Filed 7/11/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S097886
           v.                        )
                                     )
LOUIS RANGEL ZARAGOZA,               )
                                     )                       San Joaquin County
           Defendant and Appellant.  )                    Super. Ct. No. SP076824A
____________________________________)


        In February 2001, a San Joaquin County jury found defendant Louis Rangel
Zaragoza guilty of the 1999 first degree murder of David Gaines and the robbery
of William Gaines. (Pen. Code, §§ 187, 189.)1 The jury found true the robbery-
murder and lying-in-wait special circumstances — making defendant eligible for
the death penalty (§ 190.2, subd. (a)(15), (17)(A)) — and also concluded that
defendant personally used a handgun and caused a death in the commission of the
murder and robbery. (Former §§ 12022.5, subd. (a), 12022.53, subd. (d).)
Following the penalty phase trial, the jury returned a verdict of death. This appeal
is automatic. (§ 1239, subd. (b).) We reverse the death judgment because of error
in the death-qualification of the jury, but otherwise affirm.




1       All further undesignated statutory references are to the Penal Code.



                                          1
                                     I. FACTS
       The judgment of death under review rests on the jury‘s finding that
defendant murdered David Gaines in the commission of a robbery and while lying
in wait. The prosecution‘s theory was that defendant and his brother, David
Zaragoza, together committed the robbery murder and that defendant was the
shooter. The brothers were originally charged in a single information. After
David Zaragoza was found incompetent to stand trial, defendant was tried alone.

       A. Guilt Phase

           1. The Prosecution’s Case
       The murder victim was 36-year-old David Gaines. He worked with his
father, William Gaines, 87, at Gaines Liquors in Stockton. On Friday, June 11,
1999, David Gaines arrived for work in the afternoon, as usual. William Gaines
returned to the store around 7:00 p.m., bringing food his wife Mary had prepared.
Mary usually packed a meal and salad for her son on Friday nights because there
was no time for him to go out for a sandwich. The salad was in a fluted Pyrex
glass bowl with a blue lid.
       After closing the store at 11:00 p.m., David and William Gaines drove in
separate cars back to their home, located at 1122 Cameron Way, in an
unincorporated area of Stockton. David Gaines parked his car in the garage;
William parked his in front of the house. When William Gaines got out of the car,
he was holding a brown paper bag in one hand and his keys in the other. On rare
occasions, William Gaines would bring home the day‘s receipts, but the paper bag
on this day contained only the Pyrex bowl. As soon as William Gaines shut the
car door, a man punched him in the chin and shoulder. With his other hand, the
man grabbed the bag containing the Pyrex bowl. William Gaines briefly fell to
one knee. When he got back up, he called out ―David‖ to his son. The assailant,



                                        2
later identified by William Gaines as David Zaragoza, took off running in an
eastbound direction.
      David Gaines rushed outside with a canister of Mace and said, ―Hey.‖
David Zaragoza was already 10 to 30 feet down the street, with his back to
William Gaines. Suddenly, William Gaines heard gunshots, so he ducked behind
his vehicle. He did not see any muzzle flash coming from the fleeing David
Zaragoza before he lost sight of his assailant. Seconds later, when the gunfire had
ceased, William found his son on the driveway in a pool of blood. David
Zaragoza and another man were running down the street. The men were 50 to 100
feet away, one trailing about 10 feet behind the other. William Gaines entered the
house to tell his wife what had happened and to call 911. The 911 call came in at
11:16 p.m.
      Carol Maurer, who lived across the street and a little to the east of the
Gaines residence, testified that she looked outside her bedroom, the room closest
to the Gaines residence, after hearing gunfire. She saw two young men, medium
build and ―not too tall,‖ heading east. The men were running fast and only a few
feet apart. The one in back was wearing white. Maurer had told neighbor David
French at the scene that she saw two young people running down the street after
the shots were fired, and French in turn relayed that information to 911. Cindy
Grafius, who lived east of the Gaines family home on Cameron Way, heard four
loud ―pops‖ and then saw a person run by her driveway. She did not recall seeing
anything in this person‘s hands. By the time she walked outside her home, she
looked west and then east but did not see anyone.
      David Gaines was not breathing and had no pulse when the paramedics
arrived. He suffered four gunshot wounds: one each to his head and wrist, and
two to his chest. The presence of soot indicated that these must have been contact
wounds, except for the wound to the head, where the muzzle would have been no

                                         3
more than 18 inches away. The three bullets that could be recovered were so
damaged as to preclude the conclusion that they were fired by any particular gun,
but the criminalist was able to determine that they all could have been fired by the
same gun.
       The prosecution theorized that the first shot, a defensive wound, hit David
Gaines‘s wrist and caused his watch to shatter and spread pieces over a large area.
The remaining shots, which were fatal, spun David Gaines around. Based on the
trajectory of the bullets, the northwesterly direction of the blood spatter, and the
recovery of a spent bullet in the next-door neighbor‘s yard to the east, the
prosecution argued that David Gaines must have been facing south, away from the
fleeing David Zaragoza but toward his killer, at the time he was shot. According
to the prosecution, this was the only explanation for the downward trajectory of
the bullets that entered David Gaines, who was taller than defendant or his brother
and was on a driveway that sloped up from the street toward the house.
       Later that night, William Gaines scooped up some papers from the ground
near his car door. He assumed they must have fallen out of his shirt pocket when
he was accosted. The next morning, after looking at the papers, he realized they
were not his and called the San Joaquin County Sheriff‘s Department. The papers
included a number of items that bore David Zaragoza‘s name or fingerprints,
including a Medi-Cal identification card, a transit card, and a San Joaquin County
Medical Facility interoffice memo.
       Meanwhile, at the crime scene, the sheriff‘s department had already
recovered a torn book-and-release form and another piece of paper with the words
―Mr. Zar‖ on it. Further research revealed that the form belonged to David
Zaragoza. The next morning, June 12, 1999, Detective Jerry Alejandre went to the
board and care home where David Zaragoza resided; David was not home.
Alejandre interviewed the caretakers and was shown photographs of David

                                          4
Zaragoza and his family, including a single photo of defendant. When Detective
Alejandre returned to the board and care home in the afternoon, the photo of
defendant was missing from the display.
       In his statement to police on June 12, 1999, David Zaragoza denied being
with defendant on the previous evening. A clinical psychologist who examined
David in January 2000 diagnosed him as suffering from chronic paranoid
schizophrenia, polysubstance abuse (in remission because of his incarceration),
and severe personality disorder with paranoid, antisocial, and schizotypal features.
David had borderline intellectual functioning, a verbal IQ of 61, a second grade
reading level, and a global assessment of functioning score indicating severe
impairment and psychosis.
       On June 13, 1999, Detective Bruce Wuest went to 429 South Airport Way,
where defendant lived with his sister, Nina Koker, and her disabled husband, John
Koker, to search for evidence. In the garbage bin outside the Koker residence,
Wuest found a fluted Pyrex glass bowl, which had been wrapped in a plastic bag
from Grocery Outlet and placed in a white kitchen-size garbage bag. There was
oil inside the bowl, which was consistent with its having contained a salad. Mary
Gaines identified the bowl as the one she had used to pack dinner for her son on
the day he died. Wuest also found a small white bag containing a receipt from a
Jack in the Box on Pacific Avenue, which was less than a mile from the Gaines
residence, and an empty pack of Marlboro 100 Lights. The Jack in the Box receipt
was dated June 12, 1999, at 12:03 a.m. The garbage bin was otherwise empty, as
the garbage had been picked up on Friday, June 11.
       Two days later, Wuest returned to the Koker residence and looked in the
garbage bin again. This time, he found the blue lid to the fluted Pyrex bowl. The
lid had been placed in a coffee can that was used for cigarette butts. Wuest



                                          5
recalled seeing the coffee can inside the house during his earlier visit. Mary
Gaines identified the lid as hers.
       No Pyrex products were found inside the Koker residence. Yolanda Tahod,
defendant‘s mother, confirmed that neither she nor her daughter owned any Pyrex
bowls of the type found in the garbage at the Koker residence. Koker claimed that
she sometimes would put plastic containers of dog food in the refrigerator, forget
about them, and then throw them away when she was cleaning up. She did not
know whether she had thrown any bowls away between that Friday, when the
garbage was picked up, and that Sunday, when the police found the Pyrex bowl in
the garbage can. Nor did she know how the blue lid to the Pyrex bowl came to be
in the coffee can.
       On Sunday, June 13, 1999, defendant voluntarily went to the sheriff‘s
department for a videotaped interview. The jury viewed excerpts from that
interview, as well as excerpts from defendant‘s interview the next day following
his arrest. During the first interview, defendant admitted that he had been with his
brother on Friday night, but denied any involvement in the robbery or murder.
According to defendant, David Zaragoza had called on Friday to ask whether he
could spend the night at the Koker residence. Defendant secured permission from
his sister and called his brother back to tell him that he would be picked up after
their mother dropped off the car. (Koker, however, testified that she had not given
permission for David to sleep over that night.) Defendant picked up David around
9:30 p.m. in front of the board and care home. David, who (according to
defendant) often dresses ―weird,‖ was wearing a white tuxedo vest and gray or




                                          6
blue pajama-style pants from the Stockton State Hospital.2 Defendant complained
that his hands were numb and tingling from his work as a welder, and asked David
to rub some ointment on his hands and feet. After David did so, defendant fell
asleep. When defendant woke up between 11:00 p.m. and 11:30 p.m., David was
gone. Defendant estimated that he must have fallen asleep between 10:00 p.m.
and 10:30 p.m. David called the next morning to explain that he had decided to
leave the previous night because he was hearing voices. Defendant said he left for
work on Saturday morning around 4:45 a.m., but was told when he arrived that
there was no work for him.
       After defendant was arrested and reinterviewed on June 14, 1999, he told
police that David Zaragoza wanted to spend Friday night at the Koker residence,
that defendant picked David up and brought him to the house between 9:45 p.m.
and 10:00 p.m., that David was wearing a white vest and tennis shoes, that
defendant asked David to massage a sports cream into his aching feet, that
defendant fell asleep around 10:30 p.m., and that defendant woke up around 11:30
p.m. or 11:45 p.m. to find that David was gone. The following afternoon, David
called defendant to explain that he had left because he was hearing voices and
could not get any medication until Monday. When defendant asked David about
his two visits with the police, David said, ―I got nothing to worry about, because I
ain‘t did nothing.‖ Defendant admitted that he was the person who empties the
trash at the Koker residence, but said he had no knowledge about the bowl that
was found in the garbage can outside the house. He did point out, though, that his



2      David Zaragoza was wearing those pants when he was interviewed on June
12, 1999, and likewise told police he had been wearing those same pants, which
had no pockets, the night before.



