California implemented the Convention’s
requirements in section 834c. (See Howell, A Proposal for U.S.
Implementation of the Vienna Convention’s Consular
Notification Requirement (2013) 60 UCLA L.Rev. 1324, 1366.)
Our statute requires law enforcement to inform any “known or
suspected foreign national” of the right to consular notification
when the foreign national has been arrested, booked, or
detained for more than two hours. (§ 834c, subd. (a)(1).)
      Several minutes into his first interview, defendant told
the police he was “an illegal Mexican” and did not “have papers
here.” The officers therefore had reason to know he was a
foreign national. Moreover, while it is unclear how long
defendant had been detained when he declared his immigration
status, he was in police custody for well over two hours before
confessing to the murders.        Under these circumstances,
section 834c and Article 36 required the officers to advise
defendant of his right to consular notice. They failed to do so.
It should go without saying that law enforcement officers are
obligated to follow the Penal Code. The question here is whether
defendant is entitled to relief.
      We have assumed, without deciding, that Article 36 gives
foreign nationals individual, enforceable rights. (See In re
Martinez (2009) 46 Cal.4th 945, 957, fn. 3.) Even so, “Article 36
does not guarantee defendants any assistance at all. The
provision secures only a right of foreign nationals to have their
                                 20
                          PEOPLE v. LEON
                  Opinion of the Court by Corrigan, J.


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
(2006) 548 U.S. 331, 349 (Sanchez-Llamas).) Accordingly, the
“failure to notify a suspect of his or her consular rights does not,
in itself, render a confession inadmissible” under Article 36.
(People v. Enraca (2012) 53 Cal.4th 735, 756 (Enraca); see
Sanchez-Llamas, at p. 349.) It appears no case has addressed
potential penalties for noncompliance with section 834c.
Because defendant’s claim does not raise the issue, we have no
occasion to decide the proper scope of any remedy available for
a section 834c violation.
      A consular notification claim may be raised as part of a
broader challenge to the voluntariness of a confession.
(Sanchez-Llamas, supra, 548 U.S. at p. 350.) But defendant
does not claim his statements to police were involuntary. As a
result, he frames his consular notification argument somewhat
differently, asserting the lack of consular notice is a
circumstance that rendered his Miranda waiver invalid because
the waiver was not knowing or intelligent. Assuming this
argument is appropriate, it fails because defendant has
established no relation whatsoever between his confession and
the lack of consular notice. Defendant asserts he needed
consular assistance because he was poorly acculturated and
inexperienced. He contends, “Miranda advisements read from
a form by an interrogating police officer” could not substitute for
the “full[] and careful[]” explanation of his rights from a
representative of the consulate. Even assuming defendant

                                  21
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


might have received a more compelling advisement from a
consular representative, the suggestion that he would have
deferred to this advice is entirely speculative. Defendant was
told, clearly and in Spanish, that he had the rights to remain
silent and have an attorney’s assistance. He asked no questions
and exhibited no confusion or hesitation before waiving these
protections. On the contrary, as the trial court observed, he
seemed eager to talk with the officers. Having been fully
advised of his rights to silence and a free attorney, defendant
nevertheless chose to speak with the police and actively
participated in the questioning. Although sometimes tearful,
defendant never stopped responding or asked to end the
interview.     Defendant’s immediate, continued, and active
participation belies the suggestion he would have remained
silent if advised of his consular rights. (See Enraca, supra, 53
Cal.4th at pp. 757-758.)
         2. Instruction Regarding Preoffense Statements
      Defendant claims the court improperly gave CALJIC
No. 2.71.7, which instructs that a defendant’s statements
reflecting intent, plan, motive, or design must be viewed with
caution.7 The instruction was appropriate as supported by the
evidence and any possible error was harmless.
     Veronica testified that defendant had difficulty accepting
the end of their relationship and blamed Hope for influencing
Veronica’s decision. In a phone call two days before the
murders, defendant told Veronica, “I know it’s [Hope] that’s


7
      Defendant asserts the instruction violated his rights to
present a defense and to a fair trial and penalty under the Sixth,
Eighth and Fourteenth Amendments, and analogous state
constitutional provisions.

