Filed 3/28/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S076785
           v.                        )
                                     )
PEDRO RANGEL, JR.,                   )
                                     )                        Madera County
           Defendant and Appellant.  )                    Super. Ct. No. M13413A
____________________________________)


      A jury convicted defendant Pedro Rangel, Jr., of the first degree murders of
Juan Uribe and Chuck Durbin. (Pen. Code, § 187, subd. (a); id., former § 189.)
The jury also found true a multiple-murder special-circumstance allegation and, as
to Durbin‟s murder, a personal firearm use sentence-enhancement allegation.
(Pen. Code, § 190.2, subd. (a)(3); id., former §§ 1203.06, subd. (a), 12022.5,
subd. (a).) The jury returned a death verdict and the trial court entered a judgment
of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen.
Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
                         I. FACTUAL BACKGROUND

        A. Guilt Phase
      On the night of October 7, 1995, defendant, his son Pedro Rangel III (Little




                                          1
Pete),1 Rafael Avila, and Richard Diaz drove to the Madera home of Chuck
Durbin in search of Juan Uribe. Defendant and Little Pete entered the home and
shot and killed Durbin and Uribe and wounded Durbin‟s wife Cynthia (Cindy)
Durbin.
     Little Pete‟s case was severed from defendant‟s before trial. Avila fled after
the crime but Diaz testified against defendant at trial.2 Defendant was also linked
to the crime by his statements and by ballistics evidence.

           1. Prosecution evidence

               a. Events before the murders
     On September 23, 1995, about two weeks before Uribe‟s murder, he and
Martha Melgoza, the mother of his daughter, attended a baptism party at a Madera
reception hall. They saw Little Pete arguing with Carlos Romero and David
Varela. Uribe was good friends with both Little Pete and Varela. Jesse Candia,
Varela‟s uncle, suggested Little Pete and Varela “fight and get it over with,” but
Varela refused, explaining Little Pete had a gun. Candia and Romero told Little
Pete to leave the party, and Romero punched Little Pete in the face. Little Pete
looked at Uribe and asked him, “[W]hat‟s up?” and “Juan, why don‟t you back me
up?” Juan shook his head and said, “No” and “It was none of my business.” Little
Pete left in his BMW.




1      At trial, the parties and witnesses referred to defendant as “Big Pete” and to
his son as “Little Pete.”
2      Diaz testified before the jury that he pled guilty to violating Penal Code
section 32 or accessory after the fact. He had not yet been sentenced but
understood it was possible he would serve either prison time or time on probation
and was required to tell the truth.


                                          2
     Little Pete told Richard Diaz he was upset with Uribe for not backing him up
and wanted to get even. Little Pete, Diaz, and Florentino (Tino) Alvarez slowly
drove by the baptism party in Little Pete‟s BMW but did not stop. Diaz described
how “everybody started running” and “they shut the front doors.”
     Melgoza and Uribe left the party later that evening. As they drove, they were
stopped by Little Pete and Tino Alvarez. When Uribe got out of the car to see
what the men wanted, Alvarez asked him why he had hit Little Pete. Uribe denied
hitting Little Pete, and said Little Pete should know who hit him. Alvarez punched
Uribe.
     Later that night, Varela was driving a friend home from the baptism party
when he saw Uribe, Romero, and several others standing on the street. Little Pete
drove by in his BMW with Diaz in the front seat. Several shots were fired out of
the passenger side of the BMW. As Varela drove away, more shots were fired.
He noticed Little Pete‟s BMW behind him. A bullet grazed Little Pete‟s head.
     On September 24, 1995, Jesse Rangel, defendant‟s nephew, who was living
in Fresno, learned that his cousin Little Pete had been shot. Jesse3 visited Little
Pete in Madera. Tino Alvarez told Jesse that Juan Uribe had shot Little Pete. In
retaliation, Jesse and Alvarez fired several bullets into Uribe‟s car. Jesse did not
see Uribe or anyone else in the area, and there had been no discussion of shooting
Uribe if they saw him. At trial, Jesse denied ever shooting at Uribe.

               b. Events on the night of the murders
     On October 7, 1995, Richard Diaz attended a barbecue at defendant‟s house.
Little Pete and Rafael Avila, who was married to defendant‟s stepdaughter Endora


3     To avoid confusion, we refer to some Rangel family members by their first
names.


                                          3
Avila, also were there. Defendant was angry about his son “getting shot in the
head” and spoke about “getting back” at Juan Uribe. Defendant said “he wasn‟t
going to let anybody get away with shooting his son in the head,” and wanted to
go look for Uribe.
     Defendant asked to borrow Avila‟s car but Avila told defendant he would
drive because defendant “was too drunk.” Defendant, Diaz, Little Pete, and Avila
got into Avila‟s car. They drove to Uribe‟s house but did not see his car there. As
they drove to a different location, they noticed Uribe‟s car parked across the street
from victim Durbin‟s home on East Central Avenue in Madera. Durbin lived with
his wife Cindy and three children, who were seven, six, and three years old. The
Durbins also had three visitors that night, Juan Uribe, Alvin Areizaga, and Richard
Fitzsimmons. Diaz saw people in the house and noticed that two children were
watching television in the front room.
     Defendant, Little Pete, and Diaz got out of the car, and Avila drove away
slowly. About 10:00 p.m., Diaz stood across the street while defendant, armed
with a .380-caliber weapon, and Little Pete, armed with a .22-caliber rifle, entered
the house through an unlocked screen door.
     Little Pete asked where Juan Uribe was. When Uribe appeared, Little Pete
asked him: “What‟s up, Juan Uribe? What‟s up now?” He then shot and killed
Uribe. Durbin ran through the living room but defendant grabbed him and shot
him. From across the street, Diaz fired two shots through the living room window
to encourage defendant and Little Pete to leave. Defendant and Little Pete ran out
of the house, and Diaz stopped Avila, who was driving by. The men got into the
car and drove off. Little Pete said that he “got Juan Uribe” and thought he had
killed him. Defendant said that he had shot Durbin because he thought he was
“running to get a gun.” Defendant accidentally fired two shots in the car while
trying to unload his weapon.
                                          4
     Cindy Durbin, Chuck Durbin‟s wife, testified she heard a big bang and
walked into the living room to check on her children. She saw two armed
Hispanic men with dark hair and wearing baseball caps standing in the house; she
was “80 to 90 percent sure” one of the men was defendant. The men began
shooting and one or both “scream[ed]” they were “going to get” Juan and said
“Juan was a traitor” and “now he was dead” or “going to die.” Cindy ran into the
kitchen where Chuck told her to hide. Chuck ran into the living room. When the
shooting stopped, Uribe‟s bullet-ridden body was on top of Cindy. Cindy had
been shot in the abdomen, and bullets had grazed her legs. She found Chuck with
bullet holes in his head and neck on the living room floor. He raised his hands to
his face and tried to speak but she could not understand him. She took their
children into a bedroom and asked Areizaga to call 911.

               c. Events after the murders
     On the night of October 7, 1995, Endora Avila, defendant‟s stepdaughter and
Rafael Avila‟s wife, was returning from a church revival when she saw Rafael‟s
car “flying” across Yosemite Street in Madera. When Endora arrived home,
Rafael was not there. Rafael came home later that night and “banged on the door
like a cop.” He was “[n]ervous” and pulled on his hair. His pants were wet
almost to his knees. Rafael removed his clothes and threw them in the trash.
Later that night Endora‟s stepbrother, Little Pete, “bang[ed] on the door” and he
and Rafael argued. Endora did not see Rafael the next day, and had only seen him
once since that night for about a 15-minute period.
     Also on the night of October 7, 1995, during the 10:00 o‟clock news, Jesse
Rangel, who was in Fresno, received a telephone call from Little Pete. Little Pete
told Jesse he “got Juan.” Later that night, Jesse was awakened by a second call
from Little Pete, who sounded drunk and was laughing. Little Pete said he had


                                         5
killed “Juan,” and that defendant, “Richard, [and] Rafael” also were involved.
Defendant then came on the line laughing and said he “put those motherfuckers on
ice.”
        One night in October 1995, defendant gave Juan Ramirez, who was married
to defendant‟s stepdaughter Deanna, a basket covered with bags and clothing and
asked him to “do him the favor of throwing that away.” Defendant also said they
“had resolved their problem.” When Ramirez disposed of the basket near a canal,
he noticed it contained two weapons. He later showed police where the weapons
were located. The weapons were a .380-caliber semiautomatic handgun, and a
.22-caliber semiautomatic rifle. Ballistics testing revealed that the .380-caliber
bullets found at the crime scene and in Avila‟s car had been fired from the same
gun and “probably” had been fired from the .380-caliber handgun. All sixteen .22-
caliber casings found at the crime scene had been fired from the rifle. The rifle, or
a similar weapon, had fired the .22-caliber bullets recovered from Uribe‟s and
Durbin‟s bodies.
        The day after the murders, Jesse Rangel, defendant, and Little Pete paid a
surprise visit to defendant‟s brother, Frank Rangel, Sr. (Frank Sr.), and his son,
Frank Rangel, Jr. (Frank Jr.), in Fresno. Frank Jr. had not seen defendant and
Little Pete for about seven years.4 During the visit, defendant told Frank Sr. that
defendant and Little Pete “had went and done a shooting,” and told Frank Jr.
“[t]hey went to the house and shot the house up.” Also during this visit, Little
Pete described the shootings to Jesse, saying defendant had a .380-caliber
handgun, Little Pete had a .22-caliber rifle, and Diaz had a .38-caliber handgun.
“Rafael had dropped him off. They . . . walked to the house . . . [and] [h]e opened

4      Frank Jr. was granted use immunity for any action with respect to the case
after October 7, 1995.


                                           6
the door. . . . He went off in the house looking for Juan.” Diaz stayed outside
across the street. Little Pete “shot Juan.” Chuck Durbin came out “from the side”
and defendant “shot him in the head.” Defendant later gave the guns to his
stepdaughter‟s husband Juan to dispose of them.
     During his visit to Fresno, defendant gave Frank Jr. a .38-caliber revolver
and asked Frank Jr. to “hold this for me.” Frank Jr. hid it outside, and later
showed law enforcement officers where the gun was hidden. The gun “matched”
the .38-caliber bullets found at the crime scene.
     A few days after the murders, Erica Rangel, Jesse Rangel‟s wife, was in a
motel room with defendant‟s wife Mary, defendant, Little Pete, and Jesse Rangel.
Mary told defendant, “You‟re a murderer. And now my son is one, too.”
Defendant did not respond.
     The prosecution introduced evidence of defendant‟s efforts to create an alibi.
The prosecution introduced the testimony of Sanjeevider (Romi) Singh, who, at
the time of the murders, was the boyfriend of defendant‟s stepdaughter, Carmina
Garza, and owned a convenience store. Garza helped Singh manage the store. On
October 8, 1995, defendant and Little Pete worked in Singh‟s store for about 45
minutes until about 10:20 p.m., where they were videotaped on the store security
system. Garza mislabeled the tape October 7, 1995. While they were in Fresno
visiting Frank Sr. and Frank Jr., Little Pete told Jesse Rangel he and defendant had
made a video showing them working at the store, and that Singh was “supposed to
switch the dates” on the tape so it looked like they were at the store mopping at the
time of the murders. Little Pete made a similar but less detailed statement to Diaz.
     Defendant voluntarily spoke to police and his statement was played for the
jury. He said that on October 7, 1995, the night of the murders, he and Little Pete
left the barbecue to go to Romi Singh‟s convenience store. They arrived before
10:00 p.m., worked for 35 to 40 minutes in the store, and left sometime after
                                          7
10:00 p.m. He agreed with the interviewing officer he would be “shock[ed]” to
learn the videotape showing this activity was actually taped on October 8, 1995,
and denied being in the store on that date.
     The prosecution also introduced evidence of defendant‟s flight. The parties
stipulated defendant worked at FMC Corporation from August 11, 1980, to
October 16, 1995, when he voluntarily terminated his employment for personal
reasons, and that defendant did not work from October 10 to October 15, 1995.
Jerry Smith, who worked with defendant, testified that defendant had worked on
Monday, October 9, 1995, the first Monday after the murders, but did not work
after that date. On about October 16, 1995, defendant called Smith and asked for a
one-year leave of absence. Smith told defendant he would refer the matter to the
plant supervisor because he could not authorize the time off.

