Filed 2/4/16




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S025748
           v.                        )
                                     )
JOSE LUPERCIO CASARES,               )
                                     )                        Tulare County
           Defendant and Appellant.  )                     Super. Ct. No. 027503
____________________________________)




        A Tulare County jury convicted defendant Jose Lupercio Casares of the
attempted premeditated murder of Alvaro Lopez and the murder of Guadalupe
Sanchez. (Pen. Code, §§ 664, 187.)1 With respect to the murder, the jury found
true a lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) As
to both offenses the jury found defendant personally used a firearm (§§ 1203.06,
subd. (a)(1), 1192.7, subd. (c)(8); former § 12022.5); it found not true an
allegation he personally inflicted great bodily injury on Lopez (former § 12022.7).
The jury also convicted defendant of carrying a concealed firearm (former
§ 12025, subd. (b)) and possessing cocaine (Health & Saf. Code, § 11350). After
a penalty phase, the same jury returned a death verdict. The trial court sentenced


1      Further statutory references are to the Penal Code unless otherwise
specified.



                                          1
defendant to death and stayed imposition of sentence on the noncapital counts.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
                                      I. FACTS

       A. Guilt Phase

           1. Prosecution’s case-in-chief

               a. Witness testimony

                   1. Alvaro Lopez
     In March 1989, Alvaro Lopez lived in Farmersville with his sister, Hidalia,
and her boyfriend, Guadalupe Sanchez. Lopez had become acquainted with
defendant while they were in jail. On the afternoon of March 30, 1989, Lopez and
Sanchez went to defendant‘s house on Sweet Street in Visalia, where defendant
asked Lopez to obtain three ounces of cocaine for resale. Lopez relied on Sanchez
to procure the drug; after he had done so, between 6:00 and 7:00 p.m., the two
men returned to defendant‘s house. Sanchez was driving and Lopez was in the
front passenger seat; defendant got in the back seat behind Sanchez and Ruben
Contreras sat next to defendant. Neither Sanchez nor Lopez was armed.
     The group set off for the purported buyer‘s house, stopping at a store on
Highway 63 next to the Patterson Tract house in Visalia where defendant said the
buyer lived. Lopez and Sanchez entered the store and bought two beers while
defendant went to the house. When defendant returned to the car, he said the
buyer had visitors and they would wait for him up the road. Sanchez continued
down the road for a short distance, then pulled over and put the car in park with
the motor running. Defendant immediately put a pistol to Sanchez‘s head, told
Contreras to ―secure‖ Lopez, and ordered Sanchez to give him the cocaine.
Contreras put a knife to the side of Lopez‘s neck. Sanchez complied with
defendant‘s demand, handing the drug back over his right shoulder. Defendant


                                         2
then shot Sanchez.2 Lopez grabbed Contreras‘s hand and, feeling Sanchez‘s head
roll onto his shoulder, tried to open the car door. Lopez heard a second shot which
struck him in the left arm. With Contreras stabbing him, Lopez pushed the car
door open with his leg, got out of the car, and fell. Defendant shot at Lopez, who
got up and ran across the road. A man saw him there and Lopez was taken to the
hospital for treatment. He had sustained 17 knife and gunshot wounds, several of
them life threatening, and remained hospitalized for two weeks.
     Lopez did not immediately identify defendant as the perpetrator, instead
telling detectives two Mexican hitchhikers committed the crimes, because he
wanted to exact his own revenge. His girlfriend Evangelina Avalos visited Lopez
at the hospital and told him to tell the truth. Lopez then asked to speak with
detectives and identified defendant from a photo lineup. For a long time, however,
including at the preliminary hearing, he denied drugs were involved in the
incident, only disclosing that fact a few months before trial.




2      After stating defendant shot Sanchez, Lopez testified confusingly that ―[h]e
grabbed it and pulled‖; the prosecutor asked, ―Pulled what?‖ Lopez answered,
―The pistol.‖ The prosecutor attempted to clarify the testimony by asking, ―Are
you referring to a particular part of the pistol?‖ Lopez responded, ―The head.‖
       On cross-examination, defense counsel asked Lopez, ―After [Sanchez]
handed the drugs back over his shoulder, then what did [Sanchez] do?‖ Lopez
answered, ―Nothing. He just grabbed it, and with the other hand he pulled.‖
Counsel asked: ―Okay. When you say he, you mean [Sanchez] grabbed what?‖
Lopez answered: ―When [defendant] grabbed the drug he pulled the gun.‖
Counsel asked: ―Okay. [Sanchez] pulled the gun, right?‖ Lopez answered:
―[Defendant].‖ Counsel: ―[Sanchez] grabbed the gun with his hand, didn‘t he?‖
Lopez: ―No.‖ Lopez later explained that by saying ―he pulled the pistol‖ he
meant defendant ―pull[ed] the trigger on the pistol‖ ―to fire.‖



                                          3
                   2. Gilbert Galaviz3
     In March 1989, Gilbert Galaviz was living on Sweet Street in Visalia with
Maria Lupercio Contreras and Alicia Lupercio, Ruben Contreras‘s sisters. On the
30th of that month, Galaviz testified, defendant, who was staying at the house, and
Ruben Contreras came to the house. In the late afternoon, he saw them get into a
small beige four-door car. Two other men whom Galaviz did not know were also
in the car. The men left and returned about an hour later. Just before dark, about
7:00 or 7:30, Galaviz saw defendant and Contreras leave again in the same car.
Contreras was carrying a knife and defendant a gun that Galaviz had seen him
cleaning earlier that day. Galaviz recalled defendant was wearing black pants and
a hat with a Harley Davidson symbol on it. About 8:30 that evening, defendant
and Contreras returned to the Sweet Street house with blood on their clothes.
They went to the restroom and began washing up; defendant changed clothes and
cleaned a gun. They said they had killed a pig and almost killed another one, but
it got away. Defendant offered Galaviz some cocaine.

               b. Physical evidence
     The body of Guadalupe Sanchez was found lying supine in a residential area,
on the south side of Avenue 328 in Visalia; nearby were a bloody knife and two
shell casings. Around the palm of his left hand was his watch. The cause of death

3       At the time of his testimony, Galaviz was serving a sentence of 25 years to
life for murder in an unrelated case. Galaviz had also been convicted of attempted
grand theft in 1982 and two counts of burglary in 1983. He acknowledged that he
came forward and contacted police regarding this case after his arrest for petty
theft on April 8, 1989, at a time when he was also about to be sentenced on a
burglary charge, because he hoped to be released from jail quickly. In fact, after
he told police what he knew, he was released on his own recognizance despite a
prior failure to appear. He understood that he received a reduced sentence on the
pending burglary charge because of his cooperation with police. Galaviz testified
his memory was affected by a recent threat to himself or others close to him.



