Filed 4/17/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S170957
           v.                        )
                                     )
RUBEN BECERRADA,                     )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. LA033909
____________________________________)


        A jury convicted defendant, Ruben Becerrada, of the first degree murder of
Maria Arevalo with the special circumstances of killing a witness, murder in the
commission of kidnapping, and lying in wait. As to the murder, it found true a
weapon enhancement allegation. It also found defendant guilty of rape, forcibly
dissuading a witness, and kidnapping. After a penalty trial, the jury returned a
verdict of death. The court denied the automatic motion to modify the verdict and
imposed a judgment of death. This appeal is automatic. We reverse the lying-in-
wait special-circumstance finding for insufficient evidence, but otherwise affirm
the judgment.
                                  I. THE FACTS

        A. Guilt Phase

                1. Overview
        The prosecution‟s theory of the case was that in August 1999, defendant
raped the victim, Maria Arevalo, with whom he had been living. When she


                                         1
pressed charges, he tried to dissuade her from testifying. In March 2000, after she
refused to drop the rape charge, she drove to his neighborhood and parked near his
home, apparently intending to visit him. Defendant attacked her shortly thereafter.
In front of witnesses, he beat her, kicked her, and hit her on the head with a beer
bottle. He then forced her into her own car and drove her to another location.
There, he strangled her both manually and with a ligature and stabbed her multiple
times, killing her. Finally, he put her body in the trunk of her car, which he
abandoned at another location.
       In its opening statement and closing argument, the defense admitted
defendant killed the victim, but it denied that the killing was premeditated and
denied he committed the other charged crimes of rape, dissuading a witness, and
kidnapping. The defense also denied the truth of the special circumstance
allegations of killing a witness, murder in the commission of kidnapping, and
lying in wait.

           2. The Evidence
       Maria Arevalo married Juan Arevalo in 1996, when she was 19 years old.
They separated about one and a half years later but remained friends. She worked
at a Sav-On drug store in Arleta and later at a Manpower employment agency in
Sherman Oaks. After she and Juan separated, she began a troubled relationship
with defendant, who was about 34 years old.
       During the months leading to August 1999, Juan and others often observed
bruises on Maria‟s arms, legs, and neck. She told Juan that defendant abused her.
Juan urged her to end the relationship, but she was afraid to do so. Juan decided to
speak with defendant. In a conversation Juan described as “civil,” conducted at
defendant‟s home on Dorrington Avenue in Arleta in the San Fernando Valley,




                                          2
defendant denied causing any bruising and said Maria was lying. Defendant also
told Juan he was a gang member and showed him his gang tattoos.
       Later, Maria told Juan that she had moved in with defendant. She
continued to tell him that defendant abused her. She also said defendant had
threatened her. She told him “she was afraid about her, her family, and” Juan
himself. She did not leave defendant because she was “afraid for her family.” She
also expressed the hope that defendant might change.
       Around 6:00 or 6:30 a.m., on August 8, 1999, Maria called Juan on the
telephone. She sounded scared and was “almost crying.” He met with her soon
after that. Juan observed bruises on her neck, legs, and wrist. She looked scared
and was shaking and crying. She told Juan that defendant had raped her. She said
what brought it on was that “she wanted to leave.” She said defendant choked her
to the point that she was “fading out,” meaning “losing consciousness.” At that
point, “she just stopped fighting.” Defendant tied her up on the bed and forced her
to have sex against her will. She later managed to get away. Before she left,
defendant told her not to tell anyone what had happened. He said he knew where
her family lived and threatened to kill her parents.
       Gerilind Taylor, Maria‟s supervisor at Manpower, testified that on one
occasion in August 1999, she was so concerned about Maria‟s bruises that she
reported them to her corporate office. She saw dark bruising and fingerprints on
Maria‟s neck. When she asked Maria about it, “[a]t first she was very
apprehensive, and then she just broke down.” “She said she was scared, and she
started crying.” Maria told her that because she had refused to do a “threesome”
with defendant and another girl, defendant raped her and tied her up for several
hours. She got the bruising on her neck when defendant pulled her up by the neck.
Maria said that defendant told her, “ „I could easily kill you.‟ ” She was afraid that
defendant might kill her sometime in the next seven or eight months.

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       Chris Eck, Maria‟s coworker at Manpower, testified that he met defendant,
introduced as Maria‟s boyfriend, one time at the office. In Maria‟s presence,
defendant began talking to him about his criminal past. Defendant told Eck “that
he had been incarcerated as a juvenile for homicide and later as an adult for a
double attempted homicide.” He said “he was a hit man for the Mexican Mafia,”
and that “he had killed people in the past, he‟d gotten away with it.” Later, on a
Monday in early August 1999, Maria failed to appear at work, which was unusual.
The next day, when Eck asked her about her nonappearance, she told him that
defendant “had taken her and tied her up and had repeatedly raped her. She
managed to escape, and she was beaten up.” She was afraid of defendant. Eck
observed “fingerprints around her neck, the bruising from it.” When Eck advised
her to report it to the police, she said she was afraid to do so “because Ruben
would come after her.”
       Juan also advised Maria to report the rape to the police and took her to the
local police department. She did not actually go inside the first time. She was
crying and said she was afraid of what defendant might do if she reported it, so
Juan took her back home. The next day, Juan called defendant on the telephone
and told him he would take Maria to the police station to report the rape.
Defendant told him “that I had a family and I should be careful.” He added that he
knew where Juan and his family lived and what kind of car he drove. Juan
considered it a threat. Defendant also called Maria a liar.
       On August 11, 1999, Juan and members of Maria‟s family took her back to
the police station. This time, she reported the rape. The police photographed her
bruises and gave her a restraining order against defendant. On August 16, 1999,
the Los Angeles County District Attorney‟s Office filed charges against defendant
of rape and dissuading a witness. A warrant for his arrest was issued, but he was



                                          4
never arrested on the warrant. As the alleged victim, Maria was to be the main
witness against defendant.
       The morning after Maria reported the rape, when Juan left to take Maria to
her job at Manpower, defendant was standing at the front door. Maria started
screaming to defendant to “get out of there” and showed him the restraining order.
Juan said he was going to call the police and grabbed his telephone, at which point
defendant left. Within a day or so of this event, two men, apparent gang members,
came to the back gate of the house. They told Juan to drop the charges.
Concerned about these threats, Juan and Maria moved to another home. Maria
also quit her job and began working at Washington Mutual Bank in Northridge.
She moved to her mother‟s house in October 1999. During this time, Maria told
Juan about other threats defendant had made to her. She said defendant “knew
how to find out things” and showed that he knew where she was living. He told
her “he had shot somebody before and got away with it.” He also told her that if
he were taken into custody, “he wouldn‟t go alone,” which she understood as a
threat to her family and Juan. She did not want to tell the police where defendant
was living because she was afraid for her family.
       Gerilind Taylor testified that after Maria reported the rape, she told her that
defendant had threatened her. He also told her that he would give a “sex video” to
her parents. She said that she was afraid because defendant was so angry, but she
also loved him and thought she could change him.
       Chris Eck testified that Maria continued to work at Manpower for a couple
of weeks after she reported the rape. During this time, Maria said defendant told
her “something along the line if I‟m going down for this, then I‟m going to take
you with [sic]. This was a third strike.” Partly because of his criminal past, Maria
was afraid that defendant would kill her. Defendant had also threatened to send a
sex video to her family if she did not withdraw the rape charge. She was also