           2. Defense evidence
     Defendant introduced pretrial statements by Cindy Durbin, Richard Diaz, and
others that differed from their trial testimony.
     Richard Fitzsimmons testified he was in the Durbin kitchen on the night of
the murders. He heard gunshots and saw two Hispanic males no more than
30 years old. He had used methamphetamine at the Durbin residence about 10 to
15 minutes before the attack. On cross-examination, Fitzsimmons said he only
observed the men for a “[m]illisecond,” the living room was dark except for the
television, and agreed with the prosecutor it was possible he “just assumed they
were younger.” He claimed to have been shot during the attack, resulting in a
bruise below his knee, but agreed with the prosecutor that a photograph showed
that the injury was scarcely visible.
     Madera Police Corporal Brian Ciapessoni testified that Cindy Durbin had
picked Jesse Rangel‟s photograph out of a lineup as the shorter of the two


                                           8
assailants. On cross-examination, the corporal said Jesse Rangel closely
resembled Jesse‟s cousin, Little Pete, and Cindy was never shown a photograph of
defendant. Corporal Ciapessoni also testified that Diaz had a tentative agreement
with the district attorney‟s office at the time he made his January 5, 1996,
statement to police that if he fully cooperated and told the truth he would not serve
time in custody.
     Tino Alvarez denied shooting at Juan Uribe‟s car. Alvarez told police in late
November 1995 that, earlier that month, Diaz had identified the shooters as Jesse
Rangel and Juan Ramirez.
     Jose Enriquez, defendant‟s father-in-law, testified by conditional
examination because he was ill and his life expectancy was short. (Pen. Code,
§§ 1335, 1345.) Enriquez stated that after Little Pete was shot, Enriquez and
defendant were conversing outside defendant‟s house. Jesse Rangel appeared and
said, “Don‟t worry [uncle]. I‟m going to take care of everything.” He then pulled
out a gun.
     Christina Bowles, who considered defendant her father, testified that on the
afternoon of October 6, 1995, the day before the murders, she saw Richard Diaz
and Jesse Rangel together in a Jeep. Bowles was looking for Diaz so that she
could “buy a dime of crank” from him as she frequently did. Diaz and Jesse
picked her up and, while in the Jeep, she noticed a gun. Diaz explained the gun
was to “[g]o get even,” and either Diaz or Jesse added with “Juan Uribe.” Bowles
did not tell law enforcement about this encounter. At one point, she tried to tell
investigating Madera Police Officer Benabente, “The ones that are your snitches
are the ones that . . . did it,” and “they got the wrong people locked up,” but he
brushed her off. On cross-examination, Bowles was impeached by her recent theft
of liquor.


                                          9
       B. Penalty Phase

           1. Prosecution evidence
     The prosecution presented victim impact testimony and relied on the
circumstances of the crimes.
     Martha Melgoza, the girlfriend of victim Juan Uribe and the mother of his
young daughter, testified that she had been at Chuck Durbin‟s house on October 7,
1995. She left before the murders, and later heard about a shooting on East
Central Avenue. She rushed back to Durbin‟s house, but was told by police that
Uribe was dead. Her daughter missed Uribe, and believed she saw him “every
place we go.”
     Maria Sanchez Guzman (Sanchez), Juan Uribe‟s mother, testified that Uribe
was her first child. He and his girlfriend Melgoza lived with Sanchez. Uribe had
a younger brother and was close to his three sisters. He took responsibility for the
family by making sure they were fed and the bills were paid. Sanchez described
learning something had happened to Uribe, going to East Central Avenue, and
learning from police of his murder. For the first few weeks after his death,
Sanchez wanted “to die myself.” When Uribe‟s little sister saw his body at the
funeral, she ran out crying and nearly ran into traffic. Shortly after Uribe‟s
murder, the family moved to Tennessee.
     Cindy Durbin, Chuck Durbin‟s wife, recounted the events on the night of the
murders. She described telling Chuck that she loved him and did not want him to
die. Chuck raised his hands to his head, and tried to talk, but only made noises.
Only after responding paramedics told her Chuck was dead did she tell them she
also had been shot because Chuck “was hurt worse than I was.” Telling their
children their father was dead “was the hardest thing” she had ever done. The
family received counseling; their daughter Natasha received more than the other
                                         10
children because she witnessed her father‟s murder. Natasha died from influenza
about a year before Cindy‟s testimony. It was difficult to deal with her death
without Chuck. Their son was slightly autistic, had a speech impediment, and for
more than a year after Chuck‟s murder, would hide whenever the doorbell rang at
night. He “still says he is looking for Chuck.”
     Ginger Colwell, Chuck‟s mother, testified she was close to Chuck and saw
him every day. She described Cindy calling on the night of the murders and
asking Colwell to pick up the children, seeing police cars when she arrived, and
being told Chuck was all right. She took the children to her house. Natasha told
Colwell, “[G]randmother, they were calling Juan a traitor.” Colwell asked if
Chuck said anything. Natasha said he told her to run and hide. Natasha put a
pillow over her two siblings, and “pulled the covers up so they wouldn‟t get hurt.”
At 4:00 a.m. the next day, Colwell learned from her son Randy of Chuck‟s death.
     Randy Durbin, Chuck Durbin‟s younger brother by two years and only
sibling, testified that their mother was a single parent, and Chuck had therefore
been a predominant male figure in Randy‟s life. Randy described hearing from his
mother her concern that Chuck might have been shot, and going to Chuck‟s house
and seeing him alone on the living room floor, but being barred by police from
entering. Since Chuck‟s death, Randy had avoided being close to others because
of a fear of losing them.

           2. Defense evidence
     Michael Percy testified he had worked side by side with defendant from 1980
when defendant was hired to work at FMC Corporation (FMC) until 1995. Percy
was new in Madera, and defendant was the first person to befriend him.
Defendant moved into a leadership role quickly at FMC because of his mechanical
aptitude. He helped train other employees and was “[u]pbeat all the time.” Percy


                                         11
never observed defendant to have a problem with any employee, and he was
professional with customers. Percy described defendant as “one of the most
easygoing persons I know.” Although Percy could be difficult to work with,
defendant had never shown anger.
     Jerry Smith testified that he had worked with defendant at FMC for 15 years
and that he had supervised him for a number of years. Defendant was a “[r]eal
good man” and one of Smith‟s best friends. Defendant was a leader who was
consistently patient and worked well with both mechanics and engineers. He fixed
other employees‟ lawnmowers and chain saws without compensation.
     Ronald Edwards testified that he worked with defendant at FMC from 1985
to 1995. For a time they were also neighbors. Edwards described one incident
when Edwards was about to fight with a different neighbor and defendant calmed
everyone down and told Edwards, “[T]hat‟s not the right way to handle it.”
     The week after Little Pete was shot, defendant told Edwards what had
happened and said he had talked to Little Pete about “how he is going to have to
let this go. And just let bygones be bygones. [Defendant] was afraid something
was going to happen to [Little Pete] even worse than what had already happened.
He didn‟t want things to escalate any further.”
     Joe Rangel testified that he was defendant‟s youngest brother. Joe was
46 years old and defendant was about 51 years old. When Joe and defendant were
children, the family worked in seasonal agriculture and struggled economically.
They followed work from state to state, and had lived in Texas, Washington, Utah,
and Arizona. When they moved to Madera, their father contracted tuberculosis,
and was placed in a sanitarium. Defendant had finished only the eighth grade but
dropped out of school without complaint to support the family. This sacrifice
allowed Joe and a third brother to graduate from high school. About the time their
father was able to work again, defendant joined the Navy. His service influenced
                                        12
Joe to join the Army National Guard after high school. In addition to FMC,
defendant had worked for Madera Glass, Bob‟s Cyclery, and for a crop dusting
firm. Once defendant married, he and Joe remained close but had little contact.
Their respective families were not close.
     Deanna Ramirez, defendant‟s stepdaughter, testified that defendant was
loving and caring, and never referred to her as his stepdaughter but always as his
daughter. He took her and her siblings to Magic Mountain and Santa Cruz,
camping, the zoo, and to many restaurants and movies. He helped Deanna with
her homework and was always involved in school activities. When she was about
26 years old, her biological father, whom she had never known, died. Defendant
took her and her sister and mother to his funeral in Mexico. When Deanna‟s
biological family excluded her and her sister at the funeral, defendant told them he
loved them and he would always be their dad.
     Deanna became pregnant at about 16 years of age, and the child‟s father left
her. Deanna‟s mother threw her out of the house, but defendant urged her to come
home and helped care for Deanna‟s child so that Deanna could finish high school.
Deanna‟s daughter was now 12 years old and was close to defendant.
     A family relative named Yolanda and her friend Roy, both of whom had
Down‟s syndrome, also lived for many years with the family, and defendant
treated them like everyone else. When Deanna was 16 years old, her four young
cousins came to live with them because their mother had died. Defendant treated
them as his children. On cross-examination, Deanna agreed with the prosecutor
that defendant received payment apparently from the state for supporting these
individuals.
     Josephine Reyes testified that she had lived with defendant for about 16 years
from the time she was about one year old. Defendant treated her as his daughter.
Josephine‟s biological father disowned her because her complexion was lighter
                                        13
than that of her sister. Defendant told Josephine he would always accept her and
that he was there for her.
     Angela Marie Chapa testified that although she and Little Pete were not
married, she considered defendant her father-in-law. In 1993, when Angela
became pregnant, she moved in with defendant and his wife. Defendant was
emotionally and financially supportive, and treated Angela like a daughter. He
frequently spent time with her daughter Alexis, and he and his wife often
socialized with Angela and Little Pete. When Little Pete was shot, defendant cried
both that night and the next day. On cross-examination, Angela said Little Pete
was only in the hospital for a couple of hours, and did not require surgery but
received stitches.
                              II. DISCUSSION