                                 22
                          PEOPLE v. LEON
                  Opinion of the Court by Corrigan, J.


making you think like this.” Veronica also testified that in their
last brief phone call, on the day of the murders, defendant said,
“No matter what happens . . . I’ll always love you.” Although
Veronica found the statement odd, she was mainly irritated by
the call.
      Based on these two statements, the prosecution requested
CALJIC No. 2.71.7. As read to defendant’s jury, this instruction
states: “Evidence has been received from which you may find
that an oral statement of intent, plan, motive, or design was
made by the defendant before the offense with which he is
charged was committed. It is for you to decide whether the
statement was made by the defendant, and evidence of such an
oral statement ought to be viewed with caution.” Defense
counsel objected that the instruction applies only when there
has been an “actual” or “blatant” statement of intent or
planning. He noted that “obviously inferences can be made
from” defendant’s statements but suggested these inferences did
not require a jury instruction. The court responded, “You’ve
kind of answered your own objection there. There is an
inference that he’s intending to do something in the future,
something evil. Generally speaking, the law is that if there is
some evidence that supports an instruction, it should be given.”
       We recently held that trial courts need not instruct the
jury to view defendant’s extrajudicial statements with caution
unless such an instruction is requested by the defense. (People
v. Diaz (2015) 60 Cal.4th 1176, 1189-1190.) However, “[t]he law
in effect at the time of [defendant’s] trial was clear: A trial court
had the duty to instruct the jury sua sponte to view a defendant’s
oral admissions with caution.” (People v. Johnson (2018) 6
Cal.5th 541, 587, italics added (Johnson); see People v.
Carpenter (1997) 15 Cal.4th 312, 392-393; People v. Beagle
                                  23
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


(1972) 6 Cal.3d 441, 455.) If the jury heard evidence of a
defendant’s inculpatory statement, or from which an
inculpatory statement could be inferred (see People v. Rodrigues
(1994) 8 Cal.4th 1060, 1136-1137), a cautionary instruction such
as CALJIC No. 2.71 or 2.71.7 was required even over defense
objection. (See, e.g., People v. Zambrano (2007) 41 Cal.4th 1082,
1157 (Zambrano).)
       Defendant argues the instruction was not supported by
the evidence. “A trial court must give a requested instruction
only if it is supported by substantial evidence, that is, evidence
sufficient to deserve jury consideration.” (People v. Marshall
(1997) 15 Cal.4th 1, 39.) Veronica’s testimony supported the
instruction. Defendant acknowledges that she testified about
the statements in question but disputes the reasonable
inferences that could be drawn from them. Defendant insists
his statement “No matter what happens, I’ll always love you”
did not suggest an “intent, plan, motive, or design” to kill, but
“was simply the classic lament of a man professing eternal and
unconditional love for a young woman who has told him she
wants to end their relationship.” While this is one possible
interpretation of the statement, it is not the only one. Even
defense counsel acknowledged that ominous inferences could be
drawn from the statement, in which defendant suggested
something might “happen” only hours before he went to the
Ragland house, murdered Hope and Austin, and attacked
Marion with a hatchet. Defendant’s innocent interpretation is
also at odds with his other statement, blaming Hope for “making
[Veronica] think like this.” This earlier statement conveys
defendant’s apparent aggravation with Hope and could support
a conclusion that he harbored a criminal intent. Ultimately, the
jury had to decide whether defendant actually made the

                                 24
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


statements attributed to him, and, if so, what the statements
implied. The cautionary instruction properly informed them
how to evaluate this evidence.
       Defendant argues the jury’s only proper role under
CALJIC No. 2.71.7 is to determine whether the defendant made
a statement attributed to him, not whether the statement
expressed an intent, motive, plan, or design. He complains
CALJIC No. 2.71.7 improperly suggested that jurors were
required to view his extrajudicial statements as expressions of
criminal intent. We rejected a similar claim in Zambrano,
supra, 41 Cal.4th at page 1157, and do so again here. “Far from
presenting motive as a predetermined ‘fact,’ the instruction
merely stated that the jury ‘may’ find defendant expressed such
a motive and must view any such expression with caution.”
(Ibid., italics added) Moreover, the jury would have understood
from numerous other instructions that it was the ultimate judge
of all disputed facts. Indeed, just before CALJIC No. 2.71.7, the
judge read CALJIC No. 2.70, which stated they were “the
exclusive judges as to whether the defendant made a confession
or an admission, and if so, whether that statement is true in
whole or in part.” The court also instructed jurors to disregard
any instructions that were inapplicable to what they found to be
the facts. (CALJIC No. 17.31.) In the context of the instructions
as a whole, the meaning of CALJIC No. 2.71.7 would have been
clear.
      Finally, any error in giving the instruction was clearly
harmless. As we have previously observed, CALJIC No. 2.71.7
generally serves a salutary purpose. “[T]he principal effect of
the instruction was to reemphasize, on defendant’s behalf, that
his inculpatory extrajudicial statements, if any, should be