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afraid that defendant would retaliate against Juan. Sometimes, however, she
would make excuses for the bruises and said she wanted to help defendant.
       A coworker at Washington Mutual Bank, where Maria began to work after
reporting the rape, testified that Maria was “always scared” of her previous
boyfriend. The coworker observed bruises on Maria “all the time.” Another
coworker at the bank testified that in December and January, 1999-2000, she
observed bruising on Maria that Maria said defendant had caused. Maria said that
defendant had raped her and she had reported it. She said defendant had told her
to drop the case “or he would kill her.” He had also threatened her family. Maria
did not tell the police where defendant lived because she was afraid of him. At
one point, Maria told the coworker that defendant had sent a sex video to her
family to intimidate her and try to get her to drop the charges.
       A friend of Maria‟s who often worked out with her at a local gym testified
that Maria told her defendant had raped her and later threatened to kill her and to
hurt her family if she did not withdraw the rape charge.
       Maria Eugenia Herrera, Maria‟s sister, accompanied Maria when she
reported the rape to the police. Maria told her about the rape and defendant‟s
threats, and she observed Maria‟s bruises. Maria told her that defendant put his
hands on her neck and lifted her until she fainted. She also said defendant told her
“that he knew how the system worked, and that he could make believe that he was
crazy and that way get away with it.” Sometime after Maria reported the rape,
Herrera received a video in the mail sent to her address. The video was given to
the police. It had a return address of “Guess Who” and showed defendant and
Maria having sex.
       Isabel Mejia, Maria‟s mother, and Laura Patricia “Patti” Arreguin, her
cousin, testified that in March 2000, Maria was living with her family in Arleta.
Maria and Patti shared a bedroom. Maria told Patti that defendant had raped and

                                          6
choked her. Maria was working at Washington Mutual Bank at the time. On the
days she worked, she would leave home at 4:40 a.m. On those days, the telephone
regularly rang before Maria left. Maria told Patti the caller was defendant. Isabel
told Maria to tell defendant not to call anymore, but the calling continued. Maria
told Patti that the detective investigating the rape case often asked her where
defendant was living. Although she knew, she did not tell the detective because
she feared defendant. In fact, after her meetings with the detective, she would call
defendant to assure him that she had not told the detective where he lived. She
would say this to defendant “to try to keep him at bay or pacified.”
       Naomi Hernandez, who knew defendant well, testified that at some point,
defendant told her that Maria had filed a rape charge. He asked her, “ „How can
she claim rape when we‟re living together?‟ ” He said he expected to be arrested
on the rape charge and threatened to kill Maria if he was. He said, “ „I‟m going to
kill‟ or „get that bitch, because I‟m not going back to jail.‟ ” “He kept on referring
to a rape.” He also told her that Maria had promised to drop the charge, and he
believed she would meet with the district attorney to do so.
       On March 3, 2000, Maria met with the deputy district attorney assigned to
her rape case. During the meeting, Maria‟s telephone or beeper went off. Maria
looked at it, made a comment, and became afraid. After the meeting, the case
remained open and was awaiting defendant‟s arrest.
       The next day, March 4, Maria was scheduled to work at the bank beginning
at 4:55 a.m. She never arrived. Her sister testified that the telephone at their
home rang as usual that morning around 4:00 a.m. Then she heard Maria leave the
house as usual. Witnesses and business records established that around 4:45 a.m.
that morning, Maria entered the Sav-On drug store in Arleta, where she used to
work, and purchased a pack of Marlboro cigarettes, the brand that defendant



                                          7
smoked regularly. Maria did not smoke. The two store employees who saw her
testified that she seemed to be in a hurry and was in the store only a short time.
       Vanessa F., 11 years old at the time of these events, was among those living
with defendant at the Dorrington Avenue residence in Arleta. Early in the
morning of March 4, 2000, while she was still in bed, she heard knocking on her
bedroom window. It was defendant. She went to the kitchen to open the back
door. She saw defendant alone outside wearing a gray beanie. She did not know
what time it was, but it was light outside.
       The Gonzalez family, including teenage sisters M. and L. and their mother,
lived just down Dorrington Avenue from defendant. Around 4:45, on March 4,
2000, the sounds of a woman screaming woke them up. The screaming
commenced by an alley in the back, then moved along the side of their house to
the front. The three women went out the front door and observed a man hitting
and kicking a woman, who was in the backseat of a car parked in front. The
woman was screaming for help. Somehow the woman got out of the car and
looked at the Gonzalez family. Defendant continued to beat and kick her,
appearing not to notice the family. He also hit her on the back or head repeatedly
with a bottle like a Corona beer bottle. The family called for the woman to come
to them, but she seemed to freeze. Suddenly, the woman stopped resisting. The
man grabbed her, put her in the backseat of the car, and drove away.
       M. Gonzalez called 911, and the police arrived quickly, but not before the
man had sped away with the woman in the back.
       Later that morning, police, responding to a report of an abandoned vehicle,
found a bluish gray Nissan Altima in the parking lot of an apartment complex on
Van Nuys Boulevard, where defendant used to live. Juan had purchased the car
for Maria. Maria‟s body, with a ligature around the neck, was in the trunk. Her
clothing was saturated with blood. The car contained blood both outside and

                                          8
inside, especially in the rear passenger area. The outside blood was smeared, as if
it had been wiped with a cloth.
        A witness testified that sometime earlier that morning, she saw a man
wiping the car with a rag. The man wore a beanie like one later found in
defendant‟s bedroom.
        The autopsy revealed that Maria died of three separate injuries: “The main
injury is strangulation at the throat caused by a hard ligature, . . . like a shoe
string . . . tightly wrapped around the throat. The second injury is a stab wound
into the jugular vein on the left side of the neck and throat, most probably
wounding the vein beneath the ligature cord that was wrapped tightly around the
neck. And the third injury which is a potentially lethal injury is a blunt-force
traumatic injury to the left side back of the head which caused bleeding under the
scalp and also small amount of bleeding on top of her brain.” In addition to the
ligature, there was evidence of manual strangulation.
        The ligature was wrapped tightly three times around Maria‟s neck and tied
with a bow or slip knot. Maria‟s fingernails had been painted with a red acrylic
paint. Her right hand was missing three fingernails. Her neck contained abrasions
that were probably caused by the victim‟s fingernails trying to pull the ligature
away. A broken piece of a knife remained in her neck beneath the ligature.
According to the pathologist, it appeared that “the knife was stabbed into the neck
while the ligature was wrapped tightly around the neck and throat. It went
downward from top to bottom and beneath the ligature into the vein, through the
vein and hit the hard bone of the neck.” Her body contained other sharp-force
wounds, including defensive wounds on the hands. In the pathologist‟s opinion,
the victim was still alive at the time of the strangulation and the knife wound to the
neck.



                                            9
       The blunt-force head wound was consistent with being hit by a bottle and
could have caused unconsciousness or severe stunning. The pathologist testified
that the likely order of the main injuries were, first, the blunt injury to the head,
then the ligature, then the knife wound into the jugular vein. “[T]he most
immediately lethal wound is the strangulation.”
       Because of the absence of evidence of a struggle at the Van Nuys
Boulevard apartment complex where the car was abandoned, it appeared Maria
was not killed there but at an unknown location. Her body was then placed in the
trunk and driven to the Van Nuys location. The trunk contained very little blood.
       In the area where the Gonzalez family observed the assault, police found
fingernails painted with red acrylic paint that forensic testing established were
consistent in all respects with the fingernails that remained on Maria‟s body. In
the same area, police also found Corona beer bottles, one broken.
       Defendant was arrested the evening after Maria‟s body was found, but
initially only on the rape charge. He had fresh scratches and other injuries, some
of which could have been inflicted by Maria‟s fingernails. Even though no one
mentioned the murder to him, he told the police that he did not kill anyone. He
asked one police officer “why he was arrested for 187,” an apparent reference to
section 187 of California‟s Penal Code, which defines murder. He told the same
officer something like “he didn‟t want to be a part of his ex-girlfriend‟s craziness
and her having problems with her ex-husband, who he wouldn‟t be surprised if he
went off and killed her.” Witnesses testified that after his arrest, defendant faked
having seizures, for which he was taken to the hospital.
       At the time of his arrest, defendant was living with his mother and several
others, including Rosa Marquez, on Dorrington Avenue in Arleta. Police searched
his bedroom pursuant to a search warrant. They found a gray knit watch cap or
beanie, and a blood smeared pack of Marlboro cigarettes identical to those Maria