       A. Pretrial Issues

           1. Representative cross-section
     Six separate groups of prospective jurors were called to the trial court for
jury duty; one panel for each of the morning and afternoon sessions of three
consecutive court days. Some prospective jurors were excused on the basis of
hardship and the remainder were asked to fill out questionnaires and directed to
return on a specified day. The first three groups were instructed to return on one
day and the other three groups were instructed to return on the following day.
When they returned, some of the prospective jurors were called into the jury box
and subjected to individual voir dire.
     Defendant contends that, as a result, the prospective jurors were not called
into the jury box for individual voir dire by a random process because only
prospective jurors from at most the first three panels were called into the jury box
for the exercise of peremptory challenges, and a jury had been selected before


                                         14
prospective jurors in the later panels were reached. He further asserts that there
were eight Hispanic persons in the panels from which the jury was drawn, but
26 Hispanic prospective jurors in the later panels that were not reached. He
contends the jury selection procedure resulted in an underrepresentation of
Hispanic prospective jurors in violation of his right to a representative cross-
section of the community. We reject the claim.
     We have held that, “[t]o establish a prima facie violation of the Sixth
Amendment‟s fair cross-section requirement, defendant would have to
demonstrate: (1) the group allegedly excluded was a distinctive group in the
community; (2) the representation of that group in the venire from which his jury
was selected was not fair and reasonable in relation to the number of such persons
in the community; and (3) the underrepresentation was due to systematic exclusion
of that group in the jury selection process.” (People v. Rogers (2006) 39 Cal.4th
826, 858; see Duren v. Missouri (1979) 439 U.S. 357, 364.)
     Here, defendant does not challenge the composition of the venire. Rather, he
challenges the composition of the panels from which the jury was selected.
Although the terms are sometimes used interchangeably, we have explained that a
“ „venire‟ is the group of prospective jurors summoned from a larger list of
eligible jurors,” while a “ „panel‟ is the group of jurors from the venire assigned to
a court for selection of the trial jury.” (People v. Ramos (1997) 15 Cal.4th 1133,
1152, fn. 1.) “[I]n many cases, particularly lengthy capital prosecutions, several
panels are assigned to a courtroom during the selection of the trial jury.” (People
v. Bell (1989) 49 Cal.3d 502, 525.)
     Defendant neither objected below to the panels nor moved to quash the
venire, and the claim is therefore forfeited on appeal. (People v. Carrasco (2014)
59 Cal.4th 924, 957.) But even had defendant preserved the issue, defendant‟s
claim would fail on the merits. Even assuming defendant could satisfy the other
                                          15
prongs of the test, defendant fails to show that any underrepresentation of
Hispanics in the panels from which the jury was ultimately selected was due to
systematic exclusion of that group in the jury selection process, as opposed to the
random order in which members of the venire were called to the trial department
for selection of the trial jury. (People v. Seaton (2001) 26 Cal.4th 598, 638
(Seaton) [there was no evidence that the jury selection process systematically
excluded any racial or ethnic group when certain prospective jurors were not
among those called by the clerk because they were among the last jurors
questioned in voir dire].)
     Defendant further asserts the challenged jury selection procedure “violated
the statutory guarantee of randomness in jury selection.” Again, this claim is
forfeited because defendant never raised it below. The claim fails on the merits in
any event. Defendant observes that Code of Civil Procedure section 222,
subdivisions (a) and (b), provide that unless “the jury commissioner has provided
the court with a listing of the trial jury panel in random order,” “the clerk shall
randomly select the names of the jurors for voir dire, until the jury is selected or
the panel is exhausted.” Defendant claims “the statutory . . . guarantee of
randomness is defeated when multiple . . . panels are called for trial of a capital
case,” but he does not explain how this is so, nor is any reason apparent. Nor does
defendant identify any statutory provision that required the trial court to conduct
voir dire randomly from the combined group of all six panels.

           2. Defense challenges for cause
     Defendant contends the trial court erred in denying his challenge for cause to
Juror No. 1, who sat on his jury. Defendant had challenged Juror No. 1 after she
responded on voir dire that she did not think she would consider a sentence of life
imprisonment if defendant was “found guilty of at least one count of willful,


                                          16
deliberate, and premeditated murder.” Juror No. 1 was then questioned by the
prosecutor and the court and affirmed that she could listen to mitigating and
aggravating evidence and then weigh that evidence before deciding what penalty
to impose. The court then denied the challenge. Defendant‟s claim is forfeited
because defendant did not use an available peremptory challenge to remove Juror
No. 1. “ „ “As a general rule, a party may not complain on appeal of an allegedly
erroneous denial of a challenge for cause because the party need not tolerate
having the prospective juror serve on the jury; a litigant retains the power to
remove the juror by exercising a peremptory challenge. Thus, to preserve this
claim for appeal we require . . . that a litigant actually exercise a peremptory
challenge and remove the prospective juror in question.” ‟ ” (People v. Nunez and
Satele (2013) 57 Cal.4th 1, 26 (Nunez and Satele); see generally People v. Mills
(2010) 48 Cal.4th 158, 186.) Defendant “failed to do so, and cannot now
complain about the trial court‟s asserted error.” (Nunez and Satele, at p. 26.)

           3. Retention of Jurors No. 9 and No. 12
     After jury selection and before opening statements, Jurors No. 9 and No. 12
came forward regarding their relationships with potential trial witnesses.
Defendant contends that the trial court erred in failing to discharge these jurors.
We disagree.

               a. Juror No. 9
     After the jury was sworn and before opening statements, Juror No. 9
contacted the trial court and said she was acquainted with Randy Durbin, who,
counsel explained, was the brother of victim Chuck Durbin. In a hearing outside
the presence of the jury, Juror No. 9 said that about four years earlier, Randy
Durbin had, on occasion, apparently been her substitute water aerobics instructor
at the Madera Athletic Club. The juror‟s husband was currently taking a class


                                          17
taught by Randy Durbin at Madera College, and Juror No. 9 had “attended a few
of the classes.” The court asked whether “[a]nything about that would have any
effect on your ability to be fair and impartial to both sides in this case?” She
replied, “No, I don‟t think so. I just wanted everybody to be aware of that.”
     Defense counsel noted that Randy Durbin might be a witness at the penalty
phase, and asked Juror No. 9 if she was aware Randy and victim Chuck Durbin
were brothers. She replied, “Right.” Counsel asked, “When it comes down to the
penalty phase, the fact that you have had a past and what appears to be [an]
ongoing relationship with Randy Durbin, do you feel that that would affect you in
any way in the penalty phase?” Juror No. 9 replied: “No, I don‟t think so. We are
not personal friends or anything. And I am not going to go to class anymore
because of that. So nothing comes of it.” Neither counsel had any further
questions.
     Defendant then moved to reopen jury selection, use a peremptory challenge
on Juror No. 9, and have her replaced by an alternate. Defense counsel said that
on voir dire it had been “a very close question whether we were going to use a
peremptory challenge” because of Juror No. 9‟s “background and many of her
family members being in the correctional area.” Defense counsel said: “I am not
saying [Juror No. 9] intentionally kept from us this information” because “if that
were the case, she wouldn‟t have told us now. However, it seems rather incredible
to me given her relationship with Randy, that it didn‟t come out during voir dire.
And there was every opportunity for it to come out.”
     The court ruled that Juror No. 9 could not be removed unless she was
“disqualif[ied],” and there was no basis for doing so. The court stated: “She is not
personal friends with this Randy Durbin. Apparently he went to the same gym she
did four years ago. And apparently this Randy Durbin teaches her husband. And
she had gone to class a couple of times with him. There‟s no relationship there
                                         18
whatsoever. . . . And she has indicated it would have no effect.” Defendant then
“challenged” Juror No. 9 for cause, in essence moving to discharge her for cause,
asserting there was no reason for Juror No. 9 not to have brought up the issue on
voir dire. The court denied the challenge, stating: “Well, she certainly didn‟t
intentionally mislead counsel, [or] the court in voir dire. This person was not
somebody that she is so well acquainted with she would necessarily recall that she
knew who he was. And there‟s no evidence of any personal relationship . . . . So I
see no bias or prejudice. She seems to be forthright in bringing that to our
attention.” The court stated that its ruling was “without prejudice to renewing
your motion upon looking further into her background or upon” legal research. 5
Defendant did not renew the motion. Randy Durbin testified at the penalty phase.
     Penal Code section 1089 “ „authorizes the trial court to discharge a juror at
any time before or after the final submission of the case to the jury if, upon good
cause, the juror is “found to be unable to perform his or her duty.” ‟ ” (Nunez and
Satele, supra, 57 Cal.4th at p. 55.) “ „[W]hen a trial court‟s denial of a motion to
discharge a juror is supported by substantial evidence, it will be upheld.‟ ”
(People v. Maciel (2013) 57 Cal.4th 482, 543 (Maciel).)
     Substantial evidence supports the trial court‟s ruling here. The court, which
was in a position to observe Juror No. 9‟s demeanor, found no evidence of
disqualifying bias. Nor does anything in Juror No. 9‟s conduct — contacting the
court right after voir dire and before opening statements to mention she knew
Randy Durbin — or her subsequent voir dire statements reveal actual bias. (See
Maciel, supra, 57 Cal.4th at pp. 543-544 [upholding denial of motion to discharge

5      The trial court actually said that its ruling was “not without prejudice to
renewing [the] motion,” but in context it is apparent the court meant “without
prejudice to renewing [the] motion.”


                                          19
juror who worked at the same jail as two anticipated penalty phase witnesses,
where the trial court found the juror appeared to be honest based on his answers
and demeanor and there was no evidence he had prejudged any issue]; People v.
McPeters (1992) 2 Cal.4th 1148, 1174-1175 [upholding denial of motion to
remove juror where trial court found juror‟s nondisclosure inadvertent and no bias
on his part].)

                 b. Juror No. 12
     Juror No. 12 said she had known a Ginger Colwell, who, counsel explained,
was the mother of victim Chuck Durbin. Juror No. 12 said her sister-in-law‟s
brother had married “this Ginger Colwell,” and that Juror No. 12 had not spoken
to her in at least 15 years. The trial court asked, “So the fact that she may testify
in this case would not have any effect on your ability to fairly decide the case?”
Juror No. 12 replied, “No.” The court invited inquiry and both parties replied,
“No questions.”
     Defendant did not move for discharge of Juror No. 12. The claim is therefore
forfeited on appeal. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47-
48 [failure to challenge for cause purportedly biased jurors “forfeit[s] any
appellate claim of error in the seating of those jurors”].) In any event, defendant
merely mentions Juror No. 12‟s statements concerning her prior relationship to
Ginger Colwell, without making any attempt to explain how her statements
demonstrate disqualifying bias. No such bias is apparent from the record.