                                         7
sister ―throws a lot of bowls away.‖ He also denied going to Jack in the Box that
night. He added that his sister eats a ―lot‖ of fast food.
       Defendant and his mother, Yolanda Tahod, told police that David Zaragoza
did not drive and that they had never known him to drive. Stella Lee Tahod,
defendant‘s sister-in-law, believed that she had seen David drive in 1985 or 1986;
David, however, had been in prison for all but four months in 1985 and all but two
months in 1986. Eddie Tahod, defendant‘s half brother, recalled that David had
driven as a teenager, 20 to 25 years earlier. Yolanda Tahod testified at trial that
David had driven a car before, but not since 1975. Yolanda Tahod also testified
that she regularly let defendant use her car, a beige Honda, to drive back and forth
to work and that she returned the car to defendant around 7:00 p.m. on the night of
the murder.
       Billy Gaines, grandson of William Gaines and nephew of David Gaines,
testified that defendant came into the liquor store in the early afternoon on the day
before the murders to buy a beer. Defendant pointed to a ―funny‖ ball behind the
counter and asked what it was. Billy Gaines told defendant it was a camera.
Defendant asked whether it worked and, before leaving, said ―Cool, pretty neat.‖
Defendant‘s timesheet, however, showed that he was at work in Tracy until 4:32
p.m. that day.
       Paul Banning, who worked evening shifts at the liquor store, testified that
he had seen defendant there on occasion. He, like Billy Gaines, did not remember
ever seeing David Zaragoza.
       Howard Stokes, who lived down the street from the Gaines family, testified
that William Gaines came home from closing the store each night at the same
time. On Monday, June 7, 1999, four days before the murder, Stokes was walking
his dog when he saw a male, possibly Latino, with a stocky build, between five
feet six inches and five feet eight inches tall, get out of a green minivan and walk

                                           8
towards the Gaines residence. When William Gaines drove up to the house,
however, the man hid behind a tree. As Stokes and the man walked on opposite
sides of Cameron Way in the same direction, Stokes saw what appeared to be
some sort of coating on the man‘s face, which gave the man a ―scary‖ look.
Stokes was not sure whether the man had facial hair. (Defendant had a very full
mustache at the time.)
       Stanley Monckton, who lived on Cameron Way near the Gaines family,
testified that he was watering his lawn around noon on Saturday, June 12, 1999,
the day after the murder, and saw defendant driving a car — an older white or
cream Honda, like the car defendant typically drove — that seemed to be out of
place in the neighborhood. Defendant drove by slowly.
       In an effort to challenge defendant‘s claim that his sister, Nina Koker, must
have visited Jack in the Box just after midnight on Saturday, June 12, 1999, the
prosecution offered evidence that Koker and the man who became her fiancé,
Raymond Padilla, visited Padilla‘s cousin, Marcus Anthony Ellsworth II, on June
11 for dinner at his home. Ellsworth testified that Koker realized at the end of the
night that she had locked her keys in her car and had to call a locksmith, who took
30 to 45 minutes to arrive. Ellsworth estimated that Koker left between 1:00 a.m.
and 2:00 a.m.
       Koker, on the other hand, denied having anything to eat that night until she
stopped at the Jack in the Box on her way home. Koker agreed that she and
Padilla had gone to Ellsworth‘s house that evening for a barbecue, but claimed that
there was no food because Ellsworth‘s parents had gone to Reno for their
daughter‘s graduation. Koker said the three of them watched television all
evening instead. She did not realize she had locked her keys in the car until it was
time to leave. She was able to retrieve her keys 10 or 15 minutes before midnight,



                                         9
went to Jack in the Box, and got home around 12:25 a.m. Koker said she got up
for work less than three hours later.
       Padilla could not recall whether they ate anything at Ellsworth‘s home. He
said Koker left around midnight, between five and 20 minutes after the locksmith
retrieved her keys from the locked car.
       The bookkeeper at Cecil‘s Security Systems testified that Koker‘s request
for assistance with a locked car was received at 11:51 p.m., that a locksmith
arrived at 11:59 p.m., and that the work was completed at 12:08 a.m. — five
minutes after the time stamped on the Jack in the Box receipt. The Jack in the
Box on Pacific Avenue was about a quarter-mile from Ellsworth‘s house.

           2. The Defense Case
       Detective Alejandre testified that William Gaines did not claim when
interviewed at the scene to have observed two people running away after shots
were fired. In fact, Gaines told Alejandre that he did not see anyone other than the
man who assaulted him.
       When Deputy Sheriff Daniel Anema spoke to Carol Maurer around 12:30
a.m. on June 12, 1999, Maurer was very shaken up and did not give her name.
Anema found it difficult to get information out of her. Maurer said she heard four
shots and then saw two White males running down the street. A defense
investigator, Wilson Stewart, talked with Maurer in May 2000. Maurer told
Stewart that she heard the shots and then saw two ―Mexican boys‖ fleeing.
Stewart also talked with Howard Stokes, who said that David Zaragoza‘s




                                          10
photograph was ―consistent‖ with the person he had seen on June 7, 1999, who did
not have a mustache like the one depicted in defendant‘s newspaper photograph.3
        Antoinette Duque, defendant‘s former girlfriend, testified that defendant
called her three times between 6:24 a.m. and 10:42 a.m. on Saturday, June 12,
1999. In the early morning of June 14, 1999, defendant called to say that he
believed he was going to be arrested.
        James Allen, a caretaker at the group home where David Zaragoza lived,
testified that David was absent from the home during the evening of the murder
but returned sometime during the 10 o‘clock news. Allen stated that the weekend
curfew at the group home was between 10:00 p.m. and 11:00 p.m. Ernie
Williams, who was David‘s roommate at the group home, told Detective Wuest
that David came home near the end of the Late Night with David Letterman show,
which began at 11:00 p.m.
        Kimberly Kjonaas, a senior psychiatric technician for the San Joaquin
County Mental Health Department, testified that David Zaragoza came to the
clinic in the morning of June 13, 1999. He claimed that he was sick and needed to
be admitted for treatment. Although David strained to defecate in his pants and
then smeared feces on his shirt, Kjonaas did not have a basis to commit him at that
time.



3      By the end of the case, the prosecution no longer insisted on the theory that
Stokes had seen defendant — rather than his brother David, who was of similar
height and build — on that Monday night. The prosecution focused instead on
evidence establishing that defendant and his brother were together that evening:
defendant had picked up David from Eddie Tahod‘s house before 9:00 p.m. on
Monday; defendant stopped next at Gaines Liquor Store, which was two or three
blocks away, to pick up cigarettes for his brother; and the two of them then went
to the Back Door bar for about an hour.



                                         11
       David Zaragoza‘s mother testified that David had a temper and that what he
said sometimes did not make any sense.
       The defense commissioned an animated recreation depicting its version of
the events surrounding the murder and showed it to the jury. The depiction
assumed that David Zaragoza knew how to drive, that David Zaragoza took the car
from the Koker residence without permission, that he returned to the group home
between 10:00 p.m. and 10:30 p.m., that he drove from there to the Gaines
residence, that a number of identifying papers spilled out of his pocket when he
pulled out a gun and shot David Gaines, that he placed the bag containing the
Pyrex bowl into the garbage can at the Koker residence around 11:30 p.m., and
that he left the car there and walked back to the group home, which was over two
miles away. The animation did not explain how the bag containing the bowl was
placed in a Grocery Outlet bag or how the lid got into the Koker residence. The
information underlying the animation came from defense counsel, not from
transcripts of the trial or statements made by defendant.
       Nina Koker told police that she smoked Marlboro Lights, which was the
brand of the empty pack that police found in the Jack in the Box bag. When
defendant was interviewed by police on June 14, 1999, he was smoking Camel
cigarettes.

              3. Rebuttal
       Psychiatrist Kent Edward Rogerson, who evaluated David Zaragoza in
2000 and found him incompetent to stand trial, testified that David was
intellectually disabled, had reduced activity in the parts of the brain associated
with executive functioning, and was very easily led. Rogerson opined that
David‘s illness was ―variable‖ and that he was capable of goal-directed behavior
as well as great violence.



                                          12
       B. Penalty Phase

           1. Prosecution Evidence
       The prosecution presented evidence of defendant‘s prior crimes as well as
testimony from David Gaines‘s family about David‘s life and the effect of his
murder.
       On September 21, 1975, defendant, then 15, and Daryl Thomas, 19,
planned to rob a liquor store in Stockton. Upon arriving at the store, defendant
recognized the clerk and decided not to commit the robbery. After a bite to eat,
defendant and Thomas robbed a cab driver, Benny Wooliver. Thomas shot the
driver behind the right ear and killed him. They took $50 and fled from the cab,
which had jumped the curb and hit a tree and a house.
       Defendant and Thomas were picked up in a van driven by their friend
Gilbert Renteria, who was with three male occupants. This larger group decided
to rob a 7-Eleven store in north Stockton. One of the van occupants, Marcus
Duron, took the money from the cash register. Before leaving the store, defendant
fired twice, hitting the store clerk, Dale Sym, once in the small of his back. The
other bullet passed through Sym‘s shirt and hit a slushie machine. Renteria and
Duron got back to the van first and drove off at high speed. Police stopped the van
shortly thereafter and arrested the occupants. Defendant, who had been left
behind, stole a bicycle and rode home. The van‘s occupants implicated him in the
robbery, and he surrendered to police three days later.
       Defendant admitted to first degree murder as an aider and abettor, was
committed to the California Youth Authority, and was released five years later.
During Thomas‘s trial for Wooliver‘s murder, defendant testified that he had shot
the victim and that Thomas was not even in the cab at the time. Thomas was
nonetheless convicted of first degree murder.




                                         13
       On December 24, 1980, defendant was stopped while driving and was
found in possession of stolen property. In addition, a .22-caliber pistol was found
underneath the car‘s right rear seat, and a shortened rifle with a ―banana clip‖ was
found in the trunk. He was sentenced to prison.
       On July 6, 1982, the FBI and the Stockton Police Department, based on a
tip, were able to thwart the robbery of a Bank of America branch in Stockton. One
of defendant‘s accomplices, who discharged his weapon immediately upon
entering the bank, was shot by an FBI agent. This accomplice managed to shoot
and wound another FBI agent before dying. Another accomplice was shot and
wounded trying to run from the scene. Defendant initially pointed his sawed-off
shotgun at an FBI agent when ordered to drop his weapon, but complied with the
order when an agent on top of the building fired a warning shot. Subsequent
inspection of defendant‘s shotgun revealed that it had malfunctioned. Defendant
was sentenced to federal prison for his part in the attempted bank robbery and was
released in October 1998.
       David Gaines was described as an innocent and gentle son, brother, and
uncle, who enjoyed gadgetry, flying airplanes, history, and his family. David
lived with his parents, who were both over 80 years old, and was the son who
helped out the most at the liquor store. David‘s parents were convinced they
would not have another good day for the rest of their lives.