                                           10
had purchased the morning of her death. They also found an address book that
had belonged to Maria. It contained Maria‟s handwriting but also various
notations, some gang related, in a different handwriting. The different
handwriting included matters pertaining to Maria, such as her mother‟s name, and
her family‟s address and telephone number. Police also found an envelope
addressed to defendant‟s brother containing a photograph of Maria and defendant.
On the back was written, “This is the bitch, Ruben, JKS.” JKS stands for the
Jokers, a clique of the Venice 13 street gang. Defendant bore tattoos consistent
with his membership in the Jokers.
        Deoxyribonucleic acid (DNA) analysis revealed that the blood on the pack
of Marlboro cigarettes found in defendant‟s bedroom, the blood found on the
street on Dorrington, and the blood from Maria‟s car could not have come from
defendant but was consistent with Maria‟s blood. One analyst testified that the
profile of the samples she tested would occur in about one person in 330 billion
among unrelated individuals in the Hispanic population and even less often in
other population groups.
        The distance from Maria‟s home to the Sav-On drug store was a little over
two miles. The distance from there to the two Dorrington Avenue addresses was a
little under one mile. The distance from the Dorrington Avenue addresses to the
apartment complex on Van Nuys Boulevard where the car was abandoned was
about one mile.
        At the preliminary hearing in August 2004, an investigating officer escorted
Rosa Marquez to the courtroom where she was to testify. While doing so, he
observed defendant make a hand sign to Rosa that signified the Venice 13 street
gang.
        Sandra Baca testified as an expert on “intimate partner violence,” which
used to be called “battered women‟s syndrome,” to help explain Maria‟s behavior.

                                         11
       Defense counsel cross-examined prosecution witnesses, but defendant
presented no witnesses of his own.

       B. Penalty Phase

            1. Prosecution Evidence
       A friend of Maria‟s, her parents, her brother, a sister, a cousin, and two
uncles testified about Maria and the impact her death had on them and her family.
       The prosecution presented evidence of defendant‟s prior criminal behavior
involving force or violence.
       In August 1980, when defendant was 16 years old and a member of the
Venice 13 gang, he was involved in the gang-related murder of a rival gang
member. The victim was fatally shot in the head, apparently while riding a
bicycle. Defendant was not the actual shooter and apparently was not present at
the shooting. He was present at a meeting in which the shooting was planned, and
he provided a screwdriver to help another gang member steal a car to use in the
shooting.
       In the 1980‟s defendant physically abused his then girlfriend.
       In March 1984, defendant shot two persons, for which he was convicted of
one count of assault with a deadly weapon.
       Defendant also had two prior burglary convictions, one conviction of petty
theft with a prior theft-related conviction, and one conviction of possession of
cocaine.
       The prosecution also presented evidence of many instances of defendant‟s
criminal behavior in the county jail between 2001 and 2004, after his arrest in this
case, which involved force or violence or the threat of force or violence. On
numerous occasions, defendant possessed razor blades or shanks that could be
used as weapons; he assaulted fellow inmates and jail staff, sometimes inflicting



                                         12
serious injuries; and he possessed urine and feces, which he often used to “gas”
jail staff, that is, to spray them with the urine and feces. In addition to actual
incidents of gassing, defendant often threatened to gas or otherwise assault staff.

           2. Defense Evidence
       Defendant‟s mother, sister, stepfather, and uncle testified about his unhappy
and difficult childhood. His mother was Hispanic and his natural father “Afro-
Cuban.” Because of the interracial aspect, when they married, the mother‟s family
“didn‟t like it at all.” His father abused him and his mother. Eventually, the
marriage ended, and defendant‟s father left, leaving the family with no money.
After that, defendant‟s mother often beat him with a belt or shoe. Defendant‟s
uncle sometimes took care of him, even though he was a heroin addict and often
injected heroin in front of defendant. The uncle testified that partly because of
this, defendant became a heroin addict himself. When defendant was 13 or 14
years old, the uncle had him help in a robbery to get money to support the uncle‟s
heroin addiction.
       Defendant‟s mother remarried, but the stepfather also was involved in
criminal conduct. At one point, both defendant‟s uncle and his stepfather were in
the same prison, and defendant sometimes visited them there. The stepfather
introduced defendant to other inmates, including members of the Mexican Mafia.
Defendant was also affected by racial tension in his neighborhood. As a result of
these and other factors, he became involved in gang activity and criminal conduct
at a young age.
       Two Los Angeles County deputy sheriffs testified that during the
approximately two-year period before the trial, beginning around January 2007,
defendant had behaved well in jail and often volunteered for work assignments.




                                           13
       Dr. Roger Light, a neuropsychologist, testified about defendant‟s mental
condition. In his opinion, defendant “reflect[ed] deficits in several aspects of both
neuropsychological functioning and cognitive intellectual functioning.”

           3. Rebuttal and Surrebuttal
       Dr. Robert Brook, a clinical psychologist specializing in neuropsychology,
testified for the prosecution on rebuttal about defendant‟s mental condition. He
disagreed with some of Dr. Light‟s opinions. Dr. Light then testified on
surrebuttal, reiterating his opinion.
                                   II. DISCUSSION

       A. Guilt Issues

           1. Admission of Photographs of Defendant’s Tattoos
       Before the opening statements, defendant objected to the prosecution‟s
showing the jury pictures of his gang tattoos on the basis that they were more
prejudicial than probative. The photographs also showed the scratches on
defendant‟s body when he was arrested. Defense counsel argued “they‟re full
body depictions of the tattoos. That issue is not going to be at issue. We‟re going
to be agreeing that he has gang tattoos on his body.” She argued the “full
panorama of tattoos is [not] necessary to depict” the scratches.
       The court overruled the objection: “You can‟t, by saying there is no issue
on it, take away the strength of the prosecution‟s evidence, because they still have
to prove it, even if you‟re not going to contest it.” It found no prejudice. It
explained that the pictures “show scratches on his neck and his right shoulder, the
back of his right shoulder, but I would think given what I‟ve heard of the evidence
in this case, that the tattoos themselves are significant. They tend to be somewhat
overpowering to the extent that they do show the gang Venice Jokers on the back
and have some interesting perhaps frightening images, which may have to do with


                                          14
the fact that the victim in the case did not, Maria did not report the, or was
reluctant to report the violation and/or was more compliant with any demands that
were made. But anyway, there is no prejudice involved at all. The objection to
the tattoos is overruled. It‟s much better to show the tattoos than have him display
these during the trial anyway.”
       During the trial, the photographs were used to show the scratches on
defendant‟s body and as evidence of his membership in the Jokers clique of the
Venice 13 gang. The investigating officer testified that one tattoo was “the largest
one I‟ve ever seen with a [Venice 13] gang member.”
       At the end of the prosecution‟s case-in-chief, defendant renewed his
objection to the pictures of his tattoos. The court overruled the objection. It noted
that the photographs “obviously show the wounds that [defendant] did sustain at
some point, and the question is how they got there. But it was well stated that
you‟re talking about the intimidation and those tattoos, and to some extent the
caricatures are significant as well. I couldn‟t see all of them, but there‟s a tattoo of
a woman on his lower back, in the center lower back that is suggestive of his
attitude about women, which is consistent with our — this recent witness.” This
latter statement clearly refers to the final prosecution witness, the expert who
testified about intimate partner violence.
       Defendant contends the court erred in admitting the photographs. He
argues they were more prejudicial than probative under Evidence Code section
352. We disagree. The court acted within its discretion in concluding that the
evidence was more probative than prejudicial. (People v. Jones (2011) 51 Cal.4th
346, 373.) “[E]vidence of gang membership is potentially prejudicial and should
not be admitted if its probative value is minimal. [Citation.] But evidence of gang
membership is often relevant to, and admissible regarding, the charged offense.
Evidence of the defendant‟s gang affiliation — including evidence of the gang‟s