       B. Guilt Phase Issues

            1. Sufficiency of the evidence
     Defendant contends that there is no substantial evidence he premeditated
Chuck Durbin‟s murder and, therefore, his conviction must be reduced from first



                                          20
degree to second degree murder. He further contends no substantial evidence
supports the jury‟s finding that he personally used a gun in Juan Uribe‟s murder.
     “ „When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence
that is reasonable, credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.‟ [Citation.] We
determine „whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.‟ [Citation.] In so doing, a reviewing court
„presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.‟ ” (People v. Edwards (2013) 57 Cal.4th
658, 715 (Edwards).)

               a. Durbin murder
     Substantial evidence supports the jury‟s finding that defendant premeditated
Durbin‟s murder. The evidence demonstrated defendant and his son armed
themselves and went in search of Uribe to kill him. They located Uribe at
Durbin‟s house. Defendant could see from outside Durbin‟s house that several
people were inside, yet defendant continued with his plan to kill Uribe. The jury
could reasonably conclude from this evidence that defendant not only
premeditated Uribe‟s death but also the death of anyone inside the house who
interfered with that plan. (See People v. San Nicolas (2004) 34 Cal.4th 614, 657-
659 (San Nicolas) [substantial evidence of premeditation when the defendant saw
the second victim‟s reflection in a mirror and turned around and stabbed her,
perhaps to eliminate her as a witness to the first murder]; People v. Bolin (1998)
18 Cal.4th 297, 331-333 (Bolin) [although one of the murder victims was a


                                         21
stranger to the defendant, the defendant may have been motivated to eliminate
witnesses to the first victim‟s murder and to protect his marijuana crop from theft
or exposure to law enforcement].) Moreover, Durbin‟s head and neck wounds
were consistent with bullets fired from defendant‟s gun, and this manner of killing
further supports a finding of deliberation.6 (San Nicolas, at pp. 658-659; Bolin, at
p. 332.)

               b. Firearm use
     Defendant contends there is no substantial evidence he personally used a
firearm in the death of Juan Uribe. The jury, however, found not true the
allegation that defendant personally used a firearm to kill Uribe.

           2. Admission of hearsay statements
     Defendant contends that admitting hearsay statements by Little Pete and
Mary Rangel violated his rights under the confrontation clause of the Sixth
Amendment to the federal Constitution. (Crawford v. Washington (2004) 541
U.S. 36, 59-60, 68 (Crawford).) We disagree.
     As noted above, Jesse Rangel testified that Little Pete telephoned him twice
on the night of the murders and made incriminating statements, and made further
incriminating statements to him in person during their visit to Frank Sr.‟s house in
Fresno. Erica Rangel, Jesse‟s wife, testified to statements Mary Rangel made to
defendant. (See ante, at pp. 5-7.) Over defendant‟s objection, the trial court
admitted Little Pete‟s statements as statements against interest and Mary Rangel‟s
statements as adoptive admissions. (Evid. Code, §§ 1221, 1230.)


6      Defendant asserts the jury found not true the personal use of a firearm
allegation for Durbin‟s murder, and contends this demonstrates the jury found the
evidence of murder lacking. The jury in fact found the personal use allegation
true.


                                         22
     Defendant claims that admitting Little Pete‟s and Mary Rangel‟s statements
violated his Sixth Amendment right to confront the witnesses against him. In
Crawford, supra, 541 U.S. 36, the United States Supreme Court overruled Ohio v.
Roberts (1980) 448 U.S. 56, 66 (Roberts), which had held that the confrontation
right does not bar admission of the out-of-court statements of an unavailable
witness if the statements “bear[] adequate „indicia of reliability.‟ ” Rejecting this
approach, Crawford held that, in general, admission of “testimonial” statements of
a witness who was not subject to cross-examination at trial violates a defendant‟s
Sixth Amendment right of confrontation, unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. (Crawford, at pp. 59-60,
68.) Although the court in Crawford “did not offer an exhaustive definition of
„testimonial‟ statements,” the court has since clarified that “a statement cannot fall
within the Confrontation Clause unless its primary purpose was testimonial” (Ohio
v. Clark (2015) 576 U.S. ___, ___-___ [135 S.Ct. 2173, 2179-2180]) — that is to
say, unless the statements are given in the course of an interrogation or other
conversation whose “ „primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.‟ ” (Id. at p. 2180, quoting Davis
v. Washington (2006) 547 U.S. 813, 822; see Ohio v. Clark, at pp. 2180-2181
[noting that “the primary purpose test is a necessary, but not always sufficient,
condition for the exclusion of out-of-court statements under the Confrontation
Clause”].) Under this test, “[s]tatements made to someone who is not principally
charged with uncovering and prosecuting criminal behavior are significantly less
likely to be testimonial than statements given to law enforcement officers.” (Id. at
p. 2182.) The court in Ohio v. Clark, however, “decline[d] to adopt a rule that
statements to individuals who are not law enforcement officers are categorically
outside the Sixth Amendment.” (Ibid.) A court also considers the formality “ „of
the situation and the interrogation‟ ” in determining the primary purpose of a
                                          23
challenged statement. (Id. at p. 2180.) “In the end, the question is whether, in
light of all the circumstances, viewed objectively, the „primary purpose‟ of the
conversation was to „creat[e] an out-of-court substitute for trial testimony.‟ ”
(Ibid.; see id. at p. 2183.)

                a. Forfeiture
       The Attorney General asserts that defendant has forfeited his confrontation
clause challenge to Mary Rangel‟s statements because he failed to object on this
ground at his 1998 trial. In 1998, governing law in California held that admission
of a hearsay statement as an adoptive admission did not implicate the defendant‟s
Sixth Amendment confrontation right. (People v. Silva (1988) 45 Cal.3d 604, 624
(Silva); People v. Preston (1973) 9 Cal.3d 308, 315-316 (Preston).) This court
had stated: “[B]y reason of the adoptive admissions rule, once the defendant has
expressly or impliedly adopted the statements of another, the statements become
his own admissions, and are admissible on that basis as a well-recognized
exception to the hearsay rule. (See Ohio v. Roberts (1980) 448 U.S. 56, 65-66.)
Being deemed the defendant‟s own admissions, we are no longer concerned with
the veracity or credibility of the original declarant. Accordingly, no confrontation
right is impinged when those statements are admitted as adoptive admissions
without providing for cross-examination of the declarant.”7 (Silva, at p. 624.)
       In light of Silva and Preston, defendant‟s failure to object on confrontation
clause grounds during his 1998 trial “ „was excusable, since governing law at the


7      As defendant notes, even after Crawford, supra, 541 U.S. 36, this court has
at times applied a similar analysis to hold that admission of a hearsay statement as
an adoptive admission does not implicate a defendant‟s Sixth Amendment
confrontation right. (See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 660-662;
People v. Combs (2004) 34 Cal.4th 821, 842.) We need not consider this issue
here because Mary Rangel‟s statements were not testimonial in any event.


                                          24
time . . . afforded scant grounds for objection.‟ [Citation.] „ “[W]e have excused a
failure to object where to require defense counsel to raise an objection „would
place an unreasonable burden on defendants to anticipate unforeseen changes in
the law and encourage fruitless objections in other situations where defendants
might hope that an established rule of evidence would be changed on appeal.‟ ” ‟
[Citation.]” (Edwards, supra, 57 Cal.4th at p. 705.) Defendant‟s argument is
based on the United States Supreme Court‟s decision in Crawford, which was not
issued until well after his trial concluded. As the United States Supreme Court has
observed, the “Crawford rule is flatly inconsistent with the prior governing
precedent, Roberts, which Crawford overruled.” (Whorton v. Bockting (2007)
549 U.S. 406, 416.) We therefore conclude that in a case tried before Crawford, a
defendant does not forfeit a Crawford challenge by failing to raise a confrontation
clause objection at trial. (See People v. Chism (2014) 58 Cal.4th 1266, 1287-
1288, fn. 8 [“[B]ecause defendant‟s counsel could not have anticipated Crawford‟s
sweeping changes to federal confrontation clause case law, he did not forfeit this
claim by failing to object to the admission of [the] statements on federal
constitutional grounds,” but instead raising only a hearsay challenge.]; accord,
People v. Kopatz (2015) 61 Cal.4th 62, 88; see People v. Pearson (2013) 56
Cal.4th 393, 462 [Crawford “represents an unforeseen change in the law „that
competent and knowledgeable counsel reasonably could [not] have been expected
to have anticipated‟ at defendant‟s [pre-Crawford] trial, and excuse[s] his failure
to object.”].)8

8       As to other claims in which defendant alleges for the first time that the error
complained of violated his federal constitutional rights, the new claims are not
forfeited to the extent that in doing so defendant has “raised only a new
constitutional „gloss‟ on claims preserved below. . . . However, „[n]o separate
constitutional discussion is required, or provided, when rejection of a claim on the
                                                           (footnote continued on next page)

                                          25
        We acknowledge that our approach to this issue has not been entirely
consistent. (See, e.g., People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214
[defendant forfeited Crawford challenge in case tried before Crawford by failing
to object on confrontation grounds, but Crawford challenge lacked merit in any
event]; People v. Lopez (2013) 56 Cal.4th 1028, 1065 [same]; People v. Riccardi
(2012) 54 Cal.4th 758, 801, fn. 21 [same]; Riccardi, at pp. 826-827, fn. 33 [same];
People v. Dement (2011) 53 Cal.4th 1, 22-23 (Dement) [same].) To the extent
these cases suggest that counsel may be faulted for failing to object on Crawford
grounds in a case tried before Crawford was decided, we now expressly reject any
such suggestion.
        We also clarify that the relevant inquiry is not, as some of our cases might
be read to suggest, whether the defendant‟s Crawford challenge relies on the same
facts and legal standards as a challenge made on hearsay or other state law
grounds. (See People v. Gutierrez (2009) 45 Cal.4th 789, 809, 812 [confrontation
clause claim not forfeited on appeal when only a hearsay objection was asserted
below, either because the new argument does not invoke facts or legal standards
different from those the trial court was asked to apply or the appellate claim “is the
kind that required no trial court action to preserve it”]; see also, e.g., People v. Loy
(2011) 52 Cal.4th 46, 66 [citing People v. Gutierrez for the proposition that a
defendant may raise a confrontation clause challenge on appeal “to the extent he
argues that the erroneous overruling of the objection actually made also had the
consequence of violating his federal constitutional rights”].) A Crawford


(footnote continued from previous page)

merits necessarily leads to rejection of [the] constitutional theory . . . .‟ ” (People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant, Smith and
Wheeler).)