                                         4
was a single gunshot wound to the head. The bullet entered the back of the head
just to the left of the midline and traveled left to right and slightly downward,
exiting under the right eye. Powder tattooing around the entry wound and thermal
burning of the tissue under the wound indicated that the muzzle of the gun when
fired was either touching the skin or within an inch of it.
     The car Sanchez had been driving was found the day after the murder, about
three blocks from the Sweet Street house where defendant was staying. Blood was
on the seats, in the trunk, on the floorboard, side panels, and glove box, and on the
exterior on the passenger side and hood. A bullet hole in the windshield
originated from inside the car, the shot having been fired from the left side of the
driver‘s headrest.
     Detective Eric Grant of the Tulare County Sheriff‘s Office crime lab
processed the car and collected many fingerprints, which were first analyzed by
Detective Brian Johnson, who had spent most of his 18-year career in the crime
lab. Johnson testified his lab used a standard of eight to 10 points of comparison
when calling a match between a latent print and a known set of prints; he
personally liked to see 10 to 12 matching points, but acknowledged that some labs
consider fewer than eight points to be sufficient. Johnson determined that none of
the fingerprints submitted to him matched those of Maria Lopez [sic; possibly
Maria Contreras, a resident of the Sweet Street house, or Maria Vasquez, a
girlfriend of Alvaro Lopez], Lopez‘s sister Hidalia, Evangelina Avalos, or Gilbert
Galaviz, but three of the prints matched Ruben Contreras‘s. Johnson and his
supervisor were unable to make a comparison of two prints, one made in blood
and taken from the driver‘s side rear seat and one left on the passenger‘s side
trunk.
     All of the prints Grant obtained were eventually sent to the state Department
of Justice‘s Fresno Regional Laboratory for further analysis. Richard Kinney, a

                                          5
latent print analyst at the Fresno lab, confirmed the matches Johnson and his
supervisor had made, as well as the exclusions. In addition, Kinney found the
bloody print on the rear seat had the same ridge characteristics and placement as
defendant‘s known print, based on more than 10 matching characteristics. He also
determined that the print lifted from the trunk matched defendant‘s palm print,
based on at least 10 matching characteristics.

                c. Defendant’s arrest; murder weapon
     Defendant was arrested on April 8, 1989, outside a residence in the 100 block
of Strawberry Street. After an officer forced him to the ground, a handgun later
determined to be the murder weapon was found underneath him. The gun did not
possess a ―hair trigger‖; it required from nine to 15 pounds of pressure to fire.
Two small packages of cocaine were found in a pocket of the jacket defendant was
wearing at the time of his arrest.

                d. Additional evidence of Lopez’s drug dealings
     In 1989, Gracie Mendez was living with cocaine dealer Abundio Burciaga
and knew Alvaro Lopez and Guadalupe Sanchez, who was Burciaga‘s cousin.
Lopez worked for Burciaga for at least two years before Sanchez‘s murder, and
continued to sell drugs for a year thereafter. Burciaga would go to Los Angeles
weekly to buy four to five thousand dollars‘ worth of cocaine, and Lopez often
went with him. Lopez would also buy drugs in Los Angeles for Burciaga and
bring them back. Burciaga ultimately fired Lopez for stealing from him. On
March 30, 1989, Mendez testified, Lopez and Sanchez came to Burciaga‘s house
and Burciaga gave them a brown bag with about five thousand dollars in it.
     After hearing that Sanchez had been killed, Burciaga had two conversations
with Mendez concerning the killing. In one, he told her he had intended for Lopez




                                          6
to be killed; in the other, he said ―they‖ had meant for Lopez to be killed, referring
to a man called ―El Capitan.‖

           2. Defense case

                a. Alibi evidence
     The defense sought to show that defendant was at an apartment on
Strawberry Street at the time the murder was committed.
     Defendant‘s cousin Antonio Navarro Lupercio testified that, on March 30,
1989, he went to the Strawberry Street apartment and saw defendant and Contreras
playing cards about 2:00 p.m. Antonio saw defendant drink a beer and heard him
mention he had a court date on the 31st. Defendant was still there when Antonio
left about 6:00 p.m. On cross-examination, Antonio admitted he was unsure on
what date he made these observations, although he was sure defendant said he had
a court date on the 31st. He also acknowledged being uncertain about the time of
his visit, and that he had previously testified he arrived at 4:30 and left at 7:30.
     Defendant‘s cousin Ambrosia Martinez testified she was at the Strawberry
Street apartment on March 30, 1989, and saw defendant there around 6:00 or 6:30
p.m.; he told her he had to go to court the following day. On cross-examination,
she admitted she was unsure about the date and whether it was defendant or
someone else who said defendant had to go to court.
     Defendant‘s friend Guadalupe Medina testified he went to the Strawberry
Street residence and saw defendant there almost every day. Medina recalled
telling an officer that on one occasion, about 5:30 or 6:00 p.m., defendant declined
a beer because he said he had to go to court the next day. Medina could not recall
the exact date when this happened, and could not recall when defendant left the
residence on that occasion.




                                           7
     Delia Contreras, the mother of two of defendant‘s children and the sister of
Ruben Contreras, Maria Lupercio Contreras, and Alicia Lupercio, testified she
drove defendant and Ruben to court on March 31, 1989, picking them up at the
Sweet Street residence about 7:00 a.m. She also testified that, the night before she
took them to court, she drove by the Strawberry Street residence about 6:00 or
7:00 p.m. and saw defendant there.
     The parties stipulated that on March 31, 1989, defendant made an appearance
on the morning calendar in the Visalia Municipal Court.

               b. Gilbert Galaviz
     The defense also sought to show that Gilbert Galaviz, not defendant,
committed the murder with Ruben Contreras.
     Maria Susie Contreras, Ruben Contreras‘s sister, was found to be unavailable
to testify at defendant‘s trial; her testimony at defendant‘s preliminary hearing and
Ruben Contreras‘s trial was read to the jury. In that testimony, Maria stated that
in March 1989 she was living on Sweet Street with her sister Alicia Lupercio,
Alicia‘s children, her brother-in-law Manuel Lupercio, and her boyfriend, Galaviz.
Defendant also stayed at the residence ―off and on.‖ On March 30 of that year,
she went to a shopping mall about 3:00 p.m. and returned at 9:00 p.m., entering
the house through the back door and going directly to her room and to bed. Alicia
and her children were in the house; Maria did not know who else was present.
Maria slept through the night and was therefore unaware of what may have
happened in the house, but believed Galaviz was absent because she would have
had to get up and let him in. The next morning, Maria did not see defendant or
Ruben. Galaviz returned home sometime after 10:00 a.m. He was carrying his
shirt, his pants were stained and dirty, and there was blood on his clothing. When
Maria asked him what happened, he at first said, ―Nothing‖; when she repeated the