                                          15
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like — can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent to guilt of the
charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
       Defendant‟s gang membership permeated the entire case. It was defendant,
not the prosecution, who first interjected it into the case. He flaunted his gang
membership and criminal past as a major part of his campaign of intimidation and
his efforts to dissuade Maria from testifying against him. When Juan Arevalo
confronted defendant about Maria‟s bruises and her statements that defendant was
abusing her, defendant said she was lying. He also told Juan he was a gang
member and showed him the gang tattoos depicted in the photographs. During
this same time period, defendant also told Maria‟s coworker, Chris Eck, about his
criminal past and gang connections. Additionally, the jury could reasonably infer
from the evidence that shortly after Maria reported the rape, defendant sent two of
his fellow gang members to try to intimidate Juan and, through him, Maria. The
address book found in his bedroom contained gang notations. On the picture of
Maria in the envelope addressed to defendant‟s brother was written, “This is the
bitch, Ruben, JKS.”
       As the trial court noted in overruling the objection, the fact defendant said
he would agree there were gang tattoos on his body did not make the evidence
irrelevant or unduly prejudicial. Defendant pleaded not guilty, which forced the
prosecution to prove its case. It was entitled to do so. (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 407.) Additionally, given the evidence and
defendant‟s statement that he agreed he had the tattoos, it was inevitable the jury
would learn of his gang membership. Under the circumstances, the court had
good reason to find the photographs would be probative and not unduly
prejudicial. It acted within its discretion in admitting them.

                                          16
       One of the tattoos, which defendant describes as depicting “a woman in a
sexually submissive pose,” was not itself clearly gang related. The trial court
specifically referred to it and overruled defendant‟s objection under Evidence
Code section 352. We see no abuse of discretion in this ruling either.

           2. Admission of Evidence that Defendant Made a Gang Hand Sign
       The investigating officer testified that when he brought Rosa Marquez into
the courtroom to testify, he observed defendant make a hand sign to her that
signified the Venice 13 street gang. Defendant objected to the testimony “as more
prejudicial than probative.” The court sustained the objection “on foundation.”
After the prosecutor asked further questions to lay a foundation, defendant again
objected and asked for a ruling on the testimony‟s relevance and probative value.
The court stated that lack of foundation was the only ground on which it had
sustained the objection, and it otherwise overruled the objection. When defendant
asked the court to note his continuing objection to the “prejudicial information,”
the court responded, “You asked for the foundation, you‟re getting the foundation.
If you don‟t like it, don‟t ask for it. Overruled.” The witness then testified about
the hand sign and why he, an expert regarding gangs, believed it signified the
Venice 13 street gang.
       During a break in the testimony, and outside the jury‟s presence, the court
acknowledged it had not understood that defendant‟s objection was based on the
ground that the evidence was more prejudicial than probative. It again overruled
that objection. It continued to find no prejudice from the evidence: “You still
haven‟t identified any prejudice. I don‟t see any prejudice in it. Normally the
prejudice of gang membership is great in the abstract. . . . We don‟t bring it in
when it‟s unnecessary, but in this case it‟s going to be — it‟s contained
throughout, not only on the outsized letters on the defendant‟s back, but when he,



                                         17
for instance, wrote his brother and has — and signs it with his name and then JKS,
he‟s still indicating gang activity, and it comes in in front of the jury, that‟s very
significant as to his attitude about the victim in the case. I see no prejudice at all.”
       We see no abuse of discretion for essentially the same reasons the court did
not abuse its discretion in admitting the photographs showing defendant‟s tattoos.
Defendant‟s gang affiliation permeated the case. The prosecution did not present
extensive evidence regarding the Venice 13 gang‟s criminal activities. But the
limited evidence the court permitted was permissible.

            3. Admission of Gang Notations in an Address Book
       An address book that the evidence showed had belonged to the victim was
found in defendant‟s bedroom after he killed her. It contained the victim‟s writing
but also writing in what appeared to be a different hand, which contained gang
notations and information concerning the victim. When the investigating officer
began to testify about the notations, defendant objected on hearsay grounds. The
court overruled the objection. After the officer further testified about gang
nicknames, or monikers, contained in the book, defendant also objected under
Evidence Code section 352 that the testimony was more prejudicial than probative.
The court overruled the objection but added, “I‟m not sure where we‟re going with
this. I‟m concerned about relevance.” The prosecutor commented, “I was just
pointing out various things, given some of the evidence in this case.” From that
point on, the prosecutor asked no further questions regarding gang notations or
monikers.
       Defendant contends the court erred on two grounds. First, he argues the
testimony was inadmissible hearsay. The Attorney General argues the testimony
was offered for a nonhearsay purpose. Defendant disagrees. We need not decide
the point, for the court had discretion to overrule the hearsay objection even if the



                                           18
testimony was offered for the truth of the matter asserted. The obvious exception
to the hearsay rule that applies here is the one for statements of a party. (Evid.
Code, § 1220.) The testimony regarding the address book was based on the belief
that defendant wrote the notations. If so, no hearsay problem exists, for defendant
was a party, and the testimony was offered against him. (People v. Horning
(2004) 34 Cal.4th 871, 898.) Defendant argues the prosecution presented no
foundational evidence, such as handwriting comparison testimony, establishing
that he did, indeed, make the notations. However, under the circumstances, the
court and, ultimately, the jury could readily find that defendant did write the
notations. The victim and defendant had been living together, the address book
was found in defendant‟s bedroom, the notations were consistent with other things
defendant had said and written (such as the letter to his brother, also found in the
bedroom), and the notations contained information about the victim. Indeed, it is
hard to imagine who, other than defendant, might have made the notations. The
trial court acted within its discretion in overruling the hearsay objection.
       Defendant also argues the testimony about the gang notations was more
prejudicial than probative. But, again, the court had discretion to conclude
otherwise and to permit the bit of testimony that had already occurred while
expressing concern about possible further testimony. This testimony also showed
that defendant‟s gang membership was important to him, that he flaunted it, and
that it played a significant role in his campaign of intimidation.