           2. Defense Evidence
       Defendant testified at his penalty trial. He started skipping school in junior
high, ―took off‖ from juvenile hall but turned himself in, and then was sent to the
California Youth Authority when he was 12 or 13. After he was released from the
Youth Authority in 1975, he lived on the streets and met Daryl Thomas. He and
Thomas committed four or five strong-arm robberies of people on the street. He



                                         14
admitted his involvement in planning to rob a liquor store, robbing a cab driver,
robbing a 7-Eleven, and shooting the 7-Eleven clerk. Defendant said he agreed to
testify at Thomas‘s trial because Thomas was facing a sentence of life in prison
and defendant felt sorry for Thomas, who was the father of a newborn baby.
Defendant also admitted burglarizing some homes just before he was pulled over
and arrested for receiving stolen property in 1980.
       When defendant was released from state prison, he joined a crew of friends
and committed five bank robberies in a 30-day period. Defendant said that he was
armed with a sawed-off shotgun during the attempted robbery at the Bank of
America, but that he had broken the firing pin to render it inoperable prior to the
robbery. Over the course of his 16 years in federal prison, defendant came to
realize that he wanted the family life that his brothers and sisters had.
       When defendant was released from federal prison in October 1998, he
completed Delta College courses in machinery and welding and got a job as a
welder in April 1999, after passing a welding test, a physical exam, and a drug
test. This was his first regular job, and it made him feel proud. He worked six
days a week, spent Sundays with Duque, who was at first his girlfriend and then
just a friend when his desire to start a family could not be reconciled with her lack
of interest in having more children. He also went to church regularly.
       Defendant admitted driving David Zaragoza home from Eddie Tahod‘s
house on the Monday prior to the murder and testified that they stopped at Gaines
Liquors before dropping David at the board and care home. But he denied going
to the Back Door bar that evening, although he conceded that he and David had
gone there some other evening. Defendant‘s description of his actions on the night
of the murder and his conversation with his brother David the next day largely
tracked the version he had given in his police statements.



                                          15
       Defendant‘s mother, Yolanda Tahod, testified that defendant‘s father, Louis
Zaragoza, Sr., often beat her and that the family was on welfare much of the time
because her husband could not keep a job. Louis, Sr., often drank and physically
and verbally abused the children, particularly David and defendant. In 1967,
Yolanda Tahod separated from Louis, Sr., after he was hospitalized for digging a
grave big enough for the whole family in their backyard, and left Los Angeles.
Defendant was seven years old. She moved the children to Stockton and married
Albert Tahod a year later. Shortly thereafter, Louis, Sr., kidnapped the children,
but was arrested on the freeway. Yolanda and Albert drank a lot, and Yolanda
started to neglect her children.
       Defendant‘s troubles with the law coincided with the family‘s move to
Stockton. He began shoplifting at seven, was arrested for shoplifting and
malicious mischief at 11, and was arrested for shoplifting, vehicular burglary, and
glue-sniffing at 12. He was made a ward of the juvenile court. The family
believed that Ruben Arellano, Sr., a counselor at the Youth Authority and old
enough to be defendant‘s father, had a negative influence on defendant.
Defendant was driving Arellano‘s car at the time he was arrested for receiving
stolen property, and it was Arellano who connected defendant, once he was
released from prison, with a woman who organized bank robberies.
       Yolanda and other family members testified that defendant decided to
change his life upon his release from prison in 1998: he reestablished his
relationship with her, his siblings, and their children with the help of religion;
attended college welding classes and got a job he enjoyed; had a girlfriend and
wanted to start a family; and made arrangements to borrow money from his half
brother Eddie to purchase a car. David, on the other hand, was known for his
bursts of anger and his delusions of persecution.



                                          16
       When David Zaragoza called his mother on the night of the murder, he told
her that defendant had fallen asleep while he was massaging defendant‘s feet and
that he was going to walk home. A week after David was arrested, he admitted
taking her car to commit the robbery and killing David Gaines. He said he needed
money to buy rock cocaine.
       On June 21, 1999, David Zaragoza told his brother Reynaldo that he left the
house after defendant fell asleep and met up with an unknown White man who
offered him a ride. While in the vehicle, he saw a revolver. The White man, who
had long blond hair, a thin build, and raggedy clothing, drove to somewhere in
north Stockton and shot someone at a residence before taking David home.
       During defendant‘s trial, David told family members visiting him at Napa
State Hospital that he had committed the shooting himself. David recounted to
them that he had needed drugs, and a White male he did not know had handed him
a gun. David then drove off in his mother‘s car. After the shooting, he sold the
gun for drugs, drove back to Nina‘s house, left the car there, and walked home.
David also stated four times during a pretrial hearing that he had shot and killed
David Gaines and added that he wanted to be sentenced that day. Later in the
hearing, David pulled down his pants and defecated in the courtroom.
       A crisis clinician at the San Joaquin County Mental Health Services
considered David a danger to others, based on an assessment he had conducted in
February 1999, and testified that David had stopped taking his medications at that
time, was abusing drugs, and indicated he might kill himself or others.
       Defendant attended Bible study and religious services in jail while awaiting
trial in this case. Defendant recruited other inmates to participate and hold Bible
study on days when the prison ministry was not present. A number of fellow
inmates testified that they gained salvation and the determination to improve their
lives as a result of defendant‘s ministry.

                                             17
            3. Rebuttal
       Yolanda Tahod spoke with a district attorney investigator on August 3,
1999. According to Yolanda, David Zaragoza told her he had been walking to a
donut shop on Charter Way to buy a soda when he approached a White man in a
car. The White man offered to give him some change if David went with him. The
White man then drove to a residence in north Stockton and shot somebody. Later
in the conversation, David told his mother that he killed a man. As he was on
medication, he did not remember everything about it, but did know that he didn‘t
mean to do it.
       Stella Tahod, defendant‘s sister-in-law, told an investigator working for
David Zaragoza that David had called her from the county jail on August 12,
1999, to say, ―I‘m getting 250 milligrams of Haldol. Then they wonder why we
shot that man.‖ Stella, however, denied telling the investigator that David had said
―we.‖ During a jail visit that same day, David told Eddie Tahod, Stella‘s husband
and defendant‘s half brother, that he left the house after defendant had fallen
asleep, that he was picked up by a White man in a car, that the White man flashed
a gun, and that he then dozed off. David did not mention anything about a
shooting.
       During a police interview on June 12, 1999, David said he had not been
with defendant at all the night before. David said instead that he had walked to a
Taco Bell from the board and care home, did not mention meeting any White man,
and denied any involvement in the murder. Yolanda initially denied to police that
David had contacted her on the night of the murder, but admitted on June 21,
1999, that such a call occurred. She could not remember what David had said.




                                         18
                             II. JURY SELECTION ISSUES

       A. Asserted Error in Excusing Jurors for Cause
       Defendant contends that the trial court erred by dismissing two prospective
jurors based solely on responses in their written questionnaires concerning the
death penalty. We conclude that the dismissal of one juror was error, requiring
reversal of the penalty judgment.
       The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the right to an impartial jury that has not been tilted
in favor of capital punishment by prosecutorial challenges for cause. (Uttecht v.
Brown (2007) 551 U.S. 1, 9.) To protect that right, a challenge for cause because
of a prospective juror‘s views on the death penalty may properly be sustained only
when ―the juror‘s views would ‗prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.‘ ‖
(Wainwright v. Witt (1985) 469 U.S. 412, 424.) Thus, a death sentence cannot
stand if the jury that imposed or recommended the penalty was selected by
excluding prospective jurors for cause ―simply because they voiced general
objections to the death penalty or expressed conscientious or religious scruples
against its infliction.‖ (Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) Even
those who ―firmly believe that the death penalty is unjust may nevertheless serve
as jurors in capital cases so long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the rule of law.‖ (Lockhart
v. McCree (1986) 476 U.S. 162, 176.)
       When the trial court‘s assessment of a prospective juror‘s capacity to serve
is based at least in part on the juror‘s tone, demeanor, or other elements that
cannot be reflected in the written record, its ruling is owed deference by reviewing
courts. (People v. Avila (2006) 38 Cal.4th 491, 529.) But no such deference is



                                           19
warranted when a trial court‘s ruling on a for-cause challenge is based solely on
the prospective jurors‘ answers to a written questionnaire. (Ibid.) In those
circumstances, we review de novo the trial court‘s dismissal of the prospective
juror for cause. (People v. Riccardi (2012) 54 Cal.4th 758, 779.)

           1. Prospective Juror No. 129
       Prospective Juror No. 129‘s questionnaire responses reflected the extent of
her personal opposition to the death penalty. When asked whether she had any
religious convictions that would in any way interfere with her ability to sit as a
juror in a capital case, Juror No. 129 answered ―Yes‖ and wrote ―Don‘t feel I have
the right to decide if a person is to die.‖ A similar question 11 pages later asked
whether she had any religious, moral, or personal beliefs that would make it
difficult to impose the death penalty. She responded ―Yes‖ and wrote ―Don‘t
believe I have the right to make judgement [sic] for another human being to die.‖
The juror provided a very similar answer when asked for her ―general feelings
about the death penalty.‖ When asked if there were ―particular reasons‖ for her
feelings on the issue, the juror responded ―No[,] other than moral,‖ and referred to
her earlier responses. Near the end of the questionnaire, the juror answered ―No‖
when asked whether her ―answers given above‖ were ―based on a religious
consideration‖ but then said ―Somewhat‖ when asked in question No. 19 whether
she believed ―that any religious beliefs [she] may have would have a substantial
impact on [her] decision in this case.‖
       What her responses to the same questionnaire also suggested, though, is
that Juror No. 129 could nonetheless put aside her views about capital punishment
in determining the appropriate penalty in this case. In the section entitled
―Attitudes Regarding The Death Penalty,‖ she stated without qualification that she
would not refuse to find the defendant guilty of first degree murder just to prevent