                                          8
question, he ―came out real smart and said, ‗I killed a pig.‘ ‖ She offered to wash
the clothes, but Galaviz told her instead to get rid of them and to burn them.
When she persisted, telling him he could wear the clothes to work, he again
insisted she get rid of them. Eventually he took the clothes and she never saw
them again. About a week later, Maria learned Ruben had been arrested for the
murder of Sanchez and the attempted murder of Lopez. Although she had seen
blood on Galaviz‘s clothes, she did not think he was involved because he had
previously gotten into fights and come home in the same condition. During the
time she lived with Galaviz, she saw him with a black gun with a clip. She last
saw the gun in a box in which he kept his clothes. Galaviz told her he sold the gun
to defendant on April 1.
     Delia Contreras testified that when she arrived at the Sweet Street residence
on the morning of March 31 to take defendant and Ruben to court, the two were
sleeping in the living room, and Alicia and her children were in one of the two
bedrooms. She did not recall seeing Galaviz at the residence at that time. In late
February 1989, she had seen Galaviz in possession of a gun that was generally the
same color and shape as the one found in defendant‘s possession at the time of his
arrest. About two days before March 30 of that year, she saw a gun in a box of
clothes in the bedroom her sister and Galaviz shared in the Sweet Street residence.
     Called to the witness stand, Alicia Lupercio repeatedly said she could not
remember the events of March 30, 1989. But when Detective Pinon interviewed
Alicia on May 6, 1989, she had told him that on March 30 defendant, her brother
Ruben, and Galaviz were at her home on Sweet Street; defendant and Ruben left at
4:00 p.m., but she did not see whom they left with; Galaviz stayed and worked on
a car; and defendant and Ruben did not return until about 10:00 p.m. Alicia did
not recall what they were wearing when they returned or whether they had blood
on their clothing, and she had never seen defendant or Galaviz with a gun.

                                          9
     Severa de la Rosa was close friends with Ruben Contreras‘s mother and a
cousin of Estella Lopez Galaviz4 and Lolly Lopez. She also knew Galaviz well;
he had lived with her family until his marriage to her niece, with whom he had had
a child. De la Rosa testified that on April 1, 1989, she saw Galaviz and another
man in a small beige truck at a Circle K convenience store in Visalia. Galaviz
tried to sell her a gun and some rings. It was ―usual‖ for him to have a gun in his
possession. A defense investigator showed her a catalog of guns, from which she
picked out a black nine-millimeter gun as looking similar to the one Galaviz had.
     Lolly Lopez, the sister of Estella Lopez Galaviz and Maria Vasquez, testified
that, several months after the crime, Gilbert Galaviz told her he was sitting in the
back seat of a car in Visalia when ―Alejandra‘s son‖ shot a man in the back of the
head. She later learned the man was Ruben Contreras. Galaviz indicated drugs
and money were involved.
     Joann Galaviz, Gilbert Galaviz‘s sister, denied telling Defense Investigator
Wells that in September 1989 she heard a woman named Helen fighting with
Gilbert about an occasion when he shot a man in Visalia. Joann testified she had
been confused; she had actually heard Gilbert and Helen talking about a different
murder that Gilbert committed in Shafter. Wells testified, to the contrary, that
Joann was not confused when he spoke with her about a murder in Visalia.

           3. Prosecution’s rebuttal
     The prosecution re-called Galaviz, who denied accusations raised in the
defense case. He testified he never had a close relationship with Lolly Lopez and
never had a conversation with her about being involved in a murder that took place
in March 1989, when Ruben Contreras shot a man in Patterson Tract. He did not


4      Estella Lopez Galaviz had previously gone by the name Helen Lopez.



                                         10
see Severa de la Rosa in Visalia shortly after Sanchez‘s murder and did not try to
sell her a gun or a ring about that time. Although he sometimes visited his sister
Joann in Bakersfield, and sometimes took women there with him, he did not recall
if he ever took Estella Galaviz and did not recall having an argument with Estella
there about a killing that took place in either Tulare or Kern County; he never told
Estella anything about a killing by defendant or Contreras. Estella testified,
consistently, that Galaviz never told her about a killing that occurred on March 30,
1989, in Patterson Tract; rather, he told her about a killing in Shafter.

       B. Penalty Phase

           1. Aggravating evidence

                a. August 8, 1979, shooting at occupied vehicle
     Sometime after midnight on August 8, 1979, City of Tulare Police Officer
Rush Mayberry was parked at the intersection of Pratt Street and Inyo Avenue
across from a well-lit shopping center. Two cars were parked in the lot and a
white car was moving through it. Defendant was standing near one of the parked
cars and, when the white car passed the two parked cars, he retrieved a .22-caliber
Remington rifle from the back seat of one of the parked vehicles. He then went to
the rear of one of the cars and, from a distance of about 50 feet, fired twice at the
white car. One shot left a dent in the lower part of the car‘s trunk; the other put a
dent in the corner of the bumper. Mayberry responded to the scene and detained
defendant and two others. From the back seat of the car Mayberry retrieved the
rifle, which was loaded with two rounds in the magazine and one round in the
chamber. Defendant, who said he had been drinking that evening, told detectives
the car had driven by three times, and the occupants had used racial slurs and
threatened him with bodily harm. At one point, defendant said, one of the
occupants got out of the vehicle, walked up to him, and said they had a gun and


                                          11
could kill him; at no point, however, did the occupants brandish a gun, and
defendant never saw one. On the car‘s third pass, one of the occupants motioned
him over, and defendant assumed they wanted a confrontation. Defendant then
shot at the vehicle, intending only to hit the tires.

                b. November 26, 1980, Boas Minnow Farm robbery
     On November 26, 1980, Paula Estes was working at Boas Minnow Farm
when two Hispanic men entered the store and looked around, saying they were
interested in buying handguns. A third Hispanic man then walked in, pulled a ski
mask over his face and, at gunpoint, told Estes to lie down on the floor. Estes
complied and was blindfolded and tied up with her hands behind her back. The
robbers took guns out of the display case and off the rack and stole about $200
before fleeing in an old station wagon.
     In November 1980, Delia Contreras owned a green station wagon. She did
not recall who had the vehicle on the morning of November 26. When asked if
she told Detective Diaz that defendant, her common-law husband, and others were
at her trailer and left in the green station wagon at 7:00 a.m., she said that she did
not know, they ―just took off,‖ and she did not see where they went, but that they
might have left in the station wagon.

                c. August 23, 1984, possession of handgun at Arrow Motel
     On August 23, 1984, Visalia Police Department narcotics agent Rory
Vadnais and other officers went to the Arrow Motel in Goshen, where they made
contact with defendant. Vadnais noticed a bulge that appeared to be the outline of
a handgun in defendant‘s right front pants pocket. Defendant was arrested and
found to be in possession of a loaded .22-caliber revolver.