           4. Admission of a Statement by Defendant
       Chris Eck, the victim‟s coworker at Manpower, testified that one time,
before the rape, he met defendant at the office. In Maria‟s presence, defendant
said “that he had been incarcerated as a juvenile for homicide and later as an adult




                                          19
for a double attempted homicide,” that “he was a hit man for the Mexican Mafia,”
and that “he had killed people in the past, he‟d gotten away with it.”
       After the opening statements to the jury, but before the guilt phase
testimony, defendant objected to this testimony on relevance grounds. The court
found the testimony “clearly relevant to the issue that you [defense counsel] had
addressed in your opening statement as to whether there was a rape or not, if it
was a figment of her imagination or just false statement, but the answer to that is if
there was a real rape and she‟s terrified of a possible Mexican Mafia hit man, she‟s
going to keep her mouth shut and figure, well, it was bad enough, I‟m not going to
make it worse. It‟s clearly relevant. The only issue would be whether it‟s so
prejudicial, whether there is some — one of the problems would be that it‟s being
a braggart, he‟s making up stories to terrify people, but it still has the effect of
terrifying the victim, so whether it‟s true or not, it‟s admissible.”
       The prosecutor indicated that there was some factual support for the
statement, which would be presented at the penalty phase. The court invited
defendant to renew the objection “if you get something new that you want to . . .
be heard about on that issue,” but otherwise, “based on what‟s been offered here,”
it found the evidence relevant. Defense counsel agreed that there was factual
support for “some” of the statement, but added that he was not aware of any
evidence that would support “the idea that he was a Mexican Mafia hit man,” and
that that part of the statement was “braggadocio.” The court responded, “That
could be. And, in fact, that‟s a fair part of an argument, but it still has the effect of
even more so of terrifying the victim in the case.” The court offered to give a
special limiting instruction if defendant wanted one. Defendant did not request a
limiting instruction, and the court did not give one.
       Defendant contends the court erred in admitting the testimony. However,
the court had discretion to admit the evidence for the reasons it stated. Whether or

                                           20
not the statements were true, that defendant made them in the victim‟s hearing was
another relevant piece of evidence showing that he was intimidating and, as the
court put it, “terrifying” her. This was relevant both to help explain the victim‟s
apparent reluctance to report the rape and to whether the rape actually occurred.
As defendant notes, Eck testified on cross-examination that, because he considered
the conversation to be “casual,” he, Eck, did not think defendant was trying to
intimidate him. But this cross-examination did not establish that the court abused
its discretion in its earlier ruling, which was based on the offer of proof.
Defendant did not renew his objection. In any event, it was not the impact of the
statement on the witness that mattered, but the impact on the victim. The victim
was not able to testify herself as to the statement‟s impact, but the court could
reasonably admit the evidence and permit the jury to judge its significance for
itself in light of all of the evidence.
       Citing People v. Albarran (2007) 149 Cal.App.4th 214, where the Court of
Appeal found reversible error in admitting substantial gang evidence, defendant
argues the court should have excluded the evidence as too prejudicial under
Evidence Code section 352. The Albarran court found that, although some of the
gang evidence admitted in that case was relevant, the trial court also permitted
much evidence that “was irrelevant, cumulative and presented a substantial risk of
undue prejudice.” (Albarran, at p. 228.) Here, by contrast, relatively little gang
evidence was presented, and the trial court scrutinized all of it. We see no abuse
of discretion.

            5. Admission of a Statement by the Victim
       Maria‟s sister testified that when she accompanied Maria to the police
station to report the rape, Maria said that defendant had told her “that he knew
how the system worked, and that he could make believe that he was crazy and that



                                          21
way get away with it.” At that point, defendant asked that the statement “be
limited to state of mind.” The prosecutor argued that the statement was admissible
as a spontaneous statement under Evidence Code section 1240. The court
questioned whether it should be limited to state of mind. Defendant agreed the
statement could be viewed as a threat and, as such, was admissible to show
Maria‟s state of mind. But he argued that “with respect to anything else, I believe
it‟s simply double hearsay and unreliable.” Ultimately, the court agreed with the
prosecutor that the statement was a spontaneous statement and overruled the
objection.
       Defendant contends the court erred in not limiting the statement to Maria‟s
state of mind. He argues the statement does not come within the exception to the
hearsay rule for spontaneous statements. Evidence Code section 1240 makes a
statement that describes something the declarant perceived an exception to the
hearsay rule if that statement “[w]as made spontaneously while the declarant was
under the stress of excitement caused by such perception.” To qualify for this
exception, (1) there must have been a startling occurrence that produced nervous
excitement, thus making the statement spontaneous and unreflecting; (2) the
statement must have been made before there was time to contrive and
misrepresent; and (3) the statement must relate to the occurrence preceding it.
(People v. Merriman (2014) 60 Cal.4th 1, 64.)
       We need not decide whether the court properly admitted the statement as a
spontaneous statement, for any error was harmless. As defendant recognized at
trial, the statement was at least admissible for the limited purpose of showing the
victim‟s state of mind. Evidence Code section 1250, subdivision (a) permits
“evidence of a statement of the declarant‟s then existing state of mind [or]
emotion,” when “(1) The evidence is offered to prove the declarant‟s state of
mind [or] emotion . . . when it is itself an issue in the action; or [¶] (2) The

                                           22
evidence is offered to prove or explain acts or conduct of the declarant.” The
statement was admissible to show Maria‟s state of mind, that is, that she perceived
defendant‟s statement as a threat and was therefore afraid of him. Maria‟s fear of
defendant, and her conduct in light of that fear, was at issue in the action.
       Any error in allowing the jury to consider the statement for its truth — to
show that defendant actually said he knew how the system worked and could “get
away with it” by pretending to be crazy — was harmless. The evidence was
presented very briefly and never exploited. The prosecutor did not mention the
statement in her arguments to the jury. Defendant contends the evidence was
especially prejudicial at the penalty phase. We disagree. This point, never
exploited, was minor in light of the case as a whole. We see no reasonable
possibility any error contributed to the penalty verdict. (People v. Gonzalez
(2006) 38 Cal.4th 932, 960-961.)

           6. Claims of Instructional Error
       Defendant reiterates two instructional claims we have repeatedly rejected.
We see no reason to reconsider our previous rulings. The court did not err in
instructing the jury on first degree murder even though the information simply
charged murder under Penal Code section 187 without specifying the degree.
(People v. Jones (2013) 57 Cal.4th 899, 967-969.) A series of standard
instructions the court gave — CALJIC Nos. 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51,
8.20, 8.83 — did not undermine the reasonable doubt standard. (People v. Whalen
(2013) 56 Cal.4th 1, 70-71; People v. Dement (2011) 53 Cal.4th 1, 53-55.)

           7. Validity of the Lying-in-wait Special-circumstance Finding
       Defendant contends the evidence is insufficient to support the lying-in-wait
special-circumstance finding. We agree.




                                          23
        To determine whether the evidence supports a special-circumstance finding,
we must review “ „the entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable, credible, and of solid
value such that a reasonable jury could find‟ ” the special circumstance allegation
true “ „beyond a reasonable doubt.‟ ” (People v. Johnson (2015) 60 Cal.4th 966,
988.)
        “At the time of defendant‟s crime, the special circumstance required that
the murder be committed „while lying in wait.‟ ([Pen. Code] § 190.2, former
subd. (a)(15) . . . .)” (People v. Streeter (2012) 54 Cal.4th 205, 246, fn. omitted.)
This “special circumstance required an intentional killing, committed under
circumstances that included a physical concealment or concealment of purpose; a
substantial period of watching and waiting for an opportune time to act; and,
immediately thereafter, a surprise attack on an unsuspecting victim from a position
of advantage.” (People v. Stevens (2007) 41 Cal.4th 182, 201.)
        The prosecution‟s theory to support the lying-in-wait special circumstance
was that when defendant learned that Maria had not dropped the rape charge when
she met with the prosecutor on March 3, 2000, he lured her, unsuspecting, to his
home the next morning, intending to kill her; then, after watching and waiting for
the opportune time to act, he attacked her from a position of advantage and
intentionally killed her. If substantial evidence had supported this theory, it would
have been sufficient to establish the special circumstance.
        The evidence showed that defendant expected Maria to drop the charges
and supported a finding that he intended to kill her if she did not do so. It also
showed that he called Maria early the morning of March 4, 2000, as he often did,
and that, rather than go straight to work, she drove to defendant‟s neighborhood
and parked near his home, stopping at a store on the way to buy a pack of
defendant‟s favorite cigarettes. At some point after she arrived, defendant began

                                          24
to attack her, an attack that culminated in his hitting, stabbing, and strangling her.
This evidence supports a finding that defendant intended to kill her if and when he
learned that she had not dropped the charges, and that he did kill her when he
learned that the charges were still pending.
       Missing, however, is any evidence that defendant learned before her fatal
trip to his home that Maria had not dropped the charges. It appears that Maria was
hoping to appease defendant by bringing him a pack of his favorite cigarettes. But
no evidence exists whether she did so because she had already told him she was
not dropping the charges, or because she intended to tell him when she met him.
There was no evidence regarding the content of the telephone conversation
between Maria and defendant early that fatal morning or any other evidence
supporting a finding that defendant knew she had not dropped the charges before
she arrived at his home.
       The evidence strongly supports a jury finding that defendant killed Maria
premeditatedly when he learned that she had not dropped the charges, but it does
not support a finding that he had lured her to his home intending to kill her. Thus,
there is no evidence of a substantial period of watching and waiting for an
opportune time to act. Accordingly, we conclude the evidence does not support
the lying-in-wait special-circumstance finding; therefore, we reverse that finding.