                                          26
objection generally requires a court to consider whether statements are testimonial,
and, if so, whether a witness was unavailable and the defendant had a prior
opportunity for cross-examination. This invokes different legal standards than, for
example, a hearsay objection, which generally requires a court to consider whether
the foundational requirements for admission of particular hearsay have been
satisfied. (See People v. Redd (2010) 48 Cal.4th 691, 730, fn. 19 [objection that
asserted hearsay exception lacked foundation “presented legal issues different
from those underlying an objection that the admission of testimony would violate
the confrontation clause”].) For present purposes, however, the relevant question
is whether requiring defense counsel to raise an objection “ „ “ would place an
unreasonable burden on defendants to anticipate unforeseen changes in the
law.” ‟ ” (Edwards, supra, 57 Cal.4th at p. 705.) Because that standard is
satisfied here, we conclude that defendant has not forfeited his Crawford claim.
                b. Merits
     Turning to the merits of defendant‟s confrontation clause claim, we conclude
the statements by Little Pete and Mary Rangel were not made to law enforcement
officers, nor were they otherwise made under circumstances suggesting a primary
purpose of creating evidence for defendant‟s prosecution. The statements
therefore were not testimonial. (Cf. Ohio v. Clark, supra, 576 U.S. at p. ___ [135
S.Ct. at p. 2181] [three-year-old‟s statements to his preschool teachers not
testimonial because they “clearly were not made with the primary purpose of
creating evidence for [the defendant‟s] prosecution”].) Thus their admission did
not violate defendant‟s rights under the confrontation clause.
     Defendant further contends that, even if the statements were nontestimonial,
they were unreliable under Ohio v. Roberts, supra, 448 U.S. 56, and for that
reason should have been excluded under the confrontation clause. Defendant‟s
argument rests on a misapprehension of the confrontation guarantee as elaborated
                                         27
in Crawford. The court in Crawford explained that while “the Clause‟s ultimate
goal is to ensure reliability of evidence, . . . it is a procedural rather than a
substantive guarantee. It commands, not that evidence be reliable, but that
reliability be assessed in a particular manner” — that is, by ensuring that
testimonial hearsay be “test[ed] in the crucible of cross-examination.” (Crawford,
supra, 541 U.S. at p. 61.) As the court has since affirmed, “[i]t is the testimonial
character of the statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the Confrontation
Clause.” (Davis v. Washington, supra, 547 U.S. at p. 821, italics added.) Thus,
“the court has made clear that Roberts, supra, 448 U.S. 56, and its progeny are
overruled for all purposes, and retain no relevance to a determination whether a
particular hearsay statement is admissible under the confrontation clause.”
(People v. Cage (2007) 40 Cal.4th 965, 981, fn. 10.)
     Defendant further argues that admission of Mary Rangel‟s out-of-court
statement violated his right to confront the witnesses against him because his
silence did not manifest his adoption or belief in the truth of his wife‟s statement.
He argues that he “was not in a position to protest since anything he said would
seem to be an accusation of his own son and moreover would be guaranteed to
launch a further domestic quarrel with his wife.” Whether defendant‟s silence
manifested his adoption or belief in the truth of his wife‟s accusation was an issue
of fact for the jury to determine. The trial court did not err in admitting the
evidence.
     For the first time in his reply brief, defendant asserts that Little Pete‟s
statements to Jesse Rangel should be considered testimonial because “Jesse was
recruited as a police agent” in New Mexico. Defendant explains that Jesse gave a
statement to police in New Mexico and was flown back to Madera at county
expense. This claim is forfeited. “Obvious reasons of fairness militate against
                                            28
consideration of an issue raised initially in the reply brief.” (Varjabedian v. City
of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) The claim also lacks merit. Even if
these facts were sufficient to demonstrate that Jesse was a police agent, Jesse went
to New Mexico after defendant and Little Pete made their incriminating
statements to him. Whatever Jesse‟s motives may have been in later describing
those conversations to law enforcement officials, defendant identifies no reason to
think that Little Pete made the statements in question in the course of a
conversation whose primary purpose was to create evidence for defendant‟s later
prosecution.
     Defendant also contends for the first time in his reply brief that the trial court
erred under Evidence Code section 12309 in admitting Little Pete‟s statements to
Jesse Rangel because Jesse had a motive to lie and his accurate testimony
concerning the details of the crime could be explained by his own involvement.
Defendant conceded below that Little Pete‟s statements were statements against
penal interest, but claimed they were insufficiently reliable to be admissible under
Evidence Code section 1230.
     Again, “[i]t is axiomatic that arguments made for the first time in
a reply brief will not be entertained because of the unfairness to the other party.”
(People v. Tully (2012) 54 Cal.4th 952, 1075.) In any event, the argument lacks
merit. Here, defendant simply challenges Jesse Rangel‟s trustworthiness. We have
previously rejected the argument that “in considering the admissibility of evidence

9       Evidence Code section 1230 provides in relevant part: “Evidence of a
statement by a declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of . . . criminal
liability . . . that a reasonable man in his position would not have made the
statement unless he believed it to be true.”



                                          29
offered under” Evidence Code section 1230 “the trial court could properly consider
the credibility of the in-court witness,” and observed that “[n]either the hearsay rule
nor its exceptions are concerned with the credibility of witnesses who testify
directly to the jury.” (People v. Cudjo (1993) 6 Cal.4th 585, 608 (Cudjo).)

             3. Asserted prosecutorial misconduct
        Defendant contends that the prosecutor committed several acts of misconduct
during closing argument. We disagree.
        “A prosecutor commits misconduct when his or her conduct either infects the
trial with such unfairness as to render the subsequent conviction a denial of due
process, or involves deceptive or reprehensible methods employed to persuade the
trier of fact.” (People v. Avila (2009) 46 Cal.4th 680, 711 (Avila).) “As a general
rule a defendant may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
“When attacking the prosecutor‟s remarks to the jury, the defendant must show”
that in the context of the whole argument and the instructions there was “ „a
reasonable likelihood the jury understood or applied the complained-of comments
in an improper or erroneous manner.‟ ” (People v. Centeno (2014) 60 Cal.4th 659,
667.)

                 a. Premeditation
        Defendant asserts that the prosecutor committed misconduct by arguing that
premeditation was demonstrated merely by evidence of an intent to kill.
Defendant did not object to the prosecutor‟s argument or seek an admonition, and
no exception to the general rule requiring an objection and request for admonition
applies. The claim is therefore forfeited. (Samayoa, supra, 15 Cal.4th at p. 841.)


                                          30
     The claim is also meritless. The prosecutor said: “And then the final
[element] is the willful, deliberate, and premeditation that‟s required in first degree
murder. And with respect to willful, deliberate, and premeditated does that mean
there has to be a certain amount of planning ahead of time? They get together and
they draw diagrams and everything? No. It does not mean that at all. It means
that the intent to kill, that the killing was accompanied by clear and deliberate
intent to kill. That this intent to kill was formed upon preexisting reflection and
that the slayer must have weighed and considered the question of killing, the
reasons for and against killing, and having in mind the consequences of killing, he
chooses to kill and he does kill. And does this mean that there‟s a duration of time
that‟s required? No. . . . [T]he law does not require any specific duration of time
for willful, deliberate, and premeditated murder. The true test is not the duration
of the time, but the extent of the reflection. A cold and calculated judgment can be
arrived at in a short period of time.”
     The prosecutor correctly described premeditation (Bolin, supra, 18 Cal.4th at
pp. 331-332), and did not argue that premeditation was established merely by
evidence of intent to kill, or otherwise “effectively omit[] the premeditation
element of first degree murder.” No misconduct is demonstrated.

                b. Implied malice
     Defendant contends that the prosecutor committed prejudicial misconduct by
arguing that implied malice murder required an intent to kill. He contends that, by
“rais[ing] the bar for conviction of implied malice second degree murder, a lesser
included offense to [first degree murder],” the prosecution‟s argument “made
conviction of premeditated first degree murder more likely.” We disagree.
     Defendant did not object to the prosecutor‟s argument or seek an admonition,
and no exception to the general rule requiring an objection and request for


                                          31
admonition applies. The claim is therefore forfeited. (Samayoa, supra, 15 Cal.4th
at p. 841.) The claim of error also lacks merit. Murder is “the unlawful killing of
a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).)
Malice “may be express or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow creature. It is
implied, when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.” (Pen. Code,
§ 188.) “ „We have interpreted implied malice as having “both a physical and a
mental component. The physical component is satisfied by the performance of „an
act, the natural consequences of which are dangerous to life.‟ [Citation.] The
mental component is the requirement that the defendant „knows that his conduct
endangers the life of another and . . . acts with a conscious disregard for life.‟
[Citation.]” [Citation.]‟ ” (People v. Bryant (2013) 56 Cal.4th 959, 965.)
     Here, the prosecutor said: “Now, you are going to be instructed on a lesser
included [offense] with respect to first degree murder and that [is] second degree
murder. And second degree murder is an unlawful killing of a human being with
malice aforethought. No premeditation or deliberation is required. But malice
aforethought means two different things when it comes to second degree murder.
It can either be express malice aforethought or the express intent to kill that I
referred to earlier or it can be implied. The law will in certain cases imply an
intent to kill. And the judge will instruct you that it‟s going to be implied when
the killing resulted from an intentional act, the natural consequences of that act
were dangerous to human life. And the act was deliberately performed with
knowledge of the danger, and with the conscious disregard for human life. So
even if you were not to find an intent to kill, an express intent to kill, the actions of
the defendant and his son in that house definitely were intentional. They knew the
consequences of a danger, that danger to human life. They had knowledge of the
                                           32
danger and the conscious disregard for human life at the time they committed
those acts. The law is going to imply an intent to kill in that case, second degree
murder. You just have to have an unlawful killing and either express or implied
intent to kill. And you don‟t need premeditation and deliberation. . . . But you
would only find . . . second degree murder if you find the defendant not guilty of
first degree murder.”
     The prosecutor did not say that implied malice murder required an intent to
kill, but that the law would “imply an intent to kill” under certain circumstances.
Although neither Penal Code section 188 nor our cases define implied malice as
an implied intent to kill, the prosecutor‟s statement as a whole correctly described
the elements of implied malice murder. Moreover, the trial court properly
instructed the jury on implied malice murder. Thus, even if the prosecutor had
misstated the elements of second degree implied malice murder, there is no
reasonable likelihood that any such misstatement would have affected the jury‟s
consideration of either that charge or the charge of premeditated first degree
murder.10

               c. Corroboration
     The trial court instructed the jury that Richard Diaz was an accomplice as a
matter of law and his testimony was subject to the rule requiring corroboration.
(Pen. Code, § 1111 [“A conviction can not be had upon the testimony of an


10      The court instructed the jury: “Murder of the second degree is also the
unlawful killing of a human being when: One, the killing resulted from an
intentional act. Two, the natural consequences of the act are dangerous to human
life. And three, the act was deliberately performed with knowledge of the danger
to, and with conscious disregard for human life. When the killing is the direct
result of such an act, it is not necessary to prove that the defendant intended that
the act would result in the death of a human being.”