                                           12
                d. February 19, 1987, possession of handgun at Strawberry Street
     On February 19, 1987, police made contact with defendant at an apartment
located on Strawberry Street in Visalia. A police officer searched defendant‘s
person and recovered car keys from his jacket pocket. The officer had several
times previously seen defendant sitting in the driver‘s seat of a 1974 Monte Carlo
parked in front of the apartment building. Police determined that the keys fit the
Monte Carlo and found a two-shot .45-caliber derringer under the driver‘s seat.

                e. March 16, 1989, possession of handgun at Circle K
     On the night of March 16, 1989, Officer Michael Stow of the Visalia Police
Department saw a van parked at the Circle K convenience store on Old Dinuba
Road. Officer Stowe pulled in behind the vehicle and approached defendant, the
only occupant, who was seated in the driver‘s seat. He asked defendant for
identification and defendant orally identified himself. Defendant told Stowe the
van did not belong to him. Stowe searched the vehicle for documentary
identification and found a loaded gun and ammunition on the floorboard to the
right side of the driver‘s seat.

                f. Sexual assaults on Rosa B.
       Rosa B. testified that when she was 12 years old she lived on a ranch in the
Mexican state of Michoacan. Her ranch was relatively close to the ranch where
defendant lived with his family, only about two hours‘ walk away. The families
were on friendly terms; her parents were defendant‘s godparents. Defendant‘s
father came to Rosa‘s house and told her several times she was going to be his
daughter-in-law. Defendant visited her to ask her to be his girlfriend. When she
declined, he did not seem angry. One night about two months later, defendant and
six members of his family, some of them armed, came to the house where Rosa
was staying and forcibly took her to their ranch, where she was held for about five
months. At first she was kept in a banana orchard; then she was taken to their


                                        13
house. Defendant raped her many times, always at his father‘s command. Several
times Rosa heard defendant‘s father threaten to kill him. Defendant did not have
to use force; Rosa submitted because his father ordered her to do so. One morning
about five months after her abduction, Rosa‘s brother rescued her, shooting and
killing defendant‘s father.

                g. Prior felony convictions
     Defendant pleaded guilty to one count of robbery in connection with the
Boas Minnow Farm incident. In another case he was convicted of one count of
possession of narcotics for sale.

             2. Mitigating evidence

                a. Physical and mental abuse by defendant’s father
       Defendant‘s younger sister Maria Delores (Lola) Lupercio Casares testified
their father physically abused all the members of their family, including defendant.
He beat their mother on a daily basis and would hang her by a rope over a ceiling
rafter until she passed out. Defendant was present and witnessed these episodes of
abuse. When Rosa was brought to live with defendant‘s family, Lola saw
defendant‘s father order defendant to ―make her his,‖ in other words, to rape her.
Once when defendant could not perform sexually, the father belittled him, saying
―You‘re not a man, you‘re good for nothing.‖ The father also sometimes beat
defendant.
       Defendant‘s cousin Antonio Navarro Lupercio testified he lived near
defendant during their childhood and saw him on a daily basis. Antonio saw
defendant‘s father beat him unconscious, and saw the father abuse all members of
the household. Defendant was ―very much‖ afraid of his father.




                                        14
       Defendant‘s uncle Alfredo Navarro testified that when defendant was a
child he saw defendant‘s father beat him with pieces of wood or whatever he could
find, and defendant appeared to be very frightened of his father.

               b. Testimony by Richard A. Blak, Ph.D.
       Psychologist Richard A. Blak, Ph.D., interviewed defendant, administered
psychological tests, and reviewed documents provided by defense counsel. Blak
testified defendant had suffered from dysthymia, a type of chronic depression, and
generalized anxiety reaction since childhood as a result of severe abuse and
victimization by his father. Defendant‘s intellectual functioning was in the
borderline to very low average range. Defendant also suffered from avoidant,
obsessive-compulsive, and antisocial personality disorders and abused alcohol and
drugs as an adult. These conditions existed at the time of the capital crime and
impaired defendant‘s capacity to appreciate the quality of his actions.
                                  II. DISCUSSION

       A. Guilt Phase Issues

           1. Sufficiency of evidence of first degree murder and lying-in-wait
               special circumstance

               a. Standard of review
       Defendant contends that the prosecution adduced insufficient evidence to
support the first degree murder conviction on the sole theory submitted to the jury,
that of premeditation and deliberation, and that the trial court therefore erred in
instructing the jury on this theory. He also contends the evidence was insufficient
to support the jury‘s true finding on the lying-in-wait special-circumstance
allegation and that the trial court erred in denying his motion under section 1118.1
to dismiss the allegation at the close of the prosecution‘s case.




                                          15
       ―When a defendant challenges the sufficiency of the evidence, ‗ ―[t]he court
must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.‖ ‘ ‖ (People v. Clark (2011)
52 Cal.4th 856, 942–943 (Clark).) ―The standard of appellate review is the same
in cases in which the People rely primarily on circumstantial evidence.‖ (People
v. Bean (1988) 46 Cal.3d 919, 932.) ―Although a jury must acquit if it finds the
evidence susceptible of a reasonable interpretation favoring innocence, it is the
jury rather than the reviewing court that weighs the evidence, resolves conflicting
inferences and determines whether the People have established guilt beyond a
reasonable doubt.‖ (People v. Yeoman (2003) 31 Cal.4th 93, 128.) ― ‗ ―If the
circumstances reasonably justify the trier of fact‘s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.‖ ‘ ‖ (Bean, at p.
933; see People v. Jones (2013) 57 Cal.4th 899, 961 (Jones).) We apply the same
principles in reviewing the sufficiency of the evidence to support a special
circumstance finding. (People v. Brady (2010) 50 Cal.4th 547, 563, fn. 8.)

               b. First degree murder
       ―A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. (§ 189 [‗willful, deliberate and premeditated
killing‘ as first degree murder].) ‗Deliberation‘ refers to careful weighing of
considerations in forming a course of action; ‗premeditation‘ means thought over
in advance. (People v. Bender (1945) 27 Cal.2d 164, 183; People v. Thomas
(1945) 25 Cal.2d 880, 900; see People v. Perez (1992) 2 Cal.4th 1117, 1123–
1124 . . . .‖) (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) ― ‗ ―The true test is