       B. Penalty Issues

           1. Claims of Evidentiary Error
       Defendant contends that two sheriff‟s deputies who testified about his
misconduct in jail gave impermissible hearsay and opinion testimony.

                a. Factual Background
       Deputy David Florence testified that he had been a deputy sheriff for 21
years, much of that time working in the county jail. During this time, he got to


                                          25
know defendant very well. He testified about one occasion when five razor blades
altered for use as weapons were found in a latex glove secreted in defendant‟s
buttocks.
        When asked whether defendant often acted aggressively towards the jail
deputies, Deputy Florence responded, “That was commonplace behavior for Mr.
Becerrada. It was his way of getting attention or trying to manipulate the situation
wherever it was, whether it was, . . . it didn‟t really matter where it was as long as
he was getting the attention and got what he wanted.” Defendant objected to the
testimony as “an opinion and conclusion,” and asked that it be struck from the
record. The court sustained the objection. The prosecutor asked, “Did you also
observe situations where the defendant would act aggressively or violent[ly]
towards deputies in order to get whatever it was that he wanted?” The court again
sustained defendant‟s objection that the question asked for an opinion and
conclusion. The prosecutor then asked whether defendant “would ask for things,
and when refused, he would act in an aggressive or violent manner?” Deputy
Florence responded that yes, such behavior was common for defendant. He also
testified that in general “some inmates will attempt to manipulate the system by
causing problems within the jail facility to get what they want.”
        Deputy Florence testified that during his career working in the jail, he had
been in contact with “thousands” of inmates. The prosecutor asked “in terms of
the defendant and your experiences with him,” how he compared with other
inmates in terms of difficulty or violence. Defendant objected on the ground the
question called for a conclusion or opinion. The court overruled the objection, and
the witness responded, “I‟d say out of my time dealing with individuals who are
either arrested and incarcerated, he probably rates in the top five of people that are
able to manipulate any given situation however he wants the outcome to come for
him.”

                                          26
       The prosecutor also asked Deputy Florence, “Would it be a common
occurrence within what you personally observed of the defendant that he would
challenge deputies within the facility to fight?” He responded, “Yes.” The
prosecutor asked, “In other words, if the defendant said to a deputy, take this
waist chain off and let‟s go one on one, was that something that was a common
occurrence with the defendant in this case.” Defendant objected on the basis of
hearsay, which the court overruled. The prosecutor added, “That you‟re aware
of.” The witness responded, “Yes. Mr. Becerrada oftentimes would do different
things to get the attention of others and take the attention off of him, and
oftentimes it had to do when he was either being moved to and fro, whether it was
coming back to court or work pass or whatever.” Defendant objected regarding
his “intention, that‟s an opinion.” He asked that it be struck from the record. The
court sustained the objection.
       The prosecutor questioned Deputy Florence about the importance in a jail
setting of paying attention “not only to what an inmate might say to you, but also
to, like you said, what their conduct is, what their behavior indicates.” He said,
“Sure,” and added, “It‟s especially important in working in a high power area. All
of the individuals that are there fall in that category, extremely dangerous.” After
the court sustained defendant‟s objection to another question, the prosecutor
asked, “Did the defendant, based on your observations, present a danger to the
deputies working within the [jail] module?” Defendant objected on the basis that
the question called for an opinion or conclusion. The court overruled the
objection, and the witness responded, “Yes.” He also testified that defendant also
presented a danger to other inmates and custodial staff.
       The prosecutor asked Deputy Florence, “Did the defendant ever act in a
manner, in your opinion, from what you observed, where he was seen to be afraid
of any other inmates?” Defendant objected that it called for a conclusion, which

                                          27
the court overruled. The witness responded, “No. I believe that his actions
oftentimes was to show the other inmates that he wasn‟t afraid.” The prosecutor
asked, “And how would an inmate tend to show other inmates that you‟re not
afraid, either of the deputies or of other inmates?” The witness responded, “By
their intentional disregard for the rules, disobeying instructions, orders, provoking
fights with other inmates, fights with deputies, assaulting deputies, slashing
deputies. Whatever it takes to get the attention that they‟re to be accepted.” The
prosecutor followed up with this question: “And would those behaviors, the type
of conduct that you just described, would that be the type of behavior that would
gain the inmate respect from other inmates by being aggressive or violent or
disobedient with deputies?” Defendant objected on the basis the question “calls
for speculation.” The court overruled the objection, and the witness responded,
“Yes.”
         Deputy Mike Davis had worked at the central county jail for about six
years. He testified about numerous incidents of defendant‟s possession of hidden
weapons, such as razors, and of gassing jail staff. On cross-examination,
defendant elicited Deputy Davis‟s testimony, based on his experience, that
sometimes jail inmates would try to be transferred away from the section of the
jail where defendant was housed because they were afraid of other inmates. On
redirect examination, the prosecutor asked, “Did the defendant ever seem to you to
be an inmate who was afraid for his safety?” Defendant objected on the basis that
the question called for a conclusion or opinion. The court overruled the objection,
and the witness responded, “I don‟t think he was afraid for his safety. I think there
were some people maybe he wasn‟t getting along with, and I think he was more
than a willing participant to do to them what they did to him, and I think that‟s
why he was bringing the razors in for that reason, too.”



                                         28
                b. Analysis
       Defendant contends Deputy Florence‟s testimony that defendant was
among the “top five” inmates in manipulating a situation was impermissible
opinion testimony. We disagree.
       It is not clear from the record whether the evidence was offered and
admitted as expert opinion — based on the witness‟s expertise as a correctional
officer — or as lay opinion. We will assume the evidence was offered as lay
opinion. As such, it was admissible. “A lay witness may testify to an opinion if it
is rationally based on the witness‟s perception and if it is helpful to a clear
understanding of his testimony. (Evid. Code, § 800.)” (People v. Farnam (2002)
28 Cal.4th 107, 153; accord, People v. Seumanu (2015) 61 Cal.4th 1293, 1310-
1311.) Here, the witness knew defendant well and had had contact with
“thousands” of inmates. “On this record, we cannot say that [the witness‟s]
testimony lacked a rational basis, or that it failed to clarify his testimony.”
(Farnam, at p. 153.) The testimony certainly came “within the experience of a
correctional” officer like Deputy Florence, with several “years of security
experience” in a jail setting. (Ibid.)
       Defendant argues that the opinion “did not relate to any particular incident
offered in aggravation and therefore was not necessary for his testimony”; and that
“it did not assist the jurors in reaching their ultimate decision under the statutory
framework and therefore was an improper opinion.” However, “ „[v]iolent
“criminal activity” presented in aggravation may be shown in context, so that the
jury has full opportunity, in deciding the appropriate penalty, to determine its
seriousness.‟ ” (People v. Welch (1999) 20 Cal.4th 701, 759, quoting People v.
Melton (1988) 44 Cal.3d 713, 757.) Deputy Florence‟s opinion helped the jury to
determine how serious defendant‟s criminal behavior in jail was. (Welch, at p.
759.) It “merely placed in context other admissible incidents in aggravation at the