                                          20
the penalty phase from taking place, nor would she refuse to find a special
circumstance allegation true just to prevent a penalty phase from taking place. She
also conveyed that she would not automatically vote for life imprisonment without
the possibility of parole ―because of any views [she] may have concerning the
death penalty,‖ that she would not substitute a different standard of proof in a
capital case, and that she would be able to follow the court‘s instructions not to
consider the issue of penalty during the guilt phase and not to consider the relative
costs of execution and life imprisonment in deciding the penalty. Moreover, when
asked in question No. 9d, assuming she was in the penalty phase of the trial,
―Could you set aside your own personal feelings regarding what the law in this
case ought to be and follow the law as the court explains it to you?,‖ the juror
answered, ―Yes.‖
       When the prosecutor then challenged Juror No. 129 for cause based on her
religious beliefs, defense counsel objected: ―I don‘t believe she‘s presented an
unwillingness to follow the law.‖ The trial court initially expressed some
uncertainty about the juror‘s responses, and the adequacy of some of the questions.
With respect to question No. 19 in particular, which asked whether the juror
believed her religious beliefs would have a substantial impact on her decision, the
court admitted, ―I don‘t think it was a very good question. We probably should
have elaborated a little bit on this.‖ Nonetheless — and based solely on the
written responses in the questionnaire — the trial court excused the juror, citing
only in a conclusory fashion ―a substantial impairment to prevent her ability to be
neutral‖ and to ―follow the Court‘s instructions.‖
       Reviewing that ruling independently, we conclude the trial court erred. The
prosecution, as the party making the challenge, had the burden to establish the
juror‘s impairment. (People v. Stewart (2004) 33 Cal.4th 425, 445 (Stewart).) In
assessing whether the prosecution carried its burden, the question is not whether

                                         21
the record might reasonably have supported a finding that the juror was unwilling
to follow instructions pertaining to the death penalty. Rather, a prospective juror
may be discharged for cause solely on the basis of written questionnaire responses
only if it is ―clear‖ from those responses that the juror is unable or unwilling to
temporarily set aside the juror‘s beliefs and follow the law. (People v. Riccardi,
supra, 54 Cal.4th at p. 781, fn. 11; People v. Avila, supra, 38 Cal.4th at p. 531; see
also People v. McKinnon (2011) 52 Cal.4th 610, 647-648.) Where a prospective
juror‘s written responses are ambiguous with respect to the individual‘s
willingness or ability to follow the court‘s instructions in a potential penalty phase,
the record does not support a challenge for cause. (Stewart, at pp. 448-449.)
       The for-cause challenge should not have been sustained on this record. A
prospective juror‘s conscientious objection to capital punishment is not by itself a
sufficient basis for excluding that person from jury service. (Stewart, supra, 33
Cal.4th at p. 446.) Although the juror here also stated that her beliefs would make
it ―difficult‖ to vote for execution, we have explained that ―[b]ecause the
California death penalty sentencing process contemplates that jurors will take into
account their own values in determining whether aggravating factors outweigh
mitigating factors such that the death penalty is warranted, the circumstance that a
juror‘s conscientious opinions or beliefs concerning the death penalty would make
it very difficult for the juror ever to impose the death penalty is not equivalent to a
determination that such beliefs will ‗substantially impair the performance of his
[or her] duties as a juror‘ . . . .‖ (Id. at p. 447.) That is especially true here, where
the juror affirmed that her personal views would not control her approach to
various aspects of the case and that she could set aside her personal feelings and
follow the law as instructed by the court.
       As the People point out, the prospective juror‘s responses also raised the
possibility that her religious views could have interfered with her ability to sit as a

                                           22
juror. Indeed, she believed ―[s]omewhat‖ that these views could have a substantial
impact on her decision in the case. We need not decide whether these responses
alone would have sufficiently buttressed a challenge for cause, though, because we
conclude that even if these responses could have been disqualifying in the absence
of any contrary responses, the prospective juror‘s other responses in this case also
mattered. At most, the prospective juror‘s concerns about the death penalty
created an ambiguity when considered together with the juror‘s other responses.
(See People v. Avila, supra, 38 Cal.4th at p. 533 [analyzing the prospective juror‘s
written responses ―taken together‖].) Not only did the juror‘s responses indicate
that she would not always or automatically reject the death penalty, but she also
answered ―Yes‖ to the question that ― ‗directly address[ed] the pertinent
constitutional issue‘ in Witt — i.e., whether the prospective juror could
temporarily set aside his or her personal beliefs and follow the court‘s instructions
in determining penalty.‖ (People v. McKinnon, supra, 52 Cal.4th at p. 645.)
       On voir dire, the juror might have demonstrated that her personal beliefs
were of such overwhelming weight that they would substantially burden her
ability to fulfill her oath at a potential penalty phase. (See People v. Nunez and
Satele (2013) 57 Cal.4th 1, 23-24 [deferring to the trial court‘s resolution of the
prospective juror‘s equivocal and conflicting responses on the questionnaire and in
voir dire]; People v. Whalen (2013) 56 Cal.4th 1, 48 [―Although her written
questionnaire responses were somewhat ambiguous, her answers on oral voir dire
made it quite clear that because of her beliefs, she was unwilling to vote to impose
the death penalty under any circumstances, even if this were the most ‗horrible
crime in history.‘ ‖].) Alternatively, the juror might have reaffirmed in open court
her written response to question No. 9d that she would set aside those views and
follow the court‘s instructions. But such further probing never took place, and
nothing in the record suggests that the trial court had a clear basis on which to

                                          23
resolve the ambiguity. (People v. Riccardi, supra, 54 Cal.4th at p. 782.).
Accordingly, the juror‘s written responses do not clearly establish that she should
have been disqualified. (See Stewart, supra, 33 Cal.4th at pp. 448-449.)
       People v. Duff (2014) 58 Cal.4th 527 underscores this very point. There, a
prospective juror‘s questionnaire revealed ―someone profoundly conflicted as to
whether she could ever personally vote to impose the death penalty.‖ (Id. at p.
541.) After identifying herself as Catholic, the juror stated that she did not believe
she could send someone to his or her death, that she believed only God had the
right to take away life, that the conflict between her beliefs and the efficacy of
deterrence was one that she has ― ‗not yet been able to resolve,‘ ‖ but that she
would ― ‗err on the side of God.‘ ‖ (Id. at pp. 541-542.) On the other hand, the
juror also responded that she could give honest consideration to both penalties,
that her views would not cause her automatically to vote against the death penalty,
and that she ― ‗would follow the law‘ ‖ — even though she was ― ‗not sure [she]
could live with it‘ ‖ and recognized that God would hold her ― ‗accountable‘ ‖ for
her acts. (Id. at p. 542.) Because the questionnaire left it ―unclear‖ whether the
prospective juror was could or would follow the law, we found that the trial court
and counsel then ―appropriately‖ used voir dire to resolve the ambiguity. (Ibid.)
       The People seek to rely on People v. Avila, supra, 38 Cal.4th 491. But that
reliance is misplaced. Although the questionnaire responses of Prospective Juror
O.D. in that case included an acknowledgement at the outset concerning a juror‘s
duty to follow the law and an indication that the juror could set aside his feelings
and follow the law, O.D. nonetheless went on to respond that he would, in every
case and regardless of the evidence presented, ―automatically vote for something
other than first degree murder so as not to reach the penalty phase, automatically
vote for a verdict of not true as to the special circumstances alleged so as not to
reach the penalty phase, and, automatically vote for life imprisonment without the

                                          24
possibility of parole if there were a penalty phase.‖ (Id. at p. 532.) O.D. also
wrote, ― ‗I was taught that there should be no reason to kill and I will continue to
think this way.‘ ‖ (Ibid.)
       In contrast to the situation we encountered in Avila, Prospective Juror No.
129‘s written responses did not clearly reveal personal views that would interfere
with her ability to judge the penalty based on the evidence presented. Rather –– as
in Duff –– her written responses, at worst, left it uncertain whether she had the
ability to perform as a juror. Because those responses did not ―clearly reveal‖ an
inability to perform her duties, the trial court erred in granting the prosecution‘s
challenge for cause without examining the juror in court to ascertain her true state
of mind. (People v. Riccardi, supra, 54 Cal.4th at p. 782.) When a trial court errs
in excusing a prospective juror for cause because of that person‘s views
concerning the death penalty, we must reverse the penalty. We do so in this case.
(Id. at p. 783; accord, Gray v. Mississippi (1987) 481 U.S. 648, 659-667.)

           2. Prospective Juror No. 16
       Prospective Juror No. 16, was examined in court after completing the
questionnaire. Her written and oral responses conveyed inconsistent views about
the death penalty. At first, her questionnaire responses indicated that she had no
religious, moral, or personal beliefs that would interfere with her ability to impose
the death penalty. Yet when asked for her general feelings about the death
penalty, she wrote, ―I don‘t feel that I would be able to take a life‖ and added that
the death penalty served no purpose. Although she stated that she would
automatically refuse to vote for the death penalty without regard to any
aggravating or mitigating factors regarding the crime and the defendant‘s
background and character, she said she would change her answer and set aside her
views and follow the law if so instructed by the court. On the other hand, when



                                          25
asked if she would be able to follow an instruction not to consider the monetary
cost of keeping the defendant in prison for life or executing him, she marked
―No.‖
        During voir dire, the juror disavowed her questionnaire response and said
she would be able to disregard the monetary cost of keeping defendant in prison or
executing him. When asked why she had said otherwise on the questionnaire, she
replied, ―Well, I really don‘t feel that I should be — should take — or be a part of
taking another person‘s life. [¶] But if the law says you — I have never broken
the law in my life, and I don‘t intend to do one now.‖ She also said she would be
able to follow the law as well as weigh and consider the aggravating and
mitigating circumstances. The prosecutor challenged the prospective juror on the
basis of her ―contradictory‖ and ―conflicted‖ answers. He also noted that she was
not being forthcoming, that she rolled her eyes upon being called into the jury box,
that she seemed ―pretty entrenched in her views‖ — and therefore suspected that
she had ―an agenda.‖ Defense counsel admitted that ―there‘s some ambivalence‖
in the juror‘s responses, but argued that she did not exhibit ―the inability to follow
the law that I think is required.‖ The trial court agreed with counsel that the
juror‘s responses could be viewed as ―equivocal.‖ Based on its finding that the
juror‘s true views would ―substantially impair‖ her ability to impose the death
penalty, the trial court sustained the challenge.
        The trial court was able to observe and speak with the prospective juror, so
we review its ruling for abuse of discretion. (People v. Scott (2015) 61 Cal.4th
363, 378-379 (Scott).) The juror here stated on her questionnaire that she would
not be able to follow the court‘s instruction to disregard the monetary cost of
imprisonment or execution in selecting the appropriate penalty. In voir dire, she
changed course and said she would be able to follow the court‘s instructions on
this topic, connecting her prior answer to her reluctance to be involved with the

                                          26
death penalty. We defer to the trial court‘s resolution of these conflicting
responses, because that court had the opportunity to assess the juror‘s tone,
apparent level of confidence, and demeanor. (People v. Capistrano (2014) 59
Cal.4th 830, 862.)