                                         16
not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived
at quickly. . . .‖ ‘ ‖ (Ibid.)
       In People v. Anderson (1968) 70 Cal.2d 15, 26–27 (Anderson), this court
identified ―three factors commonly present in cases of premeditated murder:
‗(1) [F]acts about how and what defendant did prior to the actual killing which
show that the defendant was engaged in activity directed toward, and explicable as
intended to result in, the killing—what may be characterized as ―planning‖
activity; (2) facts about the defendant‘s prior relationship and/or conduct with the
victim from which the jury could reasonably infer a ―motive‖ to kill the victim,
which inference of motive, together with facts of type (1) or (3), would in turn
support an inference that the killing was the result of ―a pre-existing reflection‖
and ―careful thought and weighing of considerations‖ rather than ―mere
unconsidered or rash impulse hastily executed‖ [citation]; (3) facts about the
nature of the killing from which the jury could infer that the manner of killing was
so particular and exacting that the defendant must have intentionally killed
according to a ―preconceived design‖ to take his victim‘s life in a particular way
for a ―reason‖ which the jury can reasonably infer from facts of type (1) or (2).‘ ‖
(People v. Koontz, supra, 27 Cal.4th at p. 1081.) ―As we have cautioned,
however, ‗[u]nreflective reliance on Anderson for a definition of premeditation is
inappropriate. The Anderson analysis was intended as a framework to assist
reviewing courts in assessing whether the evidence supports an inference that the
killing resulted from preexisting reflection and weighing of considerations. It did
not refashion the elements of first degree murder or alter the substantive law of
murder in any way.‘ [Citation.] In other words, the Anderson guidelines are
descriptive, not normative.‖ (Ibid.)



                                          17
       Here, viewed in the light most favorable to the judgment (People v. Panah
(2005) 35 Cal.4th 395, 487), the evidence showed that on March 30, 1989,
defendant asked Alvaro Lopez to procure three ounces of cocaine for sale to an
unnamed buyer. Before meeting up with Lopez and murder victim Guadalupe
Sanchez to consummate the deal, defendant was seen cleaning a gun, with which
he armed himself before he and his confederate, Contreras—carrying a knife—got
into the victims‘ car. Neither Sanchez nor Lopez was armed. Defendant
positioned himself behind Sanchez, who was driving; Contreras, behind Lopez on
the passenger side. After driving to a store on Highway 63 next to a house where
defendant said the buyer lived, defendant went up to the purported buyer‘s house
while Sanchez and Lopez bought a beer at the store. Returning to the car,
defendant told the victims the buyer had visitors and would meet them up ahead.
Sanchez continued down the road for a short distance, pulled over, and put the car
in park with the motor running. Defendant immediately put a pistol to Sanchez‘s
head, ordered Contreras to ―secure‖ Lopez, and demanded the cocaine. Sanchez
complied, defendant shot him, and Contreras began stabbing Lopez, who tried to
open the car door. Defendant fired a shot that struck Lopez in the arm. With
Contreras stabbing him, Lopez managed to push the car door open with his leg,
got out of the car, and fell. Defendant shot at him again; Lopez got up and ran
across the road.
       This evidence permitted a rational jury to find that defendant formed a plan
to rob and kill Sanchez and Lopez with Contreras‘s assistance, preparing ahead of
time to execute the plan by cleaning his gun and arming himself with it. The
method by which defendant killed Sanchez (a gunshot to the back of the head at
very close range) was sufficiently particular and exacting to support the inference
he intentionally killed him according to a preconceived design. (People v. Romero
(2008) 44 Cal.4th 386, 401 (Romero).)

                                         18
       Defendant contends the record contains no substantial evidence of planning
activity, motive to kill, or an exacting method of execution. Rather, he urges, the
evidence reveals a rash, impulsive act that occurred in a struggle over the gun. He
argues the prosecution‘s argument invited the jury to speculate, i.e., to ―start out
by assuming‖ that defendant planned to kill Sanchez and Lopez and work from
that assumption to infer that the motive for the plan was to take their vehicle as a
getaway car without the risk of their reporting the theft to law enforcement. In the
prosecution‘s scenario, defendant had the victims drive to a residential area rather
than some remote location so as to avoid arousing their suspicion. Defendant
ridicules the prosecutor‘s interpretation of the facts to show motive or
preconceived plan, arguing that because drug dealers like Sanchez and Lopez
would never have reported to law enforcement having been robbed of drugs and
their car during a drug transaction, defendant could have had no motive to kill
Sanchez and Lopez. Instead, he asserts, the circumstances of the crime suggest an
unconsidered, impulsive killing.5 He contends no substantial evidence supports
the prosecution‘s theory that the purported buyer of the cocaine was a ruse, further
undermining the prosecutor‘s theory that the killing was part of a preconceived
plan. In support, defendant points to Lopez‘s testimony that ―he pulled the pistol‖
(see ante, fn. 2), which he contends suggests Sanchez was shot when he tried to
wrest the gun from the shooter‘s hand. Finally, defendant argues, the record

5      In arguing the insufficiency of the evidence to show planning activity,
defendant also relies on the fact the trial court dismissed, on collateral estoppel
grounds, a count alleging conspiracy to commit murder because the jury in
Contreras‘s trial acquitted him of conspiracy to commit murder and found a lying-
in-wait special-circumstance allegation not true. But the circumstance that
Contreras‘s jury was not convinced beyond a reasonable doubt that Contreras
engaged in concerted action does not undermine the findings of the jury in this
case that defendant premeditated Sanchez‘s killing.



                                          19
contains insufficient evidence of a manner of killing so ―particular and exacting‖
as to support an inference ―defendant must have intentionally killed according to a
‗preconceived design‘ to take his victim‘s life.‖ (Anderson, supra, 70 Cal.2d at p.
27.) Rather, he contends, the evidence—specifically, Lopez‘s testimony regarding
―pull the pistol,‖ the gunshot residue on the driver‘s headrest, and the fact
Sanchez‘s wristwatch was pulled up on his palm when his body was found—
reflects that the shooting occurred during a struggle over the gun.
     We are unpersuaded. That the location of the killing was not ideal does not
negate an inference that it was planned. Although the prosecutor inartfully asked
the jury to ―assume‖ defendant planned to kill the victims, in context he was
essentially arguing the evidence logically fit such a theory of the case and inviting
the jury to interpret it similarly, as he was entitled to do. The prosecution‘s theory,
that the purported buyer was a ruse, was not an element of the crime required to be
supported by substantial evidence but was rather an inference that the jury was
free to draw or reject and which found support in the circumstances that no buyer
ever actually appeared and, that after a short drive down the road, defendant
immediately carried out the robbery and execution-style murder of Sanchez.
Despite Lopez‘s confusing initial testimony about ―pull[ing] the pistol,‖ on cross-
examination Lopez clarified that defendant shot Sanchez immediately after
demanding and receiving the cocaine and there was no struggle over the gun. In
this connection, forensic scientist Gary Cortner‘s testimony the murder weapon
did not have a hair trigger, but required nine to 15 pounds of force to fire, is
significant. Although the fact Sanchez‘s watch was pulled up onto his palm when
his body was found could support an inference the killing occurred in the course of
a struggle, no testimony established how the watch came to be in that position and,
as the Attorney General suggests, the jury could equally well have inferred it
happened when Sanchez was dragged out of the car. Assuming, as defendant