                                 25
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


viewed with caution.”        (Zambrano, supra, 41 Cal.4th at
pp. 1157-1158.)
      B. Penalty Phase Issues
         1. Instructions Requested by Defense
      Defendant challenges the court’s denial of his request to
change to CALCRIM instructions at the penalty phase and its
refusal to give three special instructions.8 We conclude there
was no prejudicial error.
             a. CALCRIM Instructions
      Before trial began, the court gave counsel the option of
using either CALJIC jury instructions or the CALCRIM
instructions that had recently been released. The court said it
would not “mix and match” the two types of instructions.9
Defendant’s attorneys agreed that the CALJIC instructions
were “fine,” and CALJIC instructions were given in the trial’s
guilt phase. At the penalty phase, however, defense counsel
wanted to use CALCRIM instructions because he felt they better
explained some concepts.       Specifically, counsel preferred
CALCRIM No. 763 to CALJIC Nos. 8.85 and 8.88. Although he

8
       Defendant’s instructional error claims assert violations of
his rights to due process and a fair penalty trial under the Fifth,
Eighth, and Fourteenth Amendments and analogous California
constitutional provisions.
9
       The Judicial Council’s official guide for using the
CALCRIM instructions states: “The CALJIC and CALCRIM
instructions should never be used together. While the legal
principles are obviously the same, the organization of concepts
is approached differently. Mixing the two sets of instructions
into a unified whole cannot be done and may result in omissions
or confusion that could severely compromise clarity and
accuracy.” (Judicial Council of Cal., Crim. Jury Insts. (2019)
p. xxii.)

                                 26
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


acknowledged that the CALCRIM instructions are not meant to
be combined with other model jury instructions, he argued there
was no risk of confusion because jurors would be admonished to
disregard all of the CALJIC instructions given in the guilt
phase. The court denied the request, preferring to maintain
consistency in the instructions used throughout trial.
Defendant now argues this decision was an error of
constitutional dimension. We disagree.
       Defendant’s argument rests entirely on the complaint that
CALJIC No. 8.88 is inferior to its counterpart, CALCRIM
No. 766.    Defendant’s jury was given CALJIC No. 8.88,
explaining that a death verdict requires each juror to be
persuaded “that the aggravating circumstances are so
substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” In
contrast, CALCRIM No. 766 would have instructed the jury to
decide whether a death sentence was “appropriate and
justified.” Defendant argues the verb “warrant” imposes a
lesser standard. He suggests jurors might have misunderstood
the instruction to mean that a death sentence was “warranted”
simply because it was permitted.
      We have frequently rejected this argument. (See, e.g.,
People v. Landry (2016) 2 Cal.5th 52, 122; People v. Townsel
(2016) 63 Cal.4th 25, 73.) CALJIC No. 8.88’s instruction that
each juror consider whether death was “ ‘warrant[ed]’ ” was not
error because the instruction twice references the jury’s duty to
decide the death penalty’s appropriateness. (People v. McKinzie
(2012) 54 Cal.4th 1302, 1361.) First, the instruction explains
that a mitigating circumstance is one that “may be considered
as an extenuating circumstance in determining the
appropriateness of the death penalty.” (CALJIC No. 8.88, italics
                                 27
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