       B. Asserted Error in Denying Defendant‘s Batson/Wheeler Motion
       Defendant, who is Latino, contends that the prosecutor violated his state
and federal constitutional rights to equal protection and a jury drawn from a fair
cross-section of the community by peremptorily excusing two Latino prospective
jurors, L.R. and R.C. (See Batson v. Kentucky (1986) 476 U.S. 79; People v.
Wheeler (1978) 22 Cal.3d 258.) The claim lacks merit.
       The familiar Batson/Wheeler inquiry consists of three distinct steps. The
opponent of the peremptory strike must first make out a prima facie case by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose. If a prima facie case of discrimination has been
established, the burden shifts to the proponent of the strike to justify it by offering
nondiscriminatory reasons. If a valid nondiscriminatory reason has been offered,
the trial court must then decide whether the opponent of the strike has proved the
ultimate question of purposeful discrimination. (Johnson v. California (2005) 545
U.S. 162, 168; Scott, supra, 61 Cal.4th at p. 383.) Because the trial court ruled
that defendant had failed to make out a prima facie case of discrimination, but did
so in reliance on ―the since disapproved ‗strong likelihood‘ standard,‖ we
independently review the record then before the trial court to determine whether it
supports an inference that the prosecutor excused either of these jurors on the basis
of race. (People v. Edwards (2013) 57 Cal.4th 658, 698.)
       Defendant‘s claim of discrimination rested solely on the fact that the
prosecutor exercised his first two peremptory challenges against Latino



                                          27
prospective jurors and that defendant was Latino. We have previously recognized
that removing members of an identifiable group, where the defendant is a member
of that group, is a fact that ―may prove particularly relevant‖ to the first-stage
inquiry. (Scott, supra, 61 Cal.4th at p. 384.) But a prima facie case of
discrimination can be established only if the totality of the relevant facts gives rise
to an inference of discriminatory purpose. A court, in particular, may also
consider nondiscriminatory reasons ―that are apparent from and ‗clearly
established‘ in the record [citations] and that necessarily dispel any inference of
bias.‖ (Ibid.)
       The record in this case clearly establishes nondiscriminatory reasons for
excusing Prospective Jurors L.R. and R.C. L.R.‘s questionnaire responses
revealed that she had been convicted of shoplifting; that her sister had been
convicted of a drug charge and had been incarcerated; and that she strongly
disagreed with the proposition that the rights of persons charged with crimes are
better protected than the rights of crime victims and that harsh punishment is the
best solution to the crime problem. She also stated that she would impose a higher
burden than proof beyond a reasonable doubt in a capital case and would require
proof ―without doubt‖ that ―the defendant was 100% guilty.‖ The record thus
contained a compelling nondiscriminatory justification for excusing L.R. (See
Scott, supra, 61 Cal.4th at p. 385.)
       R.C.‘s questionnaire responses revealed that she did not ―believe‖ in the
death penalty, that she doubted it served any purpose, and that her religious
convictions on the topic would interfere with her ability to sit as a juror in a
murder case or in a case involving the death penalty. Although she marked ―yes‖
when asked whether she could set aside her personal feelings and follow the
court‘s instructions, she also wrote, ―I don‘t believe that another life should be
taken and although I don‘t believe in it that I could not rule for it.‖ Despite the

                                          28
responses above, she marked ―no‖ when asked at the end of the questionnaire
whether her religious beliefs would have a substantial impact on her decision.
       In voir dire, R.C. said that she ―probably‖ could get to the point of
believing that she ―could‖ impose the death penalty. Nonetheless, she reaffirmed
in open court her previous responses that her religious beliefs would interfere with
her ability to be a juror in a murder or death penalty prosecution and added that
her beliefs were ―firmly held.‖ R.C. recalled that when a co-worker was
murdered, she had thought that the murderer ―probably‖ deserved to die. On the
other hand, she said, ―I don‘t know that I could get to that point if I was actually
involved . . . in the decision.‖
       R.C. may have offered inconsistent responses as to her ability to consider
the death penalty, but a prosecutor could readily have concluded that her true
views were consistent with her confession in voir dire that she had ―never been
able to say, ‗Well, he should be dead.‘ ‖ This prospect was sufficient to dispel any
inference of discrimination. (Scott, supra, 61 Cal.4th at p. 385.) The trial court
therefore did not err in denying the Batson/Wheeler motion.
                               III. GUILT PHASE ISSUES

       A. Asserted Insufficiency of the Evidence that Defendant Was Involved in
          the Murder
       Defendant argues that the evidence was insufficient to convict him of
murder or robbery. In his view, the evidence showed that his brother David
Zaragoza committed the crimes by himself and there was insufficient evidence
that defendant was even present. We disagree.
       When the sufficiency of the evidence to support a conviction is challenged
on appeal, we review the entire record in the light most favorable to the judgment
to determine whether it contains evidence that is reasonable, credible, and of solid
value from which a trier of fact could find the defendant guilty beyond a


                                          29
reasonable doubt. (People v. Elliott (2013) 53 Cal.4th 535, 585.) Our review
must presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence. (People v. Manibusan (2013) 58
Cal.4th 40, 87.) Even where, as here, the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or evidentiary conflicts,
nor is it to inquire whether the evidence might reasonably be reconciled with the
defendant‘s innocence. (Id. at p. 92; People v. Maury (2003) 30 Cal.4th 342, 403.)
It is the duty of the jury to acquit the defendant if it finds the circumstantial
evidence is susceptible to two interpretations, one of which suggests guilt and the
other innocence. (People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant
inquiry on appeal is whether, in light of all the evidence, ―any reasonable trier of
fact could have found the defendant guilty beyond a reasonable doubt.‖ (People v.
Towler (1982) 31 Cal.3d 105, 118.)
       The sole issue in dispute in this case was the identity of the shooter. The
evidence that defendant was the shooter was entirely circumstantial — but it was
sufficiently substantial to uphold his convictions.
       First, there was substantial evidence that David Zaragoza did not commit
the robbery by himself. Carol Maurer told another neighbor at the crime scene
that she had seen two men running down Cameron Way after hearing gunfire; she
reiterated that fact to a deputy sheriff that night and to a defense investigator in
May 2000; and she testified at trial that she had seen two men fleeing. Although
Cynthia Grafius, who lived east of Maurer, saw only one person running down the
street, it was entirely possible that the other suspect had been ahead of or behind
the man she saw from her kitchen window, given that William Gaines testified that
the men in flight were separated by about 10 feet. Indeed, the trial court observed
that Grafius‘s vantage point blocked her from a view of the entire street.



                                           30
       The circumstances of the robbery and the murder also supported the
conclusion that two people were involved. William Gaines, who watched David
Zaragoza flee eastbound down Cameron Way, testified that David was between 10
and 30 feet away when the shots rang out and Gaines ducked behind his station
wagon. At the time that Gaines heard the shots, David Zaragoza‘s back was to
Gaines, and Gaines did not see any muzzle flash coming from David‘s direction.
Nor did he ever see David turn around and head up the driveway. Yet according
to the pathologist, the gun used in the murder left three contact wounds and a set
of stipple marks, which indicated that the muzzle could have been no more than 18
inches away from the victim.
       Additional forensic evidence supported the theory of a second assailant.
Both David Zaragoza and defendant were shorter than David Gaines, and the
Gaines‘s driveway sloped upward from the street to the house. But the pathologist
testified that two of the bullets entered David Gaines on a downward trajectory. A
downward trajectory suggested that the shorter gunman must have been on higher
ground — that is, between David Gaines and the house, not approaching David
Gaines from the street.
       David Zaragoza was also unlikely to have committed these crimes alone.
He had substantial intellectual deficits. The Gaines‘s house was 6.1 miles from
defendant‘s residence, yet David had no driver‘s license, was driven everywhere
by family members, and had not driven a car in over a dozen years — if ever.
David also was wearing pants that had no pockets that night. If David had a gun
that night, it was odd, under the circumstances, that he did not use it during the
robbery of William Gaines and that William Gaines did not see it. All this
suggested that the gunman was someone other than David Zaragoza.
       Second, there was substantial evidence to connect defendant to the crime.
Defendant admitted he was with his brother David that evening — although David

                                         31
initially attempted to cover that up and even removed defendant‘s photograph
from the board and care home. The fruits of the robbery — i.e., the Pyrex salad
bowl and lid — were found in the garbage bin outside defendant‘s residence.
Both items had previously been inside defendant‘s house: the bowl was in a
kitchen garbage bag that defendant had taken out of his mother‘s hands to place in
the bin outside, and the bowl‘s blue lid was in a coffee can that the police saw on a
coffee table during their first visit.
       A receipt from a Jack in the Box located less than a mile from the Gaines
residence was also found in the garbage bin outside defendant‘s house. The
receipt was time-stamped at 12:03 a.m., approximately 45 minutes after the
murder. The defense argued vigorously that the receipt reflected a purchase by
defendant‘s sister, Nina Koker. But the evidence showed that Nina was at the
home of Raymond Padilla‘s cousin, dealing with the locksmith who had helped
recover her keys from her locked car, until at least 12:08 a.m., and may not have
left there until after 1:00 a.m.
       The record also shows that it was defendant, not David, who was familiar
with Gaines Liquors. Paul Banning, a clerk, testified that he recognized defendant
as a customer who came to the store in the afternoons and evenings. Stella Lee
Tahod, defendant‘s sister-in-law, testified that defendant sometimes walked her
two daughters the block or two to get candy at the store. Billy Gaines, who was
the murder victim‘s nephew, testified that defendant had come to the store and had
asked about the surveillance camera. Billy testified in January 2001 that this
conversation had occurred in the early afternoon on the day before the murder,
although there was evidence that Billy may have mistaken as to the date or time.
And defendant himself admitted that he had been to Gaines Liquors on many
occasions, including on the Monday or Tuesday prior to the murder.



                                         32
       The evidence also connected defendant to the area around the Gaines
residence before and after the murder.
       Howard Stokes testified that on the Monday prior to the murder, he saw a
man resembling David Zaragoza walking towards the Gaines residence late at
night. When William Gaines arrived home from work, the man hid behind a tree.
Defendant admitted that he and David were together that night after having dinner
at the Tahod home.
       Around noon on the day after the murder, Stanley Monckton saw defendant
driving a car slowly through the neighborhood. Defendant was in an older, white
or cream Honda, like defendant‘s mother‘s car. Interestingly, defendant told
police that he drove straight back from Tracy early on that Saturday morning to his
mother‘s house to return the car, and that she then drove him home. His mother
told police, however, that defendant did not return the car until 2:00 or 3:00 p.m.
       Finally, the timeline tended to rebut the theory that David Zaragoza had
borrowed his mother‘s car, committed the robbery and murder, returned the car to
defendant‘s house, and walked home before midnight. The murder victim‘s watch
stopped at 11:16 p.m. According to the defense theory, David had to run to the car
after the shooting, drive the 6.1 miles back to defendant‘s house, wrap the salad
bowl in a Grocery Outlet bag and place it in the kitchen garbage, slip the salad
bowl lid into the coffee can in the room where his brother was still sleeping, and
leave on foot no later than 11:30 p.m. — given that defendant told police that he
woke up between 11:00 p.m. and 11:30 p.m. to discover that David was gone.
David then had to dispose of the murder weapon and walk the 2.3 miles to the
board and care home, where his roommate, Ernie Williams, told police that he
arrived near the end of the David Letterman show, which began at 11:00 p.m.
Even defendant concedes it was ―improbable‖ that David could have
accomplished all this in the allotted time.