                                          20
posits, the attack on Lopez was ―chaotic,‖ this merely reflects the surviving
victim‘s effort to escape the deadly threat and does not undermine the inference of
premeditation and deliberation flowing from the manner in which defendant killed
Sanchez.
     Essentially, defendant argues competing inferences he wishes the jury had
drawn, but substantial evidence supports the jury‘s decision that his shooting of
Sanchez during a purported drug deal was the product of premeditation and
deliberation. Defendant‘s claim of insufficient evidence, together with his
derivative due process argument, therefore fails.

               c. Special circumstance
     At the time of defendant‘s crime, the special circumstance of murder while
lying in wait (former § 190.2, subd. (a)(15)) required ―an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and
(3) immediately thereafter, a surprise attack on an unsuspecting victim from a
position of advantage.‖ (People v. Morales (1989) 48 Cal.3d 527, 557 (Morales).)
―The element of concealment is satisfied by a showing ‗ ―that a defendant‘s true
intent and purpose were concealed by his actions or conduct. It is not required that
he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v.
Sims (1993) 5 Cal.4th 405, 432–433 (Sims); see People v. Moon (2005) 37 Cal.4th
1, 22 (Moon).) ―As for the watching and waiting element, the purpose of this
requirement ‗is to distinguish those cases in which a defendant acts insidiously
from those in which he acts out of rash impulse. [Citation.] This period need not
continue for any particular length ― ‗of time provided that its duration is such as to
show a state of mind equivalent to premeditation or deliberation.‘ ‖ ‘ ‖ (People v.
Mendoza (2011) 52 Cal.4th 1056, 1073 (Mendoza).) Defendant contends his case



                                          21
is ―qualitatively different‖ from others in which this court has upheld lying-in-wait
special-circumstance findings, in that the evidence of premeditation and
deliberation was weak, the evidence failed to show that the concealment of
purpose was murderous, the ―legally relevant‖ period of watching and waiting
occurred in a few seconds, and the victim was not surprised by the attack. These
shortcomings, he contends, dictate reversal of the special-circumstance finding.
     At the close of the prosecution‘s case at the guilt phase the defense moved
under section 1118.1 to strike the special circumstance for insufficient evidence.
In denying the motion, the court reasoned the fact defendant and Contreras armed
themselves before meeting with the victims supported an inference they intended
to rob or kill them; their concealment of their weapons and acting in concert to rob
and kill the victims reflected a plan to carry out their criminal act at an opportune
time and place; their sitting in the back seat gave them a position of advantage that
facilitated their surprise attack, and they concealed their purpose from the victims
until defendant held a gun to Sanchez‘s head and demanded the cocaine, which
occurred only after the car had been driven several miles and made two stops.
Finally, the court found support for a conclusion the murder occurred immediately
after the period of watching and waiting, in that defendant shot Sanchez
immediately after Sanchez complied with defendant‘s demand for the cocaine, in
―a continuous and unbroken plan to wait, watch, rob and kill.‖
     Defendant takes issue with the conclusion that sufficient evidence supported
the elements of the special circumstance in this case. (His further challenge to the
jury instructions on the lying-in-wait special circumstance are discussed post, in
pt. II.A.4.) He first urges there was insufficient evidence he concealed a
murderous purpose. Unlike in several other lying-in-wait special-circumstance
cases, he notes, such a purpose was not established by the admission of evidence
of other similar crimes reflecting a murderous purpose. (E.g., People v. Carpenter

                                          22
(1997) 15 Cal.4th 312, 378, 389 (Carpenter) [uncharged rape murders]; People v.
Stevens (2007) 41 Cal.4th 182, 187–189 (Stevens) [nonfatal freeway shooting
occurring shortly after fatal shooting]; Moon, supra, 37 Cal.4th at pp. 22–23
[second lying-in-wait murder shortly after, and in same manner, as first lying-in-
wait murder].) Nor was there in this case, as in People v. Jurado (2006) 38
Cal.4th 72, 82–88 (Jurado), People v. Hillhouse (2002) 27 Cal.4th 469, 480–481
(Hillhouse), and other cases defendant cites, evidence of a preannounced intention
to kill the victim. Defendant points to no authority, however, holding evidence of
other similar crimes or a preannounced intent to kill is necessary to establish the
special circumstance. ―When we decide issues of sufficiency of evidence,
comparison with other cases is of limited utility, since each case necessarily
depends on its own facts.‖ (People v. Thomas (1992) 2 Cal.4th 489, 516.) Here,
as the trial court reasoned, evidence that defendant and Contreras armed
themselves before getting into the victims‘ car, concealed the weapons they were
carrying, employed an apparent ruse to obviate suspicion, took concerted action
once defendant demanded the cocaine from Sanchez, and did so only after
Sanchez had driven several miles and made two stops, all reasonably supported an
inference defendant and Contreras concealed a murderous purpose from the
victims. That they also entertained an intent to rob the victims does not exclude an
intent to kill.
      Defendant further contends the evidence failed to show a substantial period
of watchful waiting for an opportune time to attack. In his view, the period of
waiting and watching was interrupted when defendant and Contreras left the
victims and went to a nearby house while the victims went to a store and bought
and drank beer, and resumed only when defendant and Contreras rejoined the
victims in the car. Any arguable period of watching and waiting before the killing,
which occurred mere seconds thereafter, he argues, was too insubstantial to satisfy

                                         23
the requirement of the lying-in-wait special circumstance. We disagree. ―A killer
need not view his intended victim during the entire period of watching and
waiting.‖ (People v. Edwards (1991) 54 Cal.3d 787, 825 (Edwards).) The
purpose of the ―watchful waiting‖ requirement—― ‗to distinguish those cases in
which a defendant acts insidiously from those in which he acts out of rash
impulse‘ ‖ (Mendoza, supra, 52 Cal.4th at p. 1073)—is satisfied here despite the
circumstance that the victims were out of defendant‘s sight for a few moments. If
the jury accepted the prosecutor‘s ―ruse‖ theory, it could reasonably have
concluded that nothing occurred during that interval to indicate either an
abandonment of the plan, an alteration in defendant‘s purpose, or a dawning
awareness of that purpose on the victims‘ part.
     In sum, the evidence showing that defendant directed Sanchez to drive up the
road to wait for the purported drug buyer and then—once Sanchez stopped the
car—immediately and in an unbroken sequence of events put his gun to Sanchez‘s
head, robbed him of the cocaine, and shot him from the back seat of the car,
together supported the jury‘s finding that defendant mounted a surprise attack on
Sanchez after a substantial period of watchful waiting for an opportune time to
attack. Defendant‘s challenge to the sufficiency of the evidence of the lying-in-
wait special-circumstance allegation therefore lacks merit.