added.) Second, the instruction tells jurors to “determine under
the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances
with the totality of the mitigating circumstances.” (Ibid., italics
added.)     Defendant dismisses these references as mere
“prefatory” filler. This argument distorts the instruction’s
meaning by focusing on one word taken out of context.
Considered as a whole, “the instruction properly conveyed to the
jury that circumstances ‘warrant[]’ the death penalty when such
punishment is appropriate in the eyes of the jury.” (McKinzie,
at p. 1361.) Accordingly, it was not error for the court to give
CALJIC No. 8.88, and it was within the court’s discretion to
deny defendant’s request for CALCRIM instructions in the
penalty phase.
             b. Special Instructions
      Defendant next claims the court erred in refusing three
proposed special instructions based on CALCRIM No. 763. The
court declined to give the instructions, concluding the
information was adequately conveyed by CALJIC No. 8.85.
      Defendant’s first proposed instruction stated: “You may
consider sympathy or compassion for the defendant.” However,
the jury had already been instructed that it could consider “[a]ny
other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime and any
sympathetic or other aspect of the defendant’s character or
record that the defendant offers as a basis for a sentence less
than death, whether or not related to the offense for which he is
on trial.” (CALJIC No. 8.85.) We have consistently held that
“CALJIC No. 8.85 adequately instructs the jury concerning the
circumstances that may be considered in mitigation, including


                                 28
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


sympathy and mercy,” and no further instructions on the subject
are required. (People v. Burney (2009) 47 Cal.4th 203, 261;
accord Boyce, supra, 59 Cal.4th at pp. 706-707.) Defendant’s
special instruction was duplicative of CALJIC No. 8.85. (See
People v. Gurule (2002) 28 Cal.4th 557, 659.)
      The second proposed instruction stated: “You may not
consider as an aggravating factor anything other than the
factors contained in this list that you conclude are aggravating
in this case. You must not take into account any other facts or
circumstances as a basis for imposing the death penalty.” On
request, trial courts generally should permit an instruction
explaining that only the listed sentencing factors and related
evidence may be considered in aggravation. (See People v.
Gordon (1990) 50 Cal.3d 1223, 1275, fn. 14; People v. Williams
(1988) 45 Cal.3d 1268, 1324.) However, any error in refusing
such an instruction is “nonprejudicial under any standard
[where] the record does not suggest that any extraneous ‘factors’
were in fact presented to or considered by the jury.” (Williams,
at p. 1324.) That standard is satisfied here. The concept that
aggravating evidence is limited to that described in CALJIC
No. 8.85 is reasonably inferable from that instruction, which
directs jurors to consider the listed sentencing factors “if
applicable.” (See People v. Berryman (1993) 6 Cal.4th 1048,
1100; Gordon, at p. 1275, fn. 14.)
      Moreover, no evidence or argument here concerned a
nonstatutory factor. There was guilt phase evidence that
defendant went to work as usual on the night of the murders
and did not seem agitated. That evidence was relevant to show
that mitigation was not appropriate under section 190.3,
factor (d). Factor (d) permits mitigation if the offense was
committed while the defendant was under the influence of an
                                 29
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


extreme mental or emotional disturbance. (§ 190.3, factor (d).)
Defendant asserts his special instruction was needed because
the prosecutor’s closing argument mentioned “how normal, how
fine” defendant acted during the videotaped walkthrough.
However, in the very next sentence the prosecutor linked this
comment to factor (d), stating, “There’s no evidence at all under
factor (d).” No argument was made that defendant’s demeanor
could be used as an aggravating factor. Because there was no
basis for the jury to have considered aggravation on a
nonstatutory basis, any error in failing to give defendant’s
special instruction was harmless.
       Defendant’s third proposed instruction stated: “Even if a
fact is both a ‘special circumstance’ and also a ‘circumstance of
the crime,’ you may consider that fact only once as an
aggravating factor in your weighing process. Do not double-
count that fact simply because it is both a ‘special circumstance’
and a ‘circumstance of the crime.’ ” There is no sua sponte duty
to instruct that facts supporting a special circumstance may not
also be used as an aggravating factor. (See People v. Salazar
(2016) 63 Cal.4th 214, 254 (Salazar); People v. Ramirez (2006)
39 Cal.4th 398, 476.) However, “[a] trial court should, when
requested, instruct the jury against double-counting these
circumstances.” (People v. Monterroso (2004) 34 Cal.4th 743,
789.) “The literal language of [section 190.3, factor] (a) presents
a theoretical problem . . . since it tells the penalty jury to
consider the ‘circumstances’ of the capital crime and any
attendant statutory ‘special circumstances.’ Since the latter are
a subset of the former, a jury given no clarifying instructions
might conceivably double-count any ‘circumstances’ which were
also ‘special circumstances.’ . . . [¶] However, the possibility of