                                          29
penalty phase. The evidence tended to show the gravity of [the defendant‟s]
violent and threatening criminal conduct behind bars . . . .” (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1054.) Accordingly, the “court acted well within its
discretion in permitting the lay opinion testimony.” (People v. Farnam, supra, 28
Cal.4th at pp. 153-154.)
       Next, defendant contends Deputy Florence‟s testimony that it was common
for defendant to say to a deputy, “take this waist chain off and let‟s go one on
one,” was inadmissible hearsay. In context, however, the testimony was clearly
based on what the witness had personally observed rather than on what he had
heard from others. The immediately preceding question was whether it was
common “within what you personally observed of the defendant that he would
challenge deputies within the facility to fight.” (Italics added.) In his reply brief,
defendant argues the testimony was too general to be admissible hearsay even it if
was based on the deputy‟s personal observations. Because he did not object on
that basis at trial, he cannot make the argument on appeal. (People v. Kennedy
(2005) 36 Cal.4th 595, 612.) Moreover, defendant cites, and we are aware of, no
authority making that a valid basis on which to exclude the testimony. The court
acted within its discretion in admitting the testimony. (People v. Jones, supra, 57
Cal.4th at p. 956.)
       Next, defendant contends that Deputy Florence‟s testimony that defendant
presented a danger in jail was also inadmissible opinion testimony. However, for
reasons similar to the reasons we rejected defendant‟s earlier argument regarding
opinion testimony, we find the trial court acted within its discretion in permitting
this testimony. It was based on Deputy Florence‟s own perceptions and helped
illuminate the incidents that he testified to. By providing context for the evidence
of defendant‟s specific criminal behavior in jail, it helped the jury understand the
testimony.

                                          30
       Next, defendant contends Deputy Florence “improperly speculated that
[defendant] committed misconduct in order to gain respect from other inmates.”
However, this testimony was not mere speculation; it was also based on the
witness‟s perceptions, drawn from his extensive experience with jail inmates in
general, and with defendant in particular. Again, we see no abuse of discretion.
       Finally, defendant contends Deputy Davis‟s testimony that he did not
believe defendant was afraid for his own safety was also inadmissible opinion
testimony. The prosecutor elicited the opinion on redirect examination after
defendant had elicited the opinion from the same witness that some inmates tried
to transfer into another jail unit out of fear. It was, accordingly, a relevant
response to the cross-examination. Moreover, the testimony was also based on the
witness‟s perceptions drawn from years of experience, including much with
defendant personally. Again, we see no abuse of discretion.

           2. Claim of Instructional Error
       Penal Code section 190.3, factor (b), directs the jury to consider “[t]he
presence or absence of criminal activity by the defendant which involved the use
or attempted use of force or violence or the express or implied threat to use force
or violence.”
       Regarding this factor, the court instructed as follows: “Evidence has been
introduced for the purpose of showing that the defendant has committed the
following criminal acts: murder, conspiracy to commit murder, attempted murder,
assault, battery, battery by gassing of a custodial or peace officer, attempted
battery by gassing of a custodial or peace officer, assault with force likely to cause
great bodily injury, possession or manufacture of a weapon while confined in a
penal institution or county jail, and obstructing or resisting a peace officer, which
involved the express or implied use of force or violence or the threat of force or



                                          31
violence. Before a juror may consider any criminal act as an aggravating
circumstance in this case, a juror must first be satisfied beyond a reasonable doubt
that the defendant did, in fact, commit the criminal act. A juror may not consider
any evidence of any other criminal acts as an aggravating circumstance.”
       The court also instructed that as to any unadjudicated criminal acts, “the
defendant is presumed to be innocent, and in case of a reasonable doubt whether
his guilt is satisfactorily shown, he‟s entitled to be found not guilty.” It defined
reasonable doubt. (See CALJIC No. 8.87.)
       When the court and parties had previously discussed these instructions
outside the jury‟s presence, defense counsel stated that, “after conferring,”
defendant did not want the court to instruct the jury on the elements of the
unadjudicated offenses.
       Defendant now contends this instruction “improperly directed [the jurors]
to find that certain acts were committed with force and violence and permitted
them to consider acts that were not committed with force and violence as
aggravating circumstances under [Penal Code section 190.3,] factor (b).” With
one possible exception, all of the crimes on which the court instructed inherently
involved force or violence or the threat of force or violence. (See People v.
Nakahara (2003) 30 Cal.4th 705, 719-720 [possession of a weapon in jail
constitutes implied threat of violence].) The court left it to the jury to determine
whether defendant committed any of those crimes. “ . . . CALJIC No. 8.87 is not
invalid for failing to submit to the jury the issue whether the defendant‟s acts
involved the use, attempted use, or threat of force or violence. (People v. Ochoa
(2001) 26 Cal.4th 398, 453.) The question whether the acts occurred is certainly a
factual matter for the jury, but the characterization of those acts as involving an
express or implied use of force or violence, or the threat thereof, would be a legal



                                          32
matter properly decided by the court.” (People v. Nakahara, supra, 30 Cal.4th at
p. 720.)
       Defendant notes, correctly, that some of the acts the various witnesses
described in recounting his criminal behavior, considered in isolation, either did
not amount to a crime or did not involve force or violence. That is generally the
case. Not every action a person takes in committing a crime is, by itself, criminal.
But when a continuous course of criminal activity involves force or violence, the
jury may consider the entire course of conduct. Penal Code “[s]ection 190.3,
factor (b), refers to „criminal activity,‟ not specific crimes. . . . [¶] . . .
[C]ontinuous criminal activity is not segmented into portions, with those portions
not themselves involving violence excised. . . . [A]ll crimes committed during a
continuous course of criminal activity which includes force or violence may be
considered in aggravation even if some portions thereof, in isolation, may be
nonviolent.” (People v. Cooper (1991) 53 Cal.3d 771, 840-841.) The trial court
should not, however, instruct the jury regarding any nonviolent crime. (Id. at p.
841.) With one possible exception, the court did not do so. Moreover, the court
specifically prohibited the jury from considering in aggravation any criminal act
not listed.
       To the extent defendant argues the court should have instructed the jury on
the elements of the crimes it listed, his attorneys specifically stated they did not
want such instructions. No sua sponte duty exists to instruct on the elements of
crimes presented in aggravation at the penalty phase. (People v. Lewis and Oliver,
supra, 39 Cal.4th at p. 1054.) Good reason exists for not imposing such a duty.
“[T]he rule absolving the court of a sua sponte duty to instruct on the elements of
crimes introduced under [Penal Code section 190.3,] factor (b), „ “is based in part
on a recognition that, as [a] tactical matter, the defendant „may not want the
penalty phase instructions overloaded with a series of lengthy instructions on the