           2. Restriction on cross-examination of Gilbert Galaviz
       Gilbert Galaviz testified that defendant and Ruben Contreras left the Sweet
Street house on the day of the murder and got into Sanchez‘s car armed with a gun
and a knife, respectively. When they returned, according to Galaviz, they had
blood on their clothes; asked what had happened, defendant said, ― ‗We killed a
pig.‘ ‖ At the time of trial, Galaviz was serving a 25-years-to-life sentence for
murder. On cross-examination, defense counsel asked Galaviz if he used a knife



                                         24
to commit the murder of which he was convicted. The trial court sustained the
prosecutor‘s objection on the ground the facts underlying the conviction were
irrelevant. Defendant contends the trial court erred in so ruling, and that the error
denied him his federal and state constitutional rights to confrontation, to present a
defense, to a fair trial, to due process of law, and to a reliable determination of
guilt and penalty. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7,
15, 16.)
       ― ‗[T]he exposure of a witness‘ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination.‘ ‖
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679, quoting Davis v. Alaska
(1974) 415 U.S. 308, 316–317.) ―It does not follow, [however], that the
Confrontation Clause of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel‘s inquiry into the potential bias of a
prosecution witness.‖ (475 U.S. at p. 679, citing Delaware v. Fensterer (1985)
474 U.S. 15, 20.) ― ‗[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness‘ safety, or interrogation that is repetitive or
only marginally relevant.‘ ‖ (People v. Williams (1997) 16 Cal.4th 153, 208.) The
― ‗ ―[a]pplication of the ordinary rules of evidence generally does not
impermissibly infringe on a capital defendant‘s constitutional rights.‖ ‘ ‖ (People
v. Eubanks (2011) 53 Cal.4th 110, 143.)
       Under California law, the right to cross-examine or impeach the credibility
of a witness concerning a felony conviction does not extend to the facts underlying
the offense. (People v. McClellan (1969) 71 Cal.2d 793, 809; People v.
Heckathorne (1988) 202 Cal.App.3d 458, 462; see Evid. Code, § 786 [evidence of
traits of character other than honesty or veracity, or their opposites, is inadmissible

                                          25
to support or attack a witness‘s credibility].) Defendant contends he should have
been allowed to elicit from Galaviz the fact he used a knife in another homicide
because its relevance extended beyond the witness‘s credibility, in that it tended to
show Galaviz, not defendant, perpetrated the offenses in this case, inasmuch as
one of the victims was stabbed with a knife. Defendant forfeited the point by not
advancing it at trial (People v. Pearson (2013) 56 Cal.4th 393, 470, fn. 10; Evid.
Code, § 354), and it lacks merit in any event. ―A criminal defendant may
introduce evidence of third party culpability if such evidence raises a reasonable
doubt as to his guilt, but the evidence must consist of direct or circumstantial
evidence that links the third person to the crime. It is not enough that another
person has the motive or opportunity to commit it.‖ (People v. Abilez (2007) 41
Cal.4th 472, 517.) That Galaviz had used a knife on a prior unrelated occasion
hardly linked him to the commission of the present crimes. Accordingly, the trial
court did not abuse its discretion in excluding the evidence. Moreover, defendant
suffered no prejudice. Defense counsel elicited from two other witnesses—
Galaviz‘s sister, Joann, and investigator Dan Wells—the fact Galaviz had
committed a knife murder. The court‘s ruling did not deprive defendant of his
right to present a defense.

           3. Instructions assertedly undermining requirement of proof beyond a
               reasonable doubt
       The trial court instructed the jury with various standard instructions
(CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, and 8.20) on how to consider and
weigh the evidence. Defendant contends these instructions undermined the
requirement of proof beyond a reasonable doubt, requiring reversal of the
judgment. We reach the merits of the claim despite defendant‘s failure to object to
any of the instructions below (§ 1259; Clark, supra, 52 Cal.4th at p. 957, fn. 31),
examining whether there is a reasonable likelihood the jury understood the


                                         26
instructions in the way defendant asserts (People v. Solomon (2010) 49 Cal.4th
792, 822).
       As defendant acknowledges, we have rejected his arguments in prior cases.
Because defendant advances no persuasive reason to depart from our precedents,
we adhere to them here. Thus, CALJIC No. 2.01 (concerning the sufficiency of
circumstantial evidence) did not compel the jury to find defendant guilty and the
special circumstance true using a standard lower than proof beyond a reasonable
doubt. (Jones, supra, 57 Cal.4th at p. 972.) Nor did it create an impermissible
mandatory presumption by requiring the jury to draw an incriminatory inference
whenever such an inference appeared ―reasonable‖ unless the defense rebutted it
by producing a reasonable exculpatory interpretation. (People v. Thomas (2012)
53 Cal.4th 771, 812; People v. Brasure (2008) 42 Cal.4th 1037, 1058–1059.)
Similarly, CALJIC Nos. 2.21.2 (a witness‘s willfully false testimony), 2.22
(weighing conflicting testimony), 2.27 (sufficiency of the testimony of a single
witness to prove a fact), and 8.20 (defining premeditation and deliberation) did not
replace the reasonable doubt standard with the preponderance of the evidence test
by urging the jury to decide material issues by determining which side had
presented relatively stronger evidence. (People v. Streeter (2012) 54 Cal.4th 205,
253 (Streeter).) CALJIC No. 2.51 (on motive) does not improperly allow the jury
to find guilt based on the presence of a motive, nor does it lessen the prosecution‘s
burden of proof by shifting the burden to defendants to show absence of motive.
(Streeter, at p. 253.) Nor, contrary to defendant‘s apparent view, did the
instruction mislead the jury regarding the probative value of motive evidence,
given that it directed jurors to give the presence or absence of motive the weight to
which they found it to be entitled. (People v. McKinzie (2012) 54 Cal.4th 1302,
1356.) ―Each of these instructions ‗ ―is unobjectionable when, as here, it is



                                         27
accompanied by the usual instructions on reasonable doubt, the presumption of
innocence, and the People‘s burden of proof.‖ ‘ ‖ (Streeter, supra, at p. 253.)