                                 30
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


actual prejudice seems remote. . . .” (People v. Melton (1988) 44
Cal.3d 713, 768.)
      The Attorney General concedes omitting the instruction
was error but contends it was harmless. We agree. There is no
reasonable likelihood the jury would have misunderstood the
instructions to permit double counting. (See People v. Ayala
(2000) 24 Cal.4th 243, 289.) “ ‘[T]he standard instructions do
not inherently encourage the double counting of aggravating
factors. [Citations.] We have also recognized repeatedly that
the absence of an instruction cautioning against double counting
does not warrant reversal in the absence of any misleading
argument by the prosecutor.’ ” (Ibid.; see Boyce, supra, 59
Cal.4th at p. 714.)     There was no misleading argument.
Although the prosecutor mentioned that two people had been
killed, he did not suggest that this fact be given additional
aggravating weight.
         2. Constitutionality of Death Penalty Law
      Defendant raises several familiar challenges to the
constitutionality of California’s death penalty scheme.
Although recognizing we have previously rejected all of these
arguments, he renews them to urge reconsideration and
preserve the issues for federal review. We decline to reconsider
our settled precedent and continue to hold the following:
      The category of death-eligible defendants under
section 190.2 is not unconstitutionally overbroad. (People v.
Winbush (2017) 2 Cal.5th 402, 488 (Winbush); see People v. Reed
(2018) 4 Cal.5th 989, 1018.) Section 190.3, factor (a), allowing
aggravation based on the circumstances of the crime, does not
result in arbitrary and capricious sentencing. (People v.
Thompson (2016) 1 Cal.5th 1043, 1129; see Salazar, supra, 63

                                 31
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


Cal.4th at p. 255.)      The death penalty scheme is not
unconstitutional for failing to require written findings
(Winbush, at p. 490), unanimous findings (People v. Wall (2017)
3 Cal.5th 1048, 1072 (Wall)), or findings beyond a reasonable
doubt as to the existence of aggravating factors other than
section 190.3, factors (b) and (c), that aggravating factors
outweigh mitigating factors, or that death is the appropriate
penalty. (Winbush, at p. 489; People v. Rangel (2016) 62 Cal.4th
1192, 1235.) These conclusions are not altered by Apprendi v.
New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, or Hurst v. Florida (2016) 577 U.S. __, 136 S.Ct. 616.
(People v. Henriquez (2017) 4 Cal.5th 1, 45 (Henriquez).) The
prosecution is not constitutionally obligated to bear a burden of
proof or persuasion in sentencing, which is “an inherently moral
and normative function, and not a factual one amenable to
burden of proof calculations.” (Winbush, at p. 489.) “ ‘Nor is an
instruction on the absence of a burden of proof constitutionally
required.’ ” (People v. Jones (2017) 3 Cal.5th 583, 619.) The
federal Constitution also does not require an instruction that life
is the presumptive penalty. (Wall, at p. 1072; Salazar, at
p. 256.)
      CALJIC No. 8.88 is not defective for failing to require a
determination that death is the “appropriate” penalty (see ante,
at p. 25; see also Salazar, supra, 63 Cal.4th at p. 256; Boyce,
supra, 59 Cal.4th at p. 724) or failing to require a life sentence
if mitigating factors outweigh aggravating ones (Johnson,
supra, 6 Cal.5th at p. 594; People v. Moon (2005) 37 Cal.4th 1,
42). This instruction’s use of the phrase “so substantial” is not
overbroad or unconstitutionally vague. (Wall, supra, 3 Cal.5th
at p. 1073; Salazar, at p. 256.) CALJIC No. 8.85’s use of the
words “extreme” and “substantial” to describe mitigating