                                            33
elements of alleged other crimes because he may fear that such instructions could
lead the jury to place undue emphasis on the crimes rather than on the central
question of whether he should live or die.‟ [Citations.]” ‟ ” (People v. Anderson
(2001) 25 Cal.4th 543, 588.) Here, substantial evidence existed that the elements
of the various crimes the court listed were satisfied. “Under these circumstances,
counsel could reasonably wish to avoid focusing the sentencer‟s attention on the
ample evidence that the elements of those offenses were satisfied.” (Ibid.)
       To the extent defendant argues the court should have listed every specific
crime involving force or violence that the evidence supported — for example,
every instance of gassing that the witnesses testified about — we find no sua
sponte duty to do so, largely for the same reasons no sua sponte duty exists to
instruct on the elements of the crimes. A defendant would generally not want the
jury reminded of every crime the evidence showed, especially when, as here, the
crimes were numerous. Defendant certainly would not have benefited from the
court‟s listing of every single act of gassing or assault in jail that the evidence
showed.
       Regarding the possible exception we have mentioned, defendant argues that
the court‟s including obstructing or resisting a peace officer in the list of crimes
the jury could consider allowed it to consider criminal acts that did not involve
force or violence. “Acts or words,” he argues, “that delayed an officer, diverted an
officer‟s attention from his or her duties, or otherwise forced an officer to deal
with [defendant] rather than focus on other duties would have been enough for the
jurors to find that [defendant] obstructed an officer.” The meaning of the
instruction in this regard is not entirely clear. The instruction told the jury to
consider the listed offenses, including “obstructing or resisting a peace officer,
which involved the express or implied use of force or violence or the threat of
force or violence.” This language might be construed as permitting the jury to

                                           34
consider evidence of obstructing or resisting an officer only if it involved force or
violence. But it might also be construed as telling the jury that all of the listed
crimes involved force or violence.
       We need not resolve this ambiguity. Even if we assume the jury would
interpret the instruction as telling it to consider all crimes of obstructing or
resisting a peace officer, whether or not they involved force or violence, the error
was harmless beyond a reasonable doubt. The jury received extensive evidence of
defendant‟s very violent criminal conduct in jail. Any nonviolent obstructing or
resisting a peace officer was trivial by comparison. Moreover, “the jury properly
heard all the evidence” regarding defendant‟s continuous courses of criminal
activity, including any nonviolent crimes he committed during those courses of
conduct. (People v. Cooper, supra, 53 Cal.3d at p. 841.) Instructing on “the
nonviolent crimes added little, if anything, to the impact of the evidence and the
instructions on the far more serious violent crimes.” (Ibid.)
       Contrary to defendant‟s argument, the line of cases from the United States
Supreme Court commencing with Apprendi v. New Jersey (2000) 530 U.S. 466
does not affect these rules. (People v. Ochoa, supra, 26 Cal.4th at pp. 453-454;
People v. Anderson, supra, 25 Cal.4th at pp. 589-590, fn. 14.) The court did not
prejudicially misinstruct the jury regarding Penal Code section 190.3, factor (b).

            3. Cumulative Prejudice and the Effect of Reversing One Special-
                circumstance Finding
       Defendant contends the cumulative effect of the asserted errors requires
reversal. We have reversed the lying-in-wait special-circumstance finding.
Defendant argues that reversal also requires reversal of the death judgment. We
disagree.
       Two valid special-circumstance findings remain: killing a witness and
murder in the commission of kidnapping. Moreover, “the jury was statutorily


                                           35
permitted to consider all of the facts and circumstances underlying [Maria‟s]
murder.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1186.) The jury would
have viewed that murder almost the same way had it not found true the lying-in-
wait special circumstance allegation. (People v. Sandoval (2015) 62 Cal.4th 394,
423.) “Even if the jury had concluded there was insufficient evidence of watching
and waiting to find the lying-in-wait special circumstance true, that conclusion
would have done little to alter the highly aggravated nature of [defendant‟s]
murder of [Maria] . . . . Nor would it have changed the jury‟s assessment of the
other aggravating evidence introduced. We conclude there is no reasonable
possibility that the error affected the penalty phase verdict.” (Ibid.)
       Defendant argues that, in this case, the invalid special-circumstance finding
did significantly alter the jury‟s view of the murder, thus requiring reversal of the
death verdict. He argues that “[t]here is a significant difference in moral
culpability between [defendant‟s] murdering the victim while lying in wait and
spontaneously erupting in anger when confronted with Maria‟s resolve to pursue
the rape charges.” But finding the special circumstance invalid does not
additionally mean the jury had to find that defendant simply erupted in anger. The
jury clearly found — on good, solid evidence — that defendant intended to kill the
victim if and when he learned that she would not drop the rape charge. It clearly,
and reasonably, rejected any eruption in anger claim. The only question on which
the evidence was insufficient was whether defendant learned Maria would not
drop the charges when he spoke with her on the telephone early that morning, or
not until she came to his home with a peace offering about an hour later. This
insufficiency of the evidence regarding the timing was fatal to the special-
circumstance finding, but, in this case, it did not significantly affect defendant‟s
culpability for the murder that, the jury clearly found, he had long intended to
commit if Maria did not drop the charge. We see no reasonable possibility that

                                          36
uncertainty about when, exactly, defendant learned she would not drop the charge
affected the penalty determination.
       We have also assumed the possibility of two additional minor errors: (1)
permitting the jury to consider for its truth Maria‟s statement that defendant had
told her that he knew how to manipulate the system, and (2) permitting the jury to
consider in aggravation nonviolent acts of obstructing or resisting a peace officer.
These possible errors, even considered cumulatively, were not prejudicial.

           4. Challenges to California’s Death Penalty Law
       “Defendant reiterates several contentions we have repeatedly rejected. We
see no reason to reconsider our previous decisions.
       “Penal Code sections 190.2 and 190.3 are not impermissibly broad, and
factor (a) of Penal Code section 190.3 does not make imposition of the death
penalty arbitrary and capricious. [Citation.] „Except for evidence of other crimes
and prior convictions, jurors need not find aggravating factors true beyond a
reasonable doubt; no instruction on burden of proof is needed; the jury need not
achieve unanimity except for the verdict itself; and written findings are not
required.‟ [Citation.] „CALJIC No. 8.88‟s use of the words “so substantial,” its
use of the word “warrants” instead of “appropriate,” its failure to instruct the jury
that a sentence of life is mandatory if mitigation outweighs aggravation, and its
failure to instruct the jury on a “presumption of life” does not render the
instruction invalid.‟ [Citation.] „The trial court was not required to instruct the
jury that there is no burden of proof at the penalty phase, and that the beyond-a-
reasonable-doubt standard and requirement of jury unanimity do not apply to
mitigating factors.‟ [Citations.] Penal Code „[s]ection 190.3‟s use of adjectives
such as “extreme” and “substantial” in describing mitigating circumstances does
not impermissibly limit the jury‟s consideration of mitigating factors.‟ [Citation.]



                                          37
„The court need not delete inapplicable sentencing factors or instruct that statutory
mitigating factors are relevant solely in mitigation.‟ [Citation.] Intercase
proportionality review is not required. [Citation.] California‟s death penalty law
does not violate equal protection by treating capital and noncapital defendants
differently. [Citation.] California‟s use of the death penalty does not violate
international law.” (People v. Sánchez (2016) 63 Cal.4th 411, 487-488, fn.
omitted.)
       Defendant also argues that the recent high court decision of Hurst v.
Florida (2016) 577 U.S. __ [136 S.Ct. 616], which invalidated Florida‟s
sentencing scheme, also invalidates California‟s. It does not. (People v. Rangel
(2016) 62 Cal.4th 1192, 1235 & fn. 16.) “The California sentencing scheme is
materially different from that in Florida.” (Id. at p. 1235, fn. 16.)




                                          38
                              III. CONCLUSION
      We reverse the lying-in-wait special-circumstance finding and otherwise
affirm the judgment.

                                                            CHIN, J.
WE CONCUR:

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




                                      39
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Becerrada
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S170957
Date Filed: April 17, 2017
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William R. Pounders

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme
Court, and Arnold Erickson, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster, David Zarmi and Kimara A.
Aarons, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Arnold Erickson
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300

Kimara A. Aarons
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2270