                                          33
       The record, in sum, contained substantial evidence that David did not
commit these crimes by himself, that defendant was present at the scene with his
brother, and that defendant was the shooter.

       B. Denial of Defendant‘s Request to Subpoena David Zaragoza
       Defendant and his brother, David Zaragoza, were originally charged
together. During a pretrial hearing shortly after arraignment, David blurted out in
court that he shot and killed the victim, that his brother was ―not involved in none
of this,‖ and that he wanted to be sentenced that day. As the parties discussed
future court dates, David pulled down his pants and defecated. Bailiffs then
removed him from the courtroom. David was subsequently found incompetent to
stand trial.
       When the defense subpoenaed David to testify, David‘s attorney filed a
motion to quash, invoking the privilege against self-incrimination on his client‘s
behalf. (Evid. Code, § 940.) Because the district attorney would not stipulate to
David‘s unavailability, the trial court conducted a hearing on the motion. At the
hearing, David‘s attorney asserted that he had the authority and responsibility to
invoke the privilege on his client‘s behalf, given the finding that his client was
incompetent to stand trial. David‘s attorney also expressed his understanding that
the question presented was ―about [David‘s] availability and that [defense counsel]
really is seeking my client to be found unavailable‖ so that David‘s confession at
the pretrial hearing could be introduced. (See Evid. Code, § 1230.) The trial court
agreed that defendant had issued the subpoena ―to show that [David] is
unavailable to testify,‖ since ―[t]here is no other way he can do that.‖
       Defense counsel offered no objection to the assertion of the privilege by
David‘s attorney, on behalf of his client (David). Indeed, defense counsel had
nothing to say at all in response to the argument presented by David‘s attorney,



                                          34
other than to clarify that (once David‘s unavailability had been established) he
intended to introduce not only the postarraignment confession, but also statements
David had made admitting his involvement in the murder to his mother, his
brother Reynaldo, and a fellow inmate.
       Over the district attorney‘s objection, the trial court ruled that David‘s
attorney was entitled to invoke the privilege against self-incrimination on his
client‘s behalf. Based on its conclusion that David was unavailable, the trial court
quashed the subpoena.
       On appeal, defendant for the first time complains that David‘s attorney
lacked the authority to invoke the privilege on David‘s behalf and claims that the
trial court‘s finding of unavailability deprived him of his state and federal
constitutional rights to compulsory process, to present a defense, and to a reliable
verdict in a capital trial. But defendant plainly forfeited this claim by failing to
object at the time David‘s attorney asserted the privilege and by failing to identify
the substance, purpose, and relevance of David‘s live testimony. (Evid. Code,
§ 354, subd. (a); People v. Fuiava (2012) 53 Cal.4th 622, 691; People v. Blacksher
(2011) 52 Cal.4th 769, 821; accord, State v. Diaz (Conn.App.Ct. 2006) 893 A.2d
495, 498.)
       Indeed, the record tends to show that defendant had no interest in actually
having his brother David testify at trial. Rather, the apparent purpose of the
subpoena was to have David declared unavailable so that his statements against
penal interest, in and out of court, could be introduced. Defendant‘s reluctance to
offer David as a live witness was understandable, as David had given a number of
different statements about his involvement (or noninvolvement) in the incident.
David had twice denied to law enforcement any involvement in the murder. He
told his mother, on the other hand, that he left the Koker residence after defendant
fell asleep, was given a ride by a White male, and had no other recollection of

                                          35
what occurred that night. He told his half brother, Eddie Tahod, that the White
male had flashed a gun before David ―lost track of things.‖ And he told his
brother Reynaldo Zaragoza that the White male had shot someone at a residence in
north Stockton and later dropped him off — but subsequently confessed to
Reynaldo that he had committed the murder by himself. Counsel thus could
reasonably have decided, given the additional uncertainty posed by David‘s
incompetency to stand trial, that the safest course was to rely on David‘s prior
statements, rather than to risk having David testify.
       Having gambled and lost with that strategy, defendant cannot belatedly
argue here that he is entitled to a reversal in order to pursue some other strategy.
― ‗ ― ‗If any other rule were to obtain, the party would in most cases be careful to
be silent as to his objections until it would be too late to obviate them, and the
result would be that few judgments would stand the test of an appeal.‘ ‖ ‘ ‖
(People v. Saunders (1993) 5 Cal.4th 580, 590.) We therefore need not consider
the novel question whether an attorney may validly invoke the privilege against
self-incrimination on behalf of a codefendant, where the codefendant has been
declared unfit to stand trial, in the face of a criminal defendant‘s constitutional
right to compulsory process and to present a defense.

       C. Exclusion of a Segment from David Zaragoza‘s Videotaped Interview
       The key evidence connecting David Zaragoza to the robbery of William
Gaines included the numerous bits of paper containing David‘s name that were
recovered next to and around the driver‘s side door of Gaines‘s car. The
prosecution theorized that the papers fell out of David‘s shirt pocket at some point
when he assaulted Gaines, struggled with Gaines over the brown paper bag
containing the Pyrex bowl, and reached down with both hands to pick up the bag
after the bag fell to the ground. The defense, on the other hand, contended that the



                                          36
papers must have fallen out when David pulled a gun out of his pants pocket.
When the prosecution introduced David‘s admission during his videotaped
interview that the pants he was wearing that night did not have pockets, the
defense requested permission to show the jury a different segment of the
videotaped interview. In the segment identified by the defense, the interviewing
officers asked David, who had a tobacco pouch and a lighter in his shirt pocket, to
stand and then bend over to pick up something from the ground. Neither the
tobacco nor the lighter fell out of David‘s pocket.
        The People objected that the interviewing officers‘ experiment was
irrelevant, and more prejudicial than probative. The trial court agreed that
―[t]here‘s a lot of things that aren‘t the same‖ in the experiment as compared to the
circumstances at the crime scene, and sustained the objection. Defendant claims
on appeal that the evidence was relevant and, for the first time, that its exclusion
deprived him of his due process right to present a complete defense and his Eighth
Amendment right to a reliable guilt determination. We deem his federal claims
preserved only to the extent that they represent merely a gloss on the arguments he
presented in the trial court. (People v. Streeter (2012) 54 Cal.4th 205, 236-237.)
        A ruling admitting or excluding the results of an experiment or
demonstration as evidence for the existence or nonexistence of a material fact in
controversy ―is a determination largely within the discretion of the trial court and
its ruling will not be disturbed except upon a clear showing of an abuse thereof.‖
(Grupe v. Glick (1945) 26 Cal.2d 680, 685.) Experimental evidence is admissible
only when the results are relevant, the experiment was conducted under conditions
substantially similar to those of the actual occurrence, and the presentation will not
unduly delay the trial or confuse the jury. (People v. Lucas (2014) 60 Cal.4th 153,
228.)



                                          37
       This is not a case where the trial court abused its discretion. Given the
dissimilarities between the experiment conducted at the interview and the
circumstances at the crime scene, it was within the bounds of the trial court‘s
discretion to exclude the experiment. The experiment showed that a pouch of
tobacco and a lighter did not fall out of David Zaragoza‘s shirt pocket when he
bent over. But the question in this case was whether small pieces of paper —
more than a dozen in all — could fall out of his shirt pocket. Moreover, in the
experiment, David Zaragoza simply walked to a certain spot and bent over to pick
up an item. At the crime scene, however, the papers allegedly fell out after David
punched William Gaines twice and struggled with him to take the bag, which fell
to the ground. David then quickly reached down with both hands to scoop up the
bag and ran away.
       Given the different size, weight, and number of items in David‘s pocket
during the experiment as well as the lack of speed and suddenness when David
bent over to pick up an item from the floor during the interview, it was not
unreasonable for the trial court to conclude that the experiment lacked the
necessary foundation to be relevant. (People v. Lucas, supra, 60 Cal.4th at p.
227.) Nor did defendant suffer any deprivation of his federal rights, given the
experiment‘s limitations. (Ibid.; see People v. Mincey (1992) 2 Cal.4th 408, 442.)

       D. Failure to Provide the Defense with a Copy of the Jack in the Box
          Videotape
       Defendant claims that the prosecution violated its discovery obligations
under section 1054.1, as well as its constitutional duty to disclose exculpatory
evidence, by failing to provide the defense with a usable copy of the videotape
from the night of the murder obtained from the Jack in the Box near the Gaines
residence.




                                         38
       The Jack in the Box receipt that was recovered from the garbage bin outside
defendant‘s home recorded a transaction less than an hour after the murder. The
parties vigorously disputed at trial the identity of the person who had gone to this
Jack in the Box that night. In an effort to bolster the evidence of identity, police
investigators visited the Jack in the Box and recovered the surveillance videotape
of the drive-through for the relevant period. Detectives Alejandre and Wuest
viewed the videotape at the Jack in the Box.
       According to the prosecution, these police officers stated that the grainy,
monochrome videotape offered only a very limited view of the vehicles as they
approached the drive-through. The corner of the vehicle that was visible could
have belonged to a Toyota, a Honda — or, indeed, ―any car from 1979 to 1999‖
that was beige, brown, white, or a faded color. The videotape could not exclude
defendant‘s mother‘s car, which was in his possession that night, or his sister‘s
vehicle. The videotape did not show the driver, either.
       Because the videotape had ―no probative value whatsoever,‖ the
prosecution decided not to use it. A copy of the tape was not provided to the
defense, however, because the recording system used by Jack in the Box was not
compatible with VHS machines and the tape could not be converted to play on a
VHS player. The videotape‘s existence was nonetheless known to counsel, and
the prosecution made the videotape available to the defense to be viewed, as police
investigators already had, at Jack in the Box.
       We perceive no violation of the prosecution‘s statutory or constitutional
discovery obligations. By alerting the defense to the existence of the videotape
and making it available for viewing offsite, the prosecution complied with its
obligations under section 1054.1, subdivision (e) to disclose exculpatory evidence
in its possession. (See Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235,
1242 [the current discovery statutes, like the earlier ones, provide that the