                                 32
                         PEOPLE v. LEON
                 Opinion of the Court by Corrigan, J.


circumstances does not impermissibly limit the jury’s
consideration of mitigating factors. (People v. Rices (2017) 4
Cal.5th 49, 94; Wall, at p. 1073.) Nor is CALJIC No. 8.85 flawed
because it tells the jury not to consider sympathy for defendant’s
family as a mitigating factor. (People v. Livingston (2012) 53
Cal.4th 1145, 1178-1179; People v. Bemore (2000) 22 Cal.4th
809, 855-856.) The court was not constitutionally obligated to
delete inapplicable sentencing factors, designate which factors
are aggravating or mitigating, or instruct that certain factors
are relevant only in mitigation. (Winbush, supra, 2 Cal.5th at
p. 490; People v. Cook (2006) 39 Cal.4th 566, 618.)
      The federal Constitution does not require intercase
proportionality review. (Johnson, supra, 6 Cal.5th at p. 594;
Winbush, supra, 2 Cal.5th at p. 490.) Nor does the death penalty
statute violate equal protection by providing different
procedural safeguards to capital and noncapital defendants.
(Johnson, at p. 594; Henriquez, supra, 4 Cal.5th at p. 46.)
Finally, we have repeatedly held that California’s capital
sentencing scheme does not violate international norms or
evolving standards of decency in violation of the Eighth and
Fourteenth Amendments. (Henriquez, at p. 47; Winbush, at
p. 490; Boyce, supra, 59 Cal.4th at p. 725.)
     C. Cumulative Error
      Defendant asserts that errors in his trial were
cumulatively prejudicial. We have held that potential errors in
denying instructions on aggravating evidence and double
counting were harmless. Even considered together, these
omissions do not warrant reversal. (See People v. Nunez and
Satele (2013) 57 Cal.4th 1, 63.)



                                 33
                          PEOPLE v. LEON
                  Opinion of the Court by Corrigan, J.


      D. Restitution Fine
       At the time of defendant’s crimes, section 1202.4,
subdivision (b) required the court to impose a felony restitution
fine between $200 and $10,000. A defendant’s inability to pay
could be considered in setting a fine above the minimum level.
(§ 1202.4, subd. (c).) The court ordered defendant to pay a
$10,000 restitution fine; however, this fine was not mentioned
in defendant’s sentencing hearing or the court’s oral
pronouncement of judgment. Because the subject of restitution
was not raised, defendant had no opportunity to object to the
$10,000 fine. Accordingly, we will not consider his claim
forfeited. (Cf. People v. Miracle (2018) 6 Cal.5th 318, 356 [failure
to object at sentencing hearing forfeits excessive fine claim].)
      The trial court is generally required to include all aspects
of a judgment in its oral pronouncement of judgment. (See
People v. Mesa (1975) 14 Cal.3d 466, 471.) Any discrepancy
between the judgment as orally pronounced and as recorded in
the clerk’s minutes or abstract of judgment is presumed to be
the result of clerical error. (Ibid.) The abstract of judgment
“does not control if different from the trial court’s oral judgment
and may not add to or modify the judgment it purports to digest
or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
     The Attorney General agrees the record does not support
imposition of a $10,000 restitution fine. Instead of remanding
for a restitution hearing, which would entail an inordinate
expenditure of resources, he agrees with defendant that the fine
should be reduced to the $200 statutory minimum. Defendant’s
proposal is appropriate. (See Wall, supra, 3 Cal.5th at p. 1076;
People v. Mitchell, supra, 26 Cal.4th at p. 188.)



                                  34
                        PEOPLE v. LEON
                Opinion of the Court by Corrigan, J.


                      III. DISPOSITION
      The judgment is affirmed. On remand, the trial court
shall amend the abstract of judgment to reflect the minimum
restitution fine of $200 under section 1202.4, subdivision (b).


                                                   CORRIGAN, J.


We Concur:

CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                35
                        PEOPLE V. LEON
                             S143531


             Concurring Opinion by Justice Cuéllar


       As 93 million Americans managed to travel abroad last
year to nearly every corner of the planet, the United States
hosted almost 80 million foreign nationals. (Nat. Trade and
Tourism Off., U.S. Dept. of Commerce, U.S. Citizen Traffic to
Overseas Regions, Canada & Mexico 2018 (Feb. 2019) U.S.
Citizen     Travel      to     International     Regions:       2018
<https://travel.trade.gov/view/m-2018-O-001/index.html> [as of
Jan. 23, 2020]; Nat. Trade and Tourism Off., U.S. Dept. of
Commerce, U.S. Travel and Tourism Industry (Oct. 2019)
International           Visitors         to        the          U.S.
<https://travel.trade.gov/outreachpages/download_data_table/
Fast_Facts_2018.pdf> [as of Jan. 23, 2020].)1 When our country
ratified the Vienna Convention on Consular Relations in the
early 1960s, we gave our word that the United States would
treat foreigners in our country with dignity by allowing them
contact with their country’s consular officials –– and we let the
world know we expected no less for Americans traveling abroad.
(Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (Vienna
Convention).) While today’s decision underscores how article 36
of the Vienna Convention grants certain protections to detained
foreign nationals, it also describes a troubling failure of police to


1
     All Internet citations in this opinion are archived by year,
docket       number         and         case       name        at
<http://www.courts.ca.gov/38324.htm>.