                                         33
accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense . . . .”].) Defendant
contends the prosecutor committed misconduct by arguing that Diaz‟s testimony
was corroborated by the testimony of Jesse Rangel. We disagree. Defendant did
not object to the prosecutor‟s argument or seek an admonition, and no exception to
the general rule requiring an objection and admonition request applies. The claim
is therefore forfeited. (Samayoa, supra, 15 Cal.4th at p. 841.)
     The claim is also meritless. Defendant contends the prosecutor‟s statement
was misconduct because there was substantial evidence that Jesse Rangel was a
“possible accomplice,” and this “status . . . should have nullified any use of his
testimony to corroborate the testimony of Richard Diaz.”
     Defendant is correct that the testimony of one accomplice cannot corroborate
that of another accomplice. (See People v. Fauber (1992) 2 Cal.4th 792, 834.)
“ „Whether someone is an accomplice is ordinarily a question of fact for the jury;
only if there is no reasonable dispute as to the facts or the inferences to be drawn
from the facts may a trial court instruct a jury that a witness is an accomplice as a
matter of law.‟ ” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 430.) When
a person is not an accomplice as a matter of law, a defendant has the burden of
proving by a preponderance of the evidence that a witness was an accomplice in
the crime charged against the defendant. (Id. at p. 429; People v. Frye (1998) 18
Cal.4th 894, 967-969; People v. Tewksbury (1976) 15 Cal.3d 953, 967-968.) This
principle is reflected in the language of CALJIC No. 3.19.
     Here, the trial court offered to instruct the jury in the language of CALJIC
No. 3.19 to determine whether Jesse Rangel was an accomplice. Defendant
objected and the instruction was removed. Defense counsel said it would confuse
the jury to instruct it to decide if Jesse Rangel and Juan Ramirez were accomplices
when it also was instructed that Richard Diaz was an accomplice as a matter of
                                          34
law. Counsel objected to having the jury determine whether Jesse Rangel was an
accomplice “because . . . we will be saying that Jesse Rangel and Juan Ramirez
may have been the ones that actually committed this act.” Counsel added, “for
any court reviewing our decision,” it was “not that we don‟t want those. We
believe it changes the burden in viewing their testimony and puts the burden on us
to prove something to the jury which we don‟t otherwise have to prove. We just
have to raise reasonable doubt by our argument concerning Jesse Rangel and Juan
Ramirez.”
     Thus, rather than “prove something,” which apparently referred to
defendant‟s burden of proving by a preponderance of the evidence that Jesse
Rangel was an accomplice, defendant elected not to have the jury instructed in the
language of CALJIC No. 3.19. By so doing, he waived his opportunity for the
jury to decide whether Jesse was an accomplice, and cannot now claim the benefit
of accomplice corroboration rules. Rather, under these circumstances, nothing
precluded the jury from relying on Jesse Rangel‟s testimony to corroborate that of
Diaz, nor can the prosecutor be faulted for urging the jury to so rely. (See
generally People v. Romero and Self (2015) 62 Cal.4th 1, 32-33.)

            4. Asserted instructional error

                a. Flight
     The trial court instructed the jury in the language of CALJIC No. 2.52: “The
flight of a person immediately after the commission of a crime, or after he is
accused of a crime, is not sufficient in itself to establish his guilt, but is a fact
which, if proved, may be considered by you in the light of all other proved facts in
deciding whether a defendant is guilty or not guilty. The weight to which this
circumstance is entitled is a matter for you to decide.” (See Pen. Code, § 1127c.)
Defendant asserts that this instruction was erroneous because the trial court did not


                                            35
also instruct sua sponte on evidence of flight by third party suspects Richard Diaz
and Jesse Rangel. He claims the instruction is “unbalanced on this record,” and
“resulted in an unconstitutional shift in the burden of proof.” We reject the claim.
     The flight instruction was correct, and defendant‟s failure to propose any
modification to the instruction forfeits the claim of instructional error. (People v.
Capistrano (2014) 59 Cal.4th 830, 875.)
     The claim also lacks merit. Even if we assume for purposes of argument that
the standard flight instruction does not include flight by third persons, the trial
court had no sua sponte duty to modify the instruction to expressly include third
party flight.
     “ „It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by
the evidence.‟ ” (People v. Najera (2008) 43 Cal.4th 1132, 1136 (Najera).) These
general principles of law are those “vital to the jury‟s consideration of the
evidence” before it. (Id. at p. 1137.) We previously have concluded that when
“an instruction simply informs the jury that a fact or cluster of facts is not, without
more, substantial evidence of guilt under the ordinary legal rules set forth
elsewhere in the instructions,” there is no “duty on trial courts to provide such an
instruction sua sponte.” (Id. at p. 1139.) Thus, instructions as to consciousness of
guilt, motive, possession of recently stolen property, and evidence of other sexual
offenses or domestic violence, “while helpful in various circumstances, are not
vital to the jury‟s ability to analyze the evidence and therefore are not instructions
that must be given to the jury even in the absence of a request.” (Id. at pp. 1138-
1139, and cases cited.)
     Although a trial court is required by statute to instruct on flight when the
prosecution relies on evidence of flight by a defendant as tending to show guilt
(Pen. Code, § 1127c), there is no similar statutory requirement to instruct when the
                                           36
defense relies on flight by third parties. Nor does third party flight “qualif[y] as a
general principle of law vital to the jury‟s consideration of the evidence” such that
the jury must be instructed on it even in the absence of a request.11 (Najera,
supra, 43 Cal.4th at p. 1137.) Moreover, “[t]he logic of the inference” that such
flight could also indicate consciousness of guilt on the part of third parties would
have been “plain” to jurors, even in the absence of instruction to that effect.
(People v. Hartsch (2010) 49 Cal.4th 472, 503.) In addition, “the reasonable
doubt instructions give defendants ample opportunity to impress upon the jury that
evidence of another party‟s liability must be considered in weighing whether the
prosecution has met its burden of proof.” (Id. at p. 504.) Here, counsel in his
closing argument did not call attention to flight by either Richard Diaz or Jesse
Rangel, indicating any such flight was not central to the defense theory of the case.
     The trial court must instruct sua sponte as to defenses “ „ “that the defendant
is relying on . . . or if there is substantial evidence supportive of such a defense
and the defense is not inconsistent with the defendant‟s theory of the case.” ‟ ”
(San Nicolas, supra, 34 Cal.4th at p. 669.) Third party flight, however, is not a
defense. Rather such flight “ „is proffered in an attempt to raise a doubt on an
element of a crime which the prosecution must prove beyond a reasonable
doubt.‟ ” (Ibid.) As such, the burden falls on the defendant to request the
instruction. (Ibid.)

                b. Manslaughter
     Defendant contends the trial court erroneously failed to instruct sua sponte on
voluntary and involuntary manslaughter. We reject the claim.


11     We are not presented with the issue of whether a defendant is entitled to a
requested instruction on third party flight and express no view on it.


                                          37
     The trial court instructed the jury on first and second degree murder. “A trial
court has a sua sponte obligation to instruct the jury on any uncharged offense that
is lesser than, and included in, a greater charged offense, but only if there is
substantial evidence supporting a jury determination that the defendant was in fact
guilty only of the lesser offense.” (People v. Parson (2008) 44 Cal.4th 332, 348-
349.) No substantial evidence was presented here that warranted instruction on
voluntary or involuntary manslaughter.

                    (1) Voluntary manslaughter

                        (i) Provocation
     “ „Manslaughter, an unlawful killing without malice, is a lesser included
offense of murder.‟ [Citations.] „Although [Penal Code] section 192,
subdivision (a), refers to “sudden quarrel or heat of passion,” the factor which
distinguishes the “heat of passion” form of voluntary manslaughter from murder is
provocation.‟ ” (Avila, supra, 46 Cal.4th at p. 705.) “To be adequate, the
provocation must be one that would cause an emotion so intense that an ordinary
person would simply react, without reflection. . . . [T]he anger or other passion
must be so strong that the defendant‟s reaction bypassed his thought process to
such an extent that judgment could not and did not intervene.” (People v. Beltran
(2013) 56 Cal.4th 935, 949 (Beltran).) “ „ “[I]f sufficient time has elapsed for the
passions of an ordinarily reasonable person to cool, the killing is murder, not
manslaughter.” ‟ ” (Avila, at p. 705.)
     Here, there is no substantial evidence of provocation. Two weeks had
elapsed between the time Little Pete was grazed by a bullet and the murders. This
was sufficient time for “ „ “passion to subside and reason to return.” ‟ ” (People v.
Moye (2009) 47 Cal.4th 537, 550.) On the night of the murders, defendant armed
himself, drove around with others looking for Uribe‟s car and, the jury could


                                          38
reasonably infer, recruited others to help, including arranging for Avila to pick
them up after the attack. “These circumstances reveal a concerted effort to plan
and execute a surprise attack,” not rash action. (People v. Souza (2012) 54 Cal.4th
90, 115 [no substantial evidence of provocation when the defendant and
codefendant drove their mother, who claimed she had been attacked, around in an
unsuccessful effort to find the purported attacker‟s house, took their mother home
and, after she went to bed, armed themselves, recruited help from another, waited
outside the purported attacker‟s house, and obscured their faces with bandanas].)
Although defendant notes there was evidence that after Little Pete was shot, Jesse
Rangel and Tino Alvarez shot at Uribe‟s empty car, and that when Uribe later
accused Diaz of this shooting, Uribe‟s friend hit Diaz, there was no evidence
defendant knew of these events or that they would cause him to react in a manner
that “eclipse[d] reflection.” (Beltran, supra, 56 Cal.4th at p. 950.)
     Moreover, although defendant also notes without elaboration that there was
evidence he had been drinking on the night of the murders, the test whether
provocation is adequate is whether “an average, sober person would be so
inflamed that he or she would lose reason and judgment.” (People v. Lee (1999)
20 Cal.4th 47, 60.) Nor does voluntary intoxication “negate express malice so as
to reduce a murder to voluntary manslaughter.” (People v. Saille (1991) 54 Cal.3d
1103, 1117.)

                        (ii) Imperfect self-defense
     Defendant asserts the trial court was required to instruct sua sponte on
imperfect self-defense because there was evidence Durbin rushed into the living
room and defendant thought he was “running to get a gun.” No substantial
evidence supported such instruction.




                                         39
     “ „ “Under the doctrine of imperfect self-defense, when the trier of fact finds
that a defendant killed another person because the defendant actually, but
unreasonably, believed he was in imminent danger of death or great bodily injury,
the defendant is deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.” [Citation.]‟ ” (People v.
Manriquez (2005) 37 Cal.4th 547, 581.) This doctrine may not, however, be
invoked “by a defendant who, through his own wrongful conduct (e.g., the
initiation of a physical assault or the commission of a felony), has created
circumstances under which his adversary‟s attack or pursuit is legally justified. . . .
For example, the imperfect self-defense doctrine would not permit a fleeing felon
who shoots a pursuing police officer to escape a murder conviction even if the
felon killed his pursuer with an actual belief in the need for self-defense.” (In re
Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
     Here, defendant and his son, who were armed, broke into Durbin‟s home
while Durbin and his wife and young children were present. Defendant shot
Durbin when he rushed into the living room because defendant thought he was
“running to get a gun.” As defendant appears to concede in his reply brief,
because defendant was “the initial aggressor and the victim‟s response legally
justified, defendant could not rely on unreasonable self-defense as a ground for
voluntary manslaughter.” (Seaton, supra, 26 Cal.4th at p. 664; see Pen. Code,
§ 198.5 [resident “presumed to have held a reasonable fear of imminent peril of
death or great bodily injury” to himself, his family, or a member of the household
when he uses force against a person not a member of the family or household
“who unlawfully and forcibly enters” the residence].)