                                          39
prosecution‘s obligations can be satisfied ―by making the information available
‗for inspection and copying‘ ‖].) Even if the prosecution had a duty to supply a
―usable copy,‖ as defendant contends, its obligation would have been excused on
the ground of impossibility. The prosecutor stated that ―we had someone come in
with a particular machine that . . . supposedly converts these kind of videotapes
from their particular format to normal VHS tape,‖ but the conversion could not be
completed. Indeed, defense counsel admitted that a copy ―turned out not be
available, as I understand it, through whatever technical reasons.‖ The trial court
therefore did not abuse its discretion in concluding that ―so long as [the defense]
had access to the actual physical evidence, it was not necessary for the prosecutor
to search the world to see whether there‘s proper technology to do the transfer.‖
(See Hill v. Superior Court (1974) 10 Cal.3d 812, 816-817.)
       Defendant contends that the prosecution further violated its duties by
failing to provide ―clear directions as to how [the defense] could view the tape.‖
But defendant does not explain why the prosecution would have been obligated to
facilitate a screening of the tape, given defense counsel‘s statement that he ―didn‘t
need a copy‖ of the Jack in the Box tape if the prosecution was not going to
introduce it. Nor does defendant cite any authority, or otherwise offer a
persuasive argument, for requiring the prosecution to volunteer directions for
viewing the tape. In any event, defense counsel appeared to have been well aware
of all he needed to know about how to view the tape, since he admitted to the trial
court that ―the viewing machine I was told existed only at the Jack in the Box.‖
       For similar reasons, we conclude that the prosecution did not deny
defendant his rights under Brady v. Maryland (1963) 373 U.S. 83. To challenge a
conviction on Brady grounds, defendant must show that the prosecution
suppressed evidence, that the suppressed evidence was favorable to the defense,
and that it was material. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 900-

                                         40
901; People v. Salazar (2005) 35 Cal.4th 1031, 1043.) Defendant has failed to
establish that the prosecution, by alerting him to the existence of the videotape and
by making it available for him to view at the Jack in the Box, suppressed any
information. (Salazar, at p. 1049 [evidence is not suppressed when it ―is available
to a defendant through the exercise of due diligence‖]; accord, Amado v. Gonzalez
(9th Cir. 2014) 758 F.3d 1119, 1137 [―defense counsel cannot ignore that which is
given to him or of which he otherwise is aware‖].) Nor has defendant discharged
his burden to show that the evidence allegedly withheld was favorable and
material. (Barnett, at pp. 900-901.) Defendant does not deny that the prosecutor‘s
secondhand description of the videotape did not reveal any evidence favorable to
the defense. He instead hypothesizes that favorable inferences might have been
discovered if the defense had viewed the tape. But speculation that favorable and
material evidence might be found does not establish a violation of Brady. (People
v. Williams (2013) 58 Cal.4th 197, 259.)

       E. Refusal of Pinpoint Instruction on Circumstantial Evidence
       The jury was instructed how to evaluate circumstantial evidence with
CALJIC No. 2.01, as modified at defendant‘s request: ―[A] finding of guilt as to
any crime may not be based on circumstantial evidence unless the proved
circumstances are not only, one, consistent with the theory that the defendant is
guilty of the crime, but, two, cannot be reconciled with any other rational
conclusion. [¶] Further, each fact which is essential to complete a set of
circumstances necessary to establish the defendant‘s guilt must be proved beyond
a reasonable doubt. [¶] In other words, before an inference essential to establish
guilt may be found to have been proved beyond a reasonable doubt, each fact or
circumstance on which the inference necessarily rests must be proved beyond a
reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular



                                         41
count permits two reasonable interpretations, one of which points to a finding of
guilt and the other to a finding that guilt has not been proven, you must adopt that
interpretation which points to a finding that guilt has not been proven and reject
that interpretation which points to a finding of guilt. [¶] If, on the other hand, one
interpretation of this evidence appears to you to be reasonable, and the other
interpretation to be unreasonable, you must accept the reasonable interpretation
and reject the unreasonable.‖
       The trial court rejected defendant‘s pinpoint instruction attempting to link
the principle above to its theory of the case. The rejected instruction provided: ―If
the evidence permits two reasonable interpretations, one of which points to the
guilt of the defendant and the other to the guilt of [David Zaragoza], you must
reject the interpretation that points to the defendant‘s guilt and return a verdict of
not guilty.‖ The court expressed concern that the jury could ―easily‖ interpret the
instruction to mean that ―the evidence can only point to the guilt of one or [the]
other,‖ even though the jury in this case could conclude ―that the evidence points
to the guilt of both.‖ The court also noted that there were ―sufficient other
instructions‖ to make the point ―I think that you‘re trying to make, which is if they
think it was David alone, they have to acquit the defendant.‖ What we find is that
the refusal to give the requested instruction was not error.
       A trial court may properly reject an instruction proposed by the defendant if
the instruction incorrectly states the law; is argumentative, duplicative, or
potentially confusing; or is not supported by substantial evidence. (People v.
Moon (2005) 37 Cal.4th 1, 30.) The instruction proposed by defendant, as the trial
court pointed out, was an incorrect statement of the law. The proposed instruction
posited that only one person (defendant or his brother David) could be ―guilty.‖
Yet, as defendant himself concedes, the jury could have believed that defendant
shot David Gaines ―as part of the robbery‖ committed by defendant and his

                                          42
brother. Under that version of the events, defendant could be guilty of murder.
But so could David, as an accomplice under the instructions given to the jury, if
the jury found that the murder was a natural and probable consequence of the
robbery. (See People v. Prettyman (1996) 14 Cal.4th 248, 262-263.) Because it
was possible to interpret the evidence as pointing towards David‘s guilt of the
murder as an accomplice — and yet also find that defendant was guilty of murder
as the shooter — the instruction was erroneous and thus properly rejected.
       To the extent defendant merely sought to advise the jury that only one man
could have been the shooter, the trial court correctly concluded that the matter was
covered adequately by the other instructions. (People v. Jones (2012) 54 Cal.4th
1, 81-82; People v. Clark (2011) 52 Cal.4th 856, 975.) Under CALJIC No. 2.01,
the jury was instructed that if the circumstantial evidence was reasonably
susceptible to two interpretations, only one of which pointed to guilt, it was
obligated to reject that interpretation and adopt the interpretation pointing to a
finding that guilt was not proven. Moreover, the jury was instructed that the
burden was on the People to prove beyond a reasonable doubt that defendant was
the person who committed the charged crimes and that defendant was present at
the time the crime was committed. (CALJIC Nos. 2.91, 4.50.) These instructions
correctly advised the jury what to do if it harbored a reasonable doubt that David
was the shooter.
       The cases on which defendant relies are plainly distinguishable. In People
v. Rogers (2006) 39 Cal.4th 826, the trial court failed to instruct the jury how to
evaluate the sufficiency of circumstantial evidence, except as to evidence of
mental state, thus depriving the jury of guidance as to how circumstantial evidence
of identity should be evaluated. (Id. at p. 885; see also People v. Fuentes (1986)
183 Cal.App.3d 444, 455 [―None of the required instruction, which is set forth in
CALJIC No. 2.01, was given.‖].) Here, by contrast, the jury not only received the

                                          43
general instruction as to circumstantial evidence, but was also told that the
standard of reasonable doubt applied specifically to the issue of identity.

       F. Refusal of Request to Modify the Instruction on Motive
       Defendant contends that the trial court erred in denying his request to
modify the pattern instruction concerning motive. The trial court did not
prejudicially err.
       The jury was instructed about motive in accordance with CALJIC No. 2.51,
as follows: ―Motive is not an element of the crime charged and need not be
shown. However, you may consider motive or lack of motive as a circumstance in
this case. [¶] Presence of motive may tend to establish the defendant is guilty.
Absence of motive may tend to show the defendant is not guilty.‖ The defendant
proposed, but the trial court rejected, a modification of the final paragraph of the
instruction so that it would read: ―Presence of motive IN THE DEFENDANT OR
[DAVID ZARAGOZA] may tend to establish THAT PERSON‘S GUILT.
Absence of motive IN THE DEFENDANT OR [DAVID ZARAGOZA] may tend
to establish THAT PERSON‘S innocence. You will therefore give its presence or
absence, as the case may be, the weight to which you find it to be entitled.‖ The
trial court rested its rejection of the instruction on the ground that the jury was not
deciding David Zaragoza‘s guilt in this proceeding, and that defendant remained
free to argue that David ―had motives.‖
       The trial court properly refused the modified instruction. What that
instruction directed the jury to consider is a third party‘s guilt, which in this case
would have been a distraction from the jury‘s duty to decide whether the
prosecution had proven defendant‘s guilt beyond a reasonable doubt. (People v.
Lucas, supra, 60 Cal.4th at p. 286 [rejecting defense modification to CALJIC No.
2.03 that would have instructed the jury to consider a third party‘s false and



                                           44
misleading statements as evidence of his consciousness of guilt].) As stated in the
preceding section, this was not a situation in which only one of the two men could
be guilty. Moreover, the pattern instruction, which correctly stated the law
(People v. Daya (1994) 29 Cal.App.4th 697, 714), did not preclude the jury from
considering David Zaragoza‘s motives in analyzing whether there was a
reasonable doubt about defendant‘s guilt. Indeed, defense counsel discussed
David‘s possible motives in argument.
       Even if the jury had been instructed with the modified instruction, it is not
reasonably probable that defendant would have achieved a more favorable result.
(People v. Earp (1999) 20 Cal.4th 826, 887.) The issue of David Zaragoza‘s
motivation for the robbery was essentially moot, given the undisputed evidence
that he committed the robbery. The question for this jury, as far as motive was
concerned, was whether defendant may have wanted to support or protect his
brother while his brother was committing the robbery. Evidence of David’s
motivation sheds little light on that question. Accordingly, any error would have
been harmless. (People v. Ledesma (2006) 39 Cal.4th 641, 720-721.)

       G. Denial of Motion to Suppress Defendant‘s Statements
        Defendant contends that the trial court erred in failing to suppress his
statements to police on June 13 and 14, 1999, as the product of an illegal detention
and an illegal arrest, respectively. The claim lacks merit.