                                 1
                         PEOPLE v. LEON
                       Cuéllar, J., concurring


fulfill the treaty’s obligations. Lurking at the edge of this case
is the problem I write to highlight: how law enforcement
agencies and courts can help ensure we honor our country’s
promise when it ratified the Vienna Convention.
       Law enforcement officials have a duty under article 36,
paragraph 1(b) of the Vienna Convention. They must inform
arrested foreign nationals, without delay, of their right to have
their consulate notified about their arrest or detention. (Vienna
Convention, art. 36 (Article 36); Sanchez-Llamas v. Oregon
(2006) 548 U.S. 331, 349 (Sanchez-Llamas).) And when the
national so requests, law enforcement officers shall inform the
appropriate consular post that their citizen is under arrest.
(People v. Enraca (2012) 53 Cal.4th 735, 756 (Enraca).) In
principle, the United States and other countries who ratified the
Vienna Convention treat consular notification as foundational
to the sensible treatment of their nationals abroad. When the
citizens of any country cross national boundaries, certain
concerns of theirs tend to be shared with citizens of every
country: to remain within range of help from one’s country.
Consular notification allows foreign nationals to obtain legal
and diplomatic assistance, among other support, as well as a
means for contacting family. (See Sanchez-Llamas, at pp. 367-
368 (dis. opn. of Breyer, J.); Buys, et al., Do unto Others: The
Importance of Better Compliance with Consular Notification
Rights (2011) 21 Duke J. Comp. & Int’l. L. 461, 469-474.)
       The majority rightly observes that Article 36 does not
command consular intervention or require law enforcement
officers to halt an investigation pending consular notification.
(Maj. opn., ante, at p. 21.) A failure to notify a suspect of their
consular rights does not — in itself — render a confession
inadmissible under Article 36. (Maj. opn., ante, at p. 21.) But

                                 2
                        PEOPLE v. LEON
                       Cuéllar, J., concurring


implicit in our country’s promise to honor the Vienna
Convention are issues of right, remedy, and responsibility that
call for more — and more serious — attention.
      Whether or not violations of this international treaty ever
require a specific judicial remedy, such as the suppression of
statements made to police, our failure to honor our treaty
commitment deserves to be remedied. In fact, the United States
Supreme Court has articulated several possible remedies for a
consular notification violation. A defendant may raise an
Article 36 claim, for example, as part of a broader challenge to
the voluntariness of the statements defendant made to police.
(Sanchez-Llamas, supra, 548 U.S. at p. 350.) If a defendant
raises an Article 36 violation at trial, the court can make
accommodations to secure for the defendant the benefits of
consular assistance.       (Sanchez-Llamas, at p. 349.)      And
suppression may be the only effective remedy in certain
situations, specifically, where there is a “connection between an
Article 36 violation and evidence or statements obtained by
police.” (Ibid.) Although none of these remedies appear
appropriate to address the violation of defendant Jose Luis
Leon's right to consular notification, today’s opinion should not
be read to suggest that remedies are always unavailable for a
consular notification violation.
      Circumstances warranting a judicial remedy may arise
rarely, but the United States Supreme Court has carefully
avoided the conclusion that suppression is never a remedy for an
Article 36 violation. Some situations involve little if any
connection between Article 36 and statements obtained by
police. But where there is such a connection, suppression serves
as an appropriate remedy. For example, there may be
defendants who cannot show their confession is involuntary
                                 3
                        PEOPLE v. LEON
                       Cuéllar, J., concurring