                                          40
                    (2) Involuntary manslaughter
     Defendant asserts the trial court erred in failing to instruct the jury sua sponte
on involuntary manslaughter as a lesser included offense based on defendant‟s
voluntary intoxication. We disagree.
     Penal Code section 192, subdivision (b), defines involuntary manslaughter as
“the unlawful killing of a human being without malice” during “the commission of
an unlawful act, not amounting to felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or without due caution and
circumspection.” “Voluntary intoxication can prevent formation of any specific
intent requisite to the offense at issue, but it can never excuse homicide.”
(People v. Boyer (2006) 38 Cal.4th 412, 469 (Boyer).) Hence, in general at the
time the defendant committed his crimes, voluntary intoxication could reduce a
criminal homicide to involuntary manslaughter only if the defendant was rendered
unconscious: “When a person renders himself or herself unconscious
through voluntary intoxication and kills in that state, the killing is attributed to his
or her negligence in self-intoxicating to that point, and is treated as involuntary
manslaughter.” (People v. Ochoa (1998) 19 Cal.4th 353, 423.)12
     Here, although there was evidence defendant had been drinking, there is no
evidence he was unconscious or otherwise unaware of his actions. Immediately

12      In 1995, the year these crimes occurred, Penal Code former section 22 (now
Penal Code section 29.4) “was amended to provide prospectively that when the
charge is murder, „voluntary intoxication is admissible solely on the issue . . . [of]
whether the defendant premeditated, deliberated, or harbored express malice
aforethought.‟ (Stats. 1995, ch. 793, § 1, p. 6149.)” (Boyer, supra, 38 Cal.4th at
p. 469, fn. 40.) Because the amendment took effect after these crimes were
committed, it does not apply here. (See generally People v. King (1993) 5 Cal.4th
59, 79 [“any statute „ “which makes more burdensome the punishment for a crime,
after its commission” ‟ violates the ex post facto prohibition of the United States
Constitution”].)



                                           41
after the murders, defendant told his coperpetrators that he had shot Durbin
because he thought Durbin was getting a gun. Later that night, defendant told his
nephew Jesse Rangel that he “put those motherfuckers on ice.” Shortly after the
murders, defendant told Frank Sr. that defendant and Little Pete “had went and
done a shooting,” and told Frank Jr. that “[t]hey went to the house and shot the
house up.” Defendant also attempted to fabricate an alibi. He gave police a
detailed description of his activities on the night of the murders, falsely claiming
to have worked at a convenience store. He manufactured a videotape to support
his false alibi. He also asked others to hide weapons used in the crimes.
Defendant gave Juan Ramirez a rifle that had fired casings found at the crime
scene and a gun that ballistics evidence established was “probably” one of the
murder weapons, asked Ramirez to dispose of the weapons, and added they “had
resolved their problem.” Defendant also gave Frank Jr. a .38-caliber revolver that
“match[ed]” the .38-caliber bullets found at the crime scene and asked him to
“hold this for me.” Defendant‟s efforts to fabricate an alibi and to hide the murder
weapons provide some additional indication that defendant had been aware of his
actions during the course of his offenses and therefore was not unconscious during
them. (Cf. People v. Halvorsen (2007) 42 Cal.4th 379, 416-419 [no substantial
evidence of unconsciousness when the defendant‟s own detailed testimony
regarding the shootings and the “complicated and purposive nature of his conduct”
during the offenses demonstrated he did not lack awareness during them]; People
v. Abilez (2007) 41 Cal.4th 472, 481, 516 (Abilez) [evidence did not “even hint[]
that defendant was so grossly intoxicated as to have been considered unconscious”
when he went to his mother‟s home, spoke to his brother, killed his mother and
then ransacked two bedrooms, loaded his mother‟s car with stolen items before
driving away, and then tried to sell the stolen goods].) Accordingly, the trial court


                                          42
did not err in failing to instruct sua sponte on involuntary manslaughter due to
voluntary intoxication.
     Moreover, any assumed error in failing to instruct on involuntary
manslaughter was harmless under any standard. (Abilez, supra, 41 Cal.4th at
p. 516.) The prosecution proceeded on a theory of premeditated murder, and the
court instructed the jury on the effect of voluntary intoxication on defendant‟s
ability to premeditate and deliberate.13 The jury found defendant guilty of the first
degree murders of Uribe and Durbin, and therefore necessarily found he had
premeditated and deliberated despite his use of alcohol. These mental states are
incompatible with unconsciousness.

                c. Voluntary intoxication
     Defendant contends the trial court erroneously failed to instruct sua sponte on
the effect of voluntary intoxication on his ability to form the intent to aid and abet
criminal conduct that resulted in Uribe‟s murder as a natural and probable
consequence. We reject the claim.
     “ „ “A person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of
the intended crime.” ‟ ” (People v. Favor (2012) 54 Cal.4th 868, 881.) Although
a defendant may present evidence of voluntary intoxication on the question of


13      The trial court instructed the jury: “In the crime[] of murder in the first
degree . . . , a necessary element is the existence in the mind of the defendant of
the mental state of premeditation and deliberation. If the evidence shows that the
defendant was intoxicated at the time of the alleged crime, you should consider
that fact in deciding whether defendant had the required mental state. If from all
the evidence you have a reasonable doubt whether the defendant formed that
mental state, you must find that he did not have such mental state.”


                                          43
whether he or she formed the intent to aid and abet a crime, intoxication is
irrelevant in deciding what is reasonably foreseeable in the context of the natural
and probable consequences doctrine. (People v. Mendoza (1998) 18 Cal.4th 1114,
1131, 1133-1134.) Here, the trial court did not instruct the jury it could find
defendant guilty of Uribe‟s murder under the natural and probable consequences
doctrine. Rather, the prosecution‟s theory was that defendant had aided and
abetted the murder; there was no evidence that defendant aided and abetted some
lesser “target” crime of which Uribe‟s murder was a natural and probable
consequence. The trial court did instruct the jury on the natural and probable
consequences doctrine as to Cindy Durbin‟s attempted murder, of which defendant
was acquitted, but there is no reasonable likelihood the jury understood this
instruction, which specifically referred to the charged offense of attempting to
murder Cindy Durbin, to pertain to defendant‟s culpability for Uribe‟s murder.14

               d. Accomplice testimony
     Defendant contends that the trial court erred in failing to sua sponte instruct
that the statements of Little Pete introduced through the testimony of Jesse Rangel
and Frank Rangel, Jr. were to be viewed with caution and required corroboration.
(Pen. Code, § 1111 [requiring accomplice testimony be corroborated]; see ante, at
pp. 34-35.) Not so.


14      The trial court instructed the jury: “One who aids and abets another in the
commission of a crime is not only guilty of that crime, but is also guilty of any
other crime committed by a principal which is a natural and probable consequence
of the crime originally aided and abetted. In order to find the defendant guilty of
the attempted murder of Cindy Durbin, you must be satisfied beyond a reasonable
doubt that: One, the crime of murder was committed. Two, the defendant aided
and abetted that crime. Three, that a co-principal in that crime committed the
crime of attempted murder. And four, the crime [of] attempted murder was a
natural and probable consequence of the commission of the crime of murder.”


                                         44
     Little Pete‟s statements did not require corroboration because he “did not
testify, nor were his „out-of-court statements made under questioning by police or
under other suspect circumstances.‟ (People v. Carrington (2009) 47 Cal.4th 145,
190 . . . ; see People v. Williams (1997) 16 Cal.4th 153, 245-246 . . . .) Hence no
instruction under [Penal Code] section 1111 was required.” (Maciel, supra,
57 Cal.4th at p. 527.)
     To the extent that he asserts it, defendant forfeited his claim that the jury
should have been instructed that Jesse Rangel was also an accomplice whose
testimony required corroboration because Jesse shot at Uribe‟s empty car the night
after Little Pete was shot, Cindy Durbin initially identified Jesse as one of the
shooters, and Jesse fled to New Mexico. As noted above, the trial court offered to
instruct the jury to determine whether Jesse Rangel was an accomplice, and, if so,
that his testimony required corroboration. (See ante, at pt. II.B.3.c.) Defendant
objected and the instruction was removed.

               e. Accessory
     Defendant contends the trial court erroneously refused to instruct the jury on
the lesser related offense of being an accessory to a felony in violation of Penal
Code section 32. (People v. Birks (1998) 19 Cal.4th 108, 136-137.) Not so. The
prosecutor objected to such an instruction. Under Birks, “instruction on a lesser
related offense is proper only upon the mutual assent of the parties.” (People v.
Taylor (2010) 48 Cal.4th 574, 622.)

       C. Penalty Phase Issues

           1. Exclusion of mitigating evidence
     During the defense case in the guilt phase, Fitzsimmons testified he had used
methamphetamine at the Durbin residence about 10 to 15 minutes before the
attack. Defendant contends that the trial court erred by excluding evidence that

                                          45
murder victim Juan Uribe was a drug dealer, victim Chuck Durbin was Uribe‟s
client and had a high level of methamphetamine in his system at the time of his
death, and there was drug paraphernalia in the Durbin home at the time of the
murders.15 Defendant asserts the “prosecution was offered a clear and direct path
to demonstrate that both [victims] were moral beacons, adept at the task of
parenting, whose presence would be missed,” “Uribe was cast as particularly
useful in providing income to the family,” although “the source of his income was
excluded,” and “Chuck Durbin was cast as a moral guidepost for his family
members.”
       Just as a prosecutor may present evidence rebutting a defendant‟s evidence
of his good character (People v. Rodriguez (1986) 42 Cal.3d 730, 791), a
defendant may present evidence rebutting the prosecution‟s evidence of a victim‟s
good character (People v. Duff (2014) 58 Cal.4th 527, 564-565 (Duff)).
Nonetheless, when a prosecutor presents evidence rebutting evidence of a
defendant‟s good character, “the scope of rebuttal must be specific, and evidence
presented or argued as rebuttal must relate directly to a particular incident or
character trait defendant offers in his own behalf.” (Rodriguez, at p. 792, fn. 24.)
Thus, when a defendant‟s mitigating evidence pertains solely to difficulties he has
encountered in his life and not his good character, the prosecutor is precluded from
introducing on rebuttal bad character evidence regarding the defendant. (People v.
Loker (2008) 44 Cal.4th 691, 725; People v. Ramirez (1990) 50 Cal.3d 1158, 1193
(Ramirez).) Similarly, when the prosecution‟s evidence simply describes the
effect the victim‟s death has had on his family and friends, a defendant is

15      The trial court permitted defendant to ask Martha Melgoza, Juan Uribe‟s
girlfriend, if she was aware of Uribe‟s acts of violence, and how that affected her
relationship with him, but the defense ultimately declined to do so.


                                          46
generally precluded from introducing bad character evidence regarding the victim.
(Duff, at p. 565; People v. Boyette (2002) 29 Cal.4th 381, 445 (Boyette).)
     “The right to present rebuttal, or „negative,‟ victim impact evidence to
counter evidence offered by the People in their penalty case-in-chief is subject to
the usual evidentiary constraints that proffered evidence must be relevant and
more probative than prejudicial. [Citations.] We review the trial court‟s decision
to limit or exclude rebuttal victim impact evidence on these grounds for abuse of
discretion.” (Duff, supra, 58 Cal.4th at p. 565.)
     Here, the prosecution evidence focused on the effect of the murders on
surviving family members and a friend, and not on the victims‟ character. (See
ante, pt. I.B.1.) Thus the evidence “left no misleading portrayal of the victim to
which the defendant‟s proffered negative impact evidence might offer relevant
rebuttal.” (Duff, supra, 58 Cal.4th at p. 565.) “Testimony from the victims‟
family members was relevant to show how the killings affected them, not whether
they were justified in their feelings due to the victims‟ good nature and sterling
character. Accordingly, defendant was not entitled to disparage the character of
the victims . . . .” (Boyette, supra, 29 Cal.4th at p. 445.) Although Uribe‟s mother
did testify without elaboration he was a “good brother” to his sisters and made
sure the family was fed and the bills were paid, the testimony did not suggest that
Uribe was uninvolved in misconduct, and the trial court therefore did not abuse its
discretion in determining that the testimony did not open the door to evidence of
Uribe‟s drug dealing. (See Ramirez, supra, 50 Cal.3d at p. 1193.)
     Defendant also contends that excluding this evidence “deprived the defense
of an opportunity to argue that dangerous drug users were in the Durbin house,
helping to explain if not excuse the use of deadly force.” More specifically, he
argues that “[a] self defense response would have been considered as more
reasonable in view of evidence that the occupants of the Durbin house were
                                         47
engaged in a pattern of serious drug abuse.” As previously explained (see ante,
pt. II.B.4.b.(1)(ii)), defendant had no right to claim imperfect self-defense because
he was the initial aggressor and Durbin‟s response to a home invasion by armed
assailants was legally justified. Defendant‟s argument that he should have been
permitted to introduce evidence of the victims‟ drug use to shore up his self-
defense argument is unpersuasive.