           1. Statements Made on June 13, 1999
       For his initial interview, defendant accompanied two detectives from his
home to the sheriff‘s department. There, he was interviewed for two hours, and
then driven to his mother‘s home. Defendant claims that his consent to
accompany the detectives was not voluntary and was instead the product of an
implied assertion of authority. The trial court ruled that defendant‘s consent was



                                         45
―clearly voluntary.‖ We review the trial court‘s characterization of defendant‘s
contact with the detectives as a consensual encounter independently, but we
review its factual findings under the deferential substantial evidence standard.
(People v. Zamudio (2008) 43 Cal.4th 327, 342.)
       On June 13, 1999, Detectives Alejandre and Wuest drove up to the Koker
residence and found defendant sitting on the front porch. The detectives were in
plainclothes (jeans) and were driving an unmarked vehicle. No other police units
or personnel were present. After introducing themselves, they informed defendant
that they were investigating a homicide that had occurred two days earlier and
mentioned that they had already talked to his brother. When they asked whether
defendant would be willing to come down to the sheriff‘s department for an
interview, defendant said he would. Defendant remained on the porch,
unsupervised, while the detectives went into the house to talk to defendant‘s sister.
When the detectives exited the house, they asked defendant whether he was ready
to accompany them to the sheriff‘s department. Defendant said he was. After a
―real quick patdown‖ for weapons, defendant got in the front passenger seat. He
was not handcuffed or otherwise involuntarily restrained.
       About 15 minutes later, defendant and the detectives arrived at the station
and went to an interview room, which remained unlocked throughout. Defendant
was told that he was not under arrest, that the interview was voluntary and could
be stopped at any time, and that they would drive him home at the end of the
interview. Defendant appeared to understand. During the course of the interview,
defendant agreed to a participate in a computer voice stress analysis and to allow
photographs of his injuries. At the end of the interview, he rode with the
detectives in the unmarked vehicle to his mother‘s house.
       A detention occurs when the officer, by means of force or show of
authority, has restrained a person‘s liberty. (Terry v. Ohio (1968) 392 U.S. 1, 19,

                                         46
fn. 16.) Unlike a consensual encounter, a detention must be supported by
reasonable suspicion the person is involved in criminal activity. (People v. Souza
(1994) 9 Cal.4th 224, 231.) The facts here demonstrate that defendant was not
detained by the officers. Defendant was told that he was not under arrest and that
the interview was ―voluntary.‖ He was reminded that he could stop the
questioning at any time, and that he would then be driven back home. The
detectives conducting the interview were dressed casually, they displayed no
weapons and uttered no commands. They asked defendant for his permission
before each of the investigative steps they undertook, and they at no point placed
defendant under any restraints. Indeed, defendant was left alone on the porch after
the detectives secured his consent to accompany them to the station. Given these
facts, a reasonable person in defendant‘s situation would not have believed he or
she lacked the freedom to leave, decline the detectives‘ requests, or otherwise
terminate the encounter. (People v. Zamudio, supra, 43 Cal.3d at pp. 344-345;
People v. Hughes (2002) 27 Cal.4th 287, 328-329 [―the record amply supports the
trial court‘s factual finding that defendant freely consented to remain for the
purposes of speaking with [the] [d]etective [] . . . and being transported in
handcuffs to the police station for further questioning,‖ where the defendant was
handcuffed for safety reasons and expressed no reluctance about being
handcuffed]; accord, People v. Anderson (Ill.App.Ct. 2009) 917 N.E.2d 18, 26.)

           2. Statements Made on June 14, 1999
       The next day, Detective Wuest arrested defendant and his brother outside
the county mental health facility. Defendant contends that his postarrest
statements should have been excluded as the fruits of an illegal arrest without
probable cause. The trial court denied his suppression motion, ruling that there
was ―a strong suspicion of probable cause‖ at the time defendant was arrested.



                                          47
Where, as here, the underlying facts are undisputed, we independently review
whether those facts constitute probable cause for an arrest. (People v. Glaser
(1995) 11 Cal.4th 354, 362.) Probable cause is shown ―when the facts known to
the arresting officer would persuade someone of ‗reasonable caution‘ that the
person to be arrested has committed a crime.‖ (People v. Celis (2004) 33 Cal.4th
667, 673.)
         The police had probable cause here. The investigating officers quickly
identified David Zaragoza as a suspect based on the personal papers he left at the
scene, including his book-and-release form and Medi-Cal identification card.
Further investigation revealed that a second person must have been involved in the
robbery homicide, and created a strong suspicion that the second person was
defendant. William Gaines told investigators that he saw his assailant running
eastbound down the street at the same time he heard the gunshots. In light of the
contact wounds on David Gaines‘s body, Detective Wuest did not believe that one
person could have been close enough to David Gaines to cause the contact wounds
while also running down the street. Indeed, one of the neighbors confirmed to a
deputy sheriff that she saw two people running down the street after shots were
fired.
         Suspicion focused on defendant as the detectives investigated David
Zaragoza‘s claim not to have been with defendant on the night of the murder. Not
only had David announced that he was meeting his brother when he left the board
and care home between 8:00 p.m. and 9:00 p.m. that night, but defendant himself
admitted that he had been with his brother at that time. Moreover, the fruits of the
robbery — i.e., the Pyrex salad bowl and lid — were found in the garbage bin
outside defendant‘s home a short time after the murder. A receipt from a Jack in
the Box located less than half a mile from the Gaines residence, reflecting a
transaction that occurred not long after the murder, was also found in the garbage

                                         48
bin outside defendant‘s home. Taken together, these facts supplied a strong
suspicion that defendant was a participant, along with his brother, in the robbery
homicide. (People v. Kraft (2000) 23 Cal.4th 978, 1037.)

       H. Failure to Excuse Juror No. 8
       Defendant claims the trial court violated his constitutional rights to due
process and to an impartial jury by failing to conduct a full inquiry into a seated
juror‘s potential bias and by failing to discharge that juror at the guilt phase. We
reject the claim.
       During the presentation of the defense case, Juror No. 8 sent a note to the
trial judge. The note recited that the juror and Steve Gaines, the victim‘s brother,
both worked at Save Mart, that the two had talked on the phone, and added: ―I
think this should be no problem, but you should know.‖ Under examination by the
court, the juror explained that he had only just realized the connection to David
and William Gaines. The juror had never met Steve Gaines in person, but had
talked with him on the phone at least three times in the preceding three or four
months, and expected to have contact with him again in the future. Their phone
conversations, which all predated the trial, involved work-related matters, such as
installation of a punch clock in the store. The juror pledged to avoid contact with
Steve Gaines during the trial. When defense counsel asked whether returning a
verdict ―that‘s not proper with Mr. Gaines‖ would cause the juror any problems,
the juror responded, ―I have no idea. That‘s something you would have to, you
know, it‘s something that could be a possibility.‖ The juror then reaffirmed that
he would not feel an obligation to explain his verdict, regardless of what it was, to
anyone, including Steve Gaines. When defense counsel asked the juror whether
―[y]ou feel comfortable with where you‘re at right now then,‖ the juror replied,




                                          49
―I‘m fine. I just wanted to make you aware of this.‖ Defense counsel then
announced, ―I have no more questions.‖
       Defendant forfeited his challenge to the adequacy of the court‘s inquiry into
the juror‘s potential bias. He did so by announcing that he had no more questions
and by failing to seek a broader or more extensive inquiry. (People v. Holloway
(2004) 33 Cal.4th 96, 126 (Holloway).) Defendant also forfeited his claim of error
arising from the trial court‘s failure to discharge the juror. Defendant neither
sought the juror‘s excusal nor objected to the trial court‘s handling of the issue.
(Id. at p. 124.) But even if these claims had been preserved, we would find that
they were meritless.
       The decision whether to investigate the possibility of juror bias or to
discharge a juror rests within the sound discretion of the trial court. (People v.
Ray (1996) 13 Cal.4th 313, 343.) We find no abuse of discretion in the trial
court‘s failure to inquire further into Juror No. 8‘s possible bias or to discharge
him. (Holloway, supra, 33 Cal.4th at p. 127.) The record shows that the juror‘s
infrequent contacts with Steve Gaines were limited to work matters and predated
his jury service. The juror also pledged to avoid contact with Gaines during the
trial. Although the juror expressed uncertainty when asked to predict whether a
verdict that displeased Gaines might be a problem for the juror in the future, the
juror was emphatic that he would not feel any obligation to justify his verdict,
whatever it might be, to Gaines and that he was ―fine‖ sitting as a juror in the case.
The trial court, which was able to observe the juror‘s tone and demeanor,
conducted an inquiry adequate to determine that Juror No. 8 could be impartial
and would be unaffected by the coincidence that the victim‘s brother, who was not
a witness in the case, worked at the juror‘s place of employment. (Cf. Ray, at p.
344 [no abuse of discretion in failing to investigate where a juror disclosed that he
worked at the high school attended by the murder victim‘s daughter but had never

                                          50
discussed the case with her].) Indeed, defendant fails to identify what part of the
record could have supported the juror‘s inability to perform ― ‗as a demonstrable
reality.‘ ‖ (People v. Johnson (1993) 6 Cal.4th 1, 21.)
       We also find that defendant forfeited his claim that Juror No. 8 actively
concealed his work relationship with Gaines, as well as his claim that this
misconduct heightened the likelihood the juror was actually biased. Defendant
failed to object at trial that the juror had engaged in misconduct or to seek the
juror‘s discharge. (People v. Dykes (2009) 46 Cal.4th 731, 808, fn. 22.) These
claims are, in any event, meritless. The juror stated that he had only recently
realized that the Steve Gaines on the witness list was the Steve Gaines who
worked at Save Mart, and the juror‘s claim of inadvertence was bolstered by the
fact that he volunteered the possible connection rather than remain silent. (People
v. Ray, supra, 13 Cal.4th at p. 344.) An honest mistake on voir dire cannot upset a
judgment in the absence of proof that the juror‘s wrong or incomplete answer hid
actual bias, and the trial court‘s finding that Juror No. 8 was ―especially fair,‖
based on his sensitivity to defendant‘s viewpoint in answering the court‘s
inquiries, is supported by the record here. (See In re Hamilton (1999) 20 Cal.4th
273, 300.)
       Finally, defendant‘s speculation that Gaines had supervisorial authority
over the juror fails to acknowledge the juror‘s statement that Gaines was ―not
anywhere within my path to have any effect on my career at all.‖

       I. Cumulative Error
       Defendant contends that the cumulative effect of the asserted errors
requires reversal of his murder and robbery convictions, even if none of the errors
is prejudicial individually. The only error we have found involved the death-
qualification of his jury, and the only error we have assumed, for purposes of



                                          51
argument, was the failure to modify the instruction on motive. Neither error
increased the impact of the other, and their cumulative impact did not deprive
defendant of a fair trial or his right to due process of law.
                             IV. PENALTY PHASE ISSUES
       Because we have determined that the penalty judgment must be reversed on
account of the trial court‘s error in the death-qualification of the jury, we need not
consider defendant‘s other claims of penalty phase error.




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                                V. DISPOSITION
      The judgment of death is reversed. In all other respects, the judgment is
affirmed.
                                                      CUÉLLAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.




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

Name of Opinion People v. Zaragoza
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S097886
Date Filed: July 11, 2016
__________________________________________________________________________________

Court: Superior
County: San Joaquin
Judge: Thomas Teaford

__________________________________________________________________________________

Counsel:

Michael R. Snedeker, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General, Stephanie Mitchell, Sean M. McCoy and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael R. Snedeker
Snedeker, Smith & Short
4110 SE Hawthorne Boulevard
Portland, OR 972414-5246
(503) 234-3584

Peter H. Smith
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5114