under Miranda v. Arizona (1966) 384 U.S. 436, but would have
a claim under the Vienna Convention. (Sanchez-Llamas, supra,
548 U.S. at p. 393 (dis. opn. of Breyer, J.).) We should also be
concerned about confessions coerced, in part, because a law
enforcement officer denied a foreign national the right to
consular notification. And a consular notification failure may be
part of a scheme to deprive the national of any meaningful
choice. In such instances, a remedy for the consular notification
violation is surely warranted.
       Also warranting attention is the telling fact that our own
Penal Code requires law enforcement to advise detained foreign
nationals of their right to consular notification. (Pen. Code, §
843c, subd. (b).) California’s own requirement even goes beyond
what the Vienna Convention calls for, by obligating every peace
officer to advise a known or suspected foreign national of the
right to consular notification upon arrest and booking, or
detention for more than two hours. (Pen. Code, § 843c, subd.
(a)(1).) California law enforcement agencies must also ensure
their policy or procedure and training manuals incorporate
language based upon Article 36 that designate procedures for
handling the arrest, booking, or detention of a foreign national
for more than two hours. (Pen. Code, § 843c, subd. (c).) As is so
often the case, law enforcement personnel and the agencies in
which they work hold in trust the responsibility of turning our
society’s legal commitments into action rather than aspiration.
Along with our courts, these capable and resourceful agencies
share the obligation to ensure the Vienna Convention’s worth
the paper on which it’s printed. (See Harmon, The Problem of
Policing (2012) 110 Mich. L.Rev. 761, 795.) That courts must
also do their part, by fashioning and applying remedies where
appropriate, will no doubt help agencies do what they must to

                                 4
                          PEOPLE v. LEON
                        Cuéllar, J., concurring


write into their internal cultures these commitments with
indelible — not invisible — ink. (See Sanchez-Llamas, supra,
548 U.S. at p. 349 [explaining that courts exclude the fruits of
unreasonable searches and seizures as a means to deter law
enforcement agents from disregarding the constraints of the 4th
Amend.].)
      Yet this case and others like it readily tell the story of how
much work remains undone. Consular notification in California
often fails to materialize and the duty to notify is routinely
honored in the breach. (See People v. Sanchez (2019) 7 Cal.5th
14; Enraca, supra, 53 Cal.4th 735; In re Martinez (2009) 46
Cal.4th 945; People v. Mendoza (2007) 42 Cal.4th 686; Case
Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)
Judgment, 2004 I.C.J. 128 (Mar. 31).) Our vigilance in honoring
these legal requirements should not arise solely because we
hope Californians detained in foreign countries will be granted
their rights to consular notification. At issue are laws ratified
by the United States and adopted by the Legislature as part of
our Penal Code — ones that convey as clearly as they do
consistently the importance of consular notification. (Medellin
v. Texas (2008) 552 U.S. 491, 505 [explaining that international
treaties are domestic law where Congress has enacted
implementing statutes or the treaty itself conveys an intention
that it be self-executing and is ratified on these terms]; id., at p.
533 (conc. opn. of Stevens, J.) [endorsing the proposition that the
Vienna Convention “ ‘is itself self-executing and judicially
enforceable’ ”]; Pen. Code, § 843c, subd. (b).) If the duty to
provide consular notification and contact the relevant consular
post when requested is indeed ignored by agents of our state, it
ought not to be.


                                  5
                         PEOPLE v. LEON
                       Cuéllar, J., concurring


      No one should question how complicated it may sometimes
prove to calibrate the proper remedy for any procedural
violation affecting the criminal justice system. Remedies in
virtually any context, no less than in consular notification, often
involve fact-specific determinations and intricate balancing of
competing concerns. I agree with the majority that we should
not suppress Leon’s statements to the police here. Nor should
we forget that our police often shoulder difficult burdens and
resolve competing demands with finite resources as they work
to advance public safety. But when our country’s given its word,
there’s no sensible excuse for condoning practices that ignore
our obligations under the Vienna Convention or disregard
protections guaranteed by California’s Penal Code.              No
competent institution can ignore that all too often these
obligations are treated as though they are not worth the paper
on which they’re printed.
      Americans abroad, and not just foreigners on our soil, are
protected by the reciprocal logic of our commitment to honor
consular notification. I respect our law enforcement officials too
much to believe they can’t honor our treaty commitments and
the laws of this state while also pursuing their investigative
mission effectively. Nor can I presume their capacity to execute
that mission is so fragile that success depends on permitting
consular notification to slip through the cracks. By repairing
those cracks, we remind the world that, at least in some corners
of the country, our word is our bond.
                                                   CUÉLLAR, J.




                                 6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Leon
________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

________________________________________________________________________________

Opinion No. S143531
Date Filed: January 23, 2020
________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Christian F. Thierbach

________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Andrea G. Asaro,
Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Kristen Kinnaird Chenelia,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrea Asaro
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Kristen Kinnaird Chenelia
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9007