           2. Victim impact evidence
     Defendant contends that the trial court erred in admitting evidence that
Chuck Durbin‟s daughter Natasha died nearly two years after her father‟s murder,
and that his son had a relatively mild form of autism. This evidence was properly
introduced to show the effect of the murder on Cindy Durbin, who testified it was
difficult to deal with her daughter‟s death without her husband. The jury also
could reasonably infer it was difficult to deal with her son‟s disability without
Chuck‟s assistance. (People v. Brown (2004) 33 Cal.4th 382, 397-398 [their
recollections “simply served to explain why they continued to be affected by [the]
loss”].)

           3. Asserted confrontation clause violation
     Defendant contends that admitting statements Durbin‟s daughter Natasha
made to an officer and to her grandmother on the night of the murders
prejudicially violated his rights under the confrontation clause. Assuming, without
deciding, that the confrontation clause applies to penalty phase evidence, we reject
defendant‟s contention.
     As noted above, Durbin‟s daughter Natasha died from influenza nearly two
years after Durbin was killed. At trial, Corporal Ciapessoni testified he was the
first officer to arrive at Durbin‟s house on the night of the murders, and found
Cindy Durbin in the kitchen with her three crying children. Natasha told Corporal


                                         48
Ciapessoni she had been asleep in the living room and awoke to see two
unfamiliar men in the kitchen. She heard one of the men say, “Juan, you
disappointed us,” and then heard gunshots. She then observed two men leave the
residence. Natasha thought she could identify the men.
     Durbin‟s children were later taken by their grandmother, Ginger Colwell, to
Colwell‟s house. Natasha told Colwell, “[G]randmother, they were calling Juan a
traitor.” Colwell asked if Chuck said anything. Natasha said he told her to run
and hide. Natasha put a pillow over her two siblings, and “pulled the covers up so
they wouldn‟t get hurt.”
     Natasha‟s statements to her grandmother “clearly were not made with the
primary purpose of creating evidence for [defendant‟s] prosecution.” (Ohio v.
Clark, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2181].) Hence they were not
testimonial and, thus, were properly admitted. (Ibid.) Even assuming Corporal
Ciapessoni‟s testimony was erroneously admitted, that error was harmless beyond
a reasonable doubt. Evidence of Natasha‟s statement to Corporal Ciapessoni was
cumulative to her statement to her grandmother and to Cindy Durbin‟s guilt phase
testimony that one of the attackers said “Juan was a traitor.”

           4. Asserted instructional error

               a. Motive
     Defendant contends the trial court erroneously refused to instruct the jury
that defendant‟s motive for killing Uribe was a mitigating factor. In his proposed
instructions he requested the trial court instruct the jury to consider “[w]hether or
not the victim in whole, or in part, contributed to the extreme mental or emotional
state of the defendant.” There was no discussion of this proposed instruction, nor
was the proposed instruction read to the jury. The claim is therefore forfeited.



                                          49
(See People v. Homick (2012) 55 Cal.4th 816, 871 [failure to press for a ruling on
a requested limiting instruction forfeits any claim of error].)
     Defendant also requested that the court instruct the jury: “You may consider
the motive for the commission of the crime as a mitigating factor which extenuates
the gravity of the crime even though it is not a legal excuse for the crime and any
other aspect of the defendant‟s character or background that the defendant offers
as a basis for a sentence less than death.” The court refused this instruction,
saying it was confusing, given that the prosecutor would argue the motive
evidence was aggravating. The court correctly stated that both parties could argue
motive and that it was up to the jury to decide whether the motive evidence was
aggravating or mitigating.
     Defendant asserts the jury understood the court‟s instruction in the language
of Penal Code section 190.2, factor (k), to provide that “motive was not something
which could be considered at all in mitigation.” That instruction provided that the
jury may consider “[a]ny other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime and any sympathetic or
other aspect of the defendant‟s character, background or record that the defendant
offers as a basis for a sentence less than death, whether or not related to the
offense for which he is on trial.” There is no reasonable likelihood the jury
understood that instruction to provide that it could not consider defendant‟s motive
as a mitigating factor.

                b. Assessment of mitigating evidence
     Defendant contends the trial court erroneously refused to instruct the jury
that mitigating circumstances need not be proved beyond a reasonable doubt. The
United States Supreme Court has held a trial court need not so instruct. (Kansas v.
Carr (2016) 577 U.S. ___, ___ [136 S.Ct. 633, 642] [“our case law does not


                                          50
require capital sentencing courts „to affirmatively inform the jury that mitigating
circumstances need not be proved beyond a reasonable doubt‟ ”]; accord,
Samayoa, supra, 15 Cal.4th at p. 862.)
     Defendant further contends the trial court erroneously refused to instruct the
jury that it could consider as mitigating the “favorable treatment received by
someone you personally believe to be an accomplice.” “We have consistently
held that evidence of an accomplice‟s sentence or of the leniency granted an
accomplice is irrelevant at the penalty phase because „ “it does not shed any light
on the circumstances of the offense or the defendant‟s character, background,
history or mental condition.” ‟ ” (Maciel, supra, 57 Cal.4th at p. 549.)

               c. Circumstantial evidence
     Defendant contends the trial court erroneously failed to instruct the jury sua
sponte in the language of CALJIC No. 2.01, which generally addresses the
sufficiency of circumstantial evidence to prove a defendant‟s guilt of a crime, and
CALJIC No. 2.02, which addresses the sufficiency of circumstantial evidence to
prove a defendant‟s specific intent or mental state. There was no error. The
prosecution introduced only victim impact evidence at the penalty phase and,
hence, did not rely on circumstantial evidence. (Edwards, supra, 57 Cal.4th at
p. 766 [no CALJIC No. 2.01 instruction required when no unadjudicated crime
relied on circumstantial evidence].)

           5. Automatic motion to modify
     Defendant contends that the trial court erroneously relied on premeditation as
a circumstance of the crime in denying the automatic motion to modify because
there was insufficient evidence that Chuck Durbin‟s murder was premeditated.
We have concluded substantial evidence supported the jury‟s finding of
premeditation and therefore reject this claim. (See ante, pt. II.B.1.a.)


                                          51
           6. Challenges to the capital sentencing scheme
     Defendant contends that California‟s death penalty statute is constitutionally
invalid in numerous respects. We have repeatedly rejected similar claims and do
so again here as follows:
     “[T]he California death penalty statute is not impermissibly broad, whether
considered on its face or as interpreted by this court.” (People v. Dykes (2009) 46
Cal.4th 731, 813.) The death penalty statute does not lack safeguards to avoid
arbitrary and capricious sentencing, deprive defendant of the right to a jury trial, or
constitute cruel and unusual punishment on the ground that it does not require
either unanimity as to the truth of aggravating circumstances or findings beyond a
reasonable doubt that an aggravating circumstance (other than Penal Code
section 190.3, factor (b) or (c) evidence) has been proved, that the aggravating
factors outweighed the mitigating factors, or that death is the appropriate sentence.
(People v. Whalen (2013) 56 Cal.4th 1, 90; Dykes, at p. 814; Avila, supra, 46
Cal.4th at p. 724.) Nothing in Hurst v. Florida (2016) ___ U.S. ___ [136 S.Ct.
616],16 Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington


16     In Hurst v. Florida, the United States Supreme Court recently held that
Florida‟s sentencing scheme violates the Sixth Amendment in light of Ring v.
Arizona (2002) 536 U.S. 584. (Hurst v. Florida, supra, ___ U.S. at p. ___
[136 S.Ct. 616, 621].) The California sentencing scheme is materially different
from that in Florida. Here, a jury weighs the aggravating and mitigating
circumstances and reaches a unanimous penalty verdict that “impose[s] a sentence
of death” or life imprisonment without the possibility of parole. (Pen. Code,
§§ 190.3, 190.4.) Unlike Florida, this verdict is not merely “advisory.” (Hurst, at
p. 622.) If the jury reaches a verdict of death, our system provides for an
automatic motion to modify or reduce this verdict to that of life imprisonment
without the possibility of parole. (Pen. Code, § 190.4.) At the point the court
rules on this motion, the jury “has returned a verdict or finding imposing the death
penalty.” (Pen. Code, § 190.4, italics added.) The trial court simply determines
“whether the jury‟s findings and verdicts that the aggravating circumstances
                                                           (footnote continued on next page)

                                          52
(2004) 542 U.S. 296, Ring v. Arizona, supra, 536 U.S. 584, or Apprendi v. New
Jersey (2000) 530 U.S. 466, affects our conclusions in this regard. (Dement,
supra, 53 Cal.4th at p. 55.) “Written findings by the jury during the penalty phase
are not constitutionally required, and their absence does not deprive defendant of
meaningful appellate review.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1097.)
“Use of the adjectives „extreme‟ and „substantial‟ in [Penal Code] section 190.3,
factors (d) and (g) is constitutional.” (Dement, at p. 57.) A “prosecutor‟s
discretion to select those eligible cases in which the death penalty is sought does
not offend the federal or state Constitution.” (People v. Wallace (2008) 44 Cal.4th
1032, 1098.) “The federal constitutional guarantees of due process and equal
protection, and against cruel and unusual punishment [citations], do not require
intercase proportionality review on appeal.” (People v. Mai (2013) 57 Cal.4th
986, 1057.)
      Defendant contends that his death sentence violates international law. He
points to no authority that “prohibit[s] a sentence of death rendered in accordance
with state and federal constitutional and statutory requirements.” (People v.
Hillhouse (2002) 27 Cal.4th 469, 511.)




(footnote continued from previous page)

outweigh the mitigating circumstances are contrary to law or the evidence
presented.” (Pen. Code, § 190.4.)


                                          53
                          III. DISPOSITION
    We affirm the judgment.


                                             KRUGER, J.

WE CONCUR:

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




                                   54
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rangel
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S076785
Date Filed: March 28, 2016
__________________________________________________________________________________

Court: Superior
County: Madera
Judge: John W. DeGroot
__________________________________________________________________________________

Counsel:

Charles M. Bonneau, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Kathleen A.
McKenna, Brian Alvarez and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Charles M. Bonneau
331 J Street, Suite 200
Sacramento, CA 95814
(916) 444-8828

Michael Dolida
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-8538