           4. Asserted errors in lying-in-wait special-circumstance instructions
       The jury was given the then standard CALJIC instruction on the lying-in-
wait special circumstance, CALJIC No. 8.81.15 (1989 rev.).6 Defendant contends
the instruction failed to explain to the jury that the key elements of the special
circumstance—concealment of purpose and watchful waiting for a time to act—
referred to a concealed intent to kill and waiting for a time to launch a lethal
attack. His contention lacks merit.


6       CALJIC No. 8.81.15 (1989 rev.) (5th ed. 1988) read as follows: ―To find
that the special circumstance, referred to in these instructions as murder while
lying in wait, is true, each of the following facts must be proved: [¶] 1. The
defendant intentionally killed the victim, and [¶] 2. The murder was committed
while the defendant was lying in wait. [¶] The term ‗while lying in wait‘ within
the meaning of the law of special circumstances is defined as a waiting and
watching for an opportune time to act, together with a concealment by ambush or
by some other secret design to take the other person by surprise even though the
victim is aware of the murderer‘s presence. The lying in wait need not continue
for any particular period of time provided that its duration is such as to show a
state of mind equivalent to premeditation or deliberation. [¶] Thus, for a killing to
be perpetrated while lying in wait, both the concealment and watchful waiting as
well as the killing must occur during the same time period, or in an uninterrupted
attack commencing no later than the moment concealment ends. [¶] If there is a
clear interruption separating the period of lying in wait from the period during
which the killing takes place, so that there is neither an immediate killing nor a
continuous flow of the uninterrupted lethal events, the special circumstance is not
proved. [¶] A mere concealment of purpose is not sufficient to meet the
requirement of concealment set forth in this special circumstance. However, when
a defendant intentionally murders another person, under circumstances which
include (1) a concealment of purpose, (2) a substantial period of watching and
waiting for an opportune time to act, and (3) immediately thereafter, a surprise
attack on an unsuspecting victim from a position of advantage, the special
circumstance of murder while lying in wait has been established. (Brackets
omitted.)



                                          28
       As defendant acknowledges, in Streeter, supra, 54 Cal.4th 205, we rejected
the contention that CALJIC No. 8.81.15 erroneously permitted the jury to return a
true finding on the lying-in-wait special-circumstance allegation based on a
nonlethal intent. (Streeter, at p. 251.) We reasoned the instruction told the jury
that ― ‗for a killing to be perpetuated [sic] while lying in wait‘: (1) the killing
must be intentional and (2) ‗both the concealment and watchful waiting as well as
the killing must occur during the same time period, or in an uninterrupted attack
commencing no later than the moment concealment ends.‘ In addition, the
instruction required an immediate killing or a continuous flow of the uninterrupted
lethal events from the period of lying in wait. [Citation.] Finally, the instruction
stated that, ‗[W]hen a defendant intentionally murders another person, under
circumstances which include (1) a concealment of purpose, (2) a substantial period
of watching and waiting for an opportune time to act, and (3) immediately
thereafter, a surprise attack on an unsuspecting victim from a position of
advantage, the special circumstance of murder while lying in wait has been
established.‘ [Citation.] Because the instruction required an intentional killing
and an uninterrupted connection between the lethal acts and the period of lying in
wait, a reasonable jury would not have believed that the nonlethal act and intent
[here, that of robbing the victims of the cocaine] would have satisfied the
requirements of concealment of purpose and watchful waiting to act.‖ (Ibid.)
Defendant fails to persuade us our reasoning in Streeter was flawed, and the same
reasoning compels rejection of his claim in this case.
       Defendant further contends the instruction is confusing and contradictory
and failed to provide the jury with adequate guidance concerning the concept of
― ‗cognizable interruption‘ ‖ (Morales, supra, 48 Cal.3d at p. 558) as it relates to
the relevant period of watchful waiting in this case. In People v. Cruz (2008) 44
Cal.4th 636, 678, we held that CALJIC No. 8.81.15 is not ― ‗impossible to

                                           29
understand and apply,‘ ‖ and adhere to that view here. And because we have
generally approved the instructional language (e.g., Sims, supra, 5 Cal.4th 405,
434 [rejecting challenge to 1983 version of CALJIC No. 8.81.15, which was
substantially similar to the 1989 version used in this case]), if defendant wanted
the jury to receive more detailed instruction concerning ―cognizable interruption‖
it was incumbent on him to request it. (See People v. Hardy (1992) 2 Cal.4th 86,
153.) He failed to do so and thus may not complain of the asserted deficiency on
appeal. To the extent defendant may be arguing the evidence in this case
established as a matter of law, and the jury should have been instructed, that a
cognizable interruption in the required watchful waiting occurred based on his
leaving the car to speak with the purported buyer at the latter‘s house while the
victims went inside the convenience store, out of his sight, his argument fails. As
noted, a killer need not keep his intended victim in sight during the entire period of
watchful waiting (Edwards, supra, 54 Cal.3d at p. 825); under the state of the
evidence in this case whether a cognizable interruption occurred remained a
factual question for the jury.

       B. Penalty Phase Issues

           1. Denial of defendant’s motion to exclude evidence of gun possession
     Defendant filed two motions to exclude, on Fourth Amendment grounds,
evidence of two incidents of illegal gun possession. The first motion argued that
the search of a vehicle parked on Strawberry Street from which a gun was
recovered exceeded the scope of a warrant directing the search of the residence at
101 Strawberry Street and ―vehicles on said property.‖ The second motion argued
that police had insufficient cause to detain and search defendant and his vehicle
parked in the lot of the Circle K convenience store. The trial court denied both
motions and on appeal defendant asserts error in both rulings.



                                         30
     Preliminarily, while acknowledging we have not squarely ruled on the
question, the Attorney General contends the exclusionary rule should not apply to
the penalty phase of a capital trial when the prosecutor seeks to introduce section
190.3, factor (b) evidence. (See People v. McKinnon (2011) 52 Cal.4th 610, 684,
fn. 45 [assuming availability of exclusionary remedy]; People v. Huggins (2006)
38 Cal.4th 175, 241 [same].) She argues the exclusionary rule has little deterrent
value at the penalty phase, the purpose of which is ―to enable the jury to make an
individualized determination of the appropriate penalty based on the character of
the defendant and the circumstances of the crime.‖ (People v. Cowan (2010) 50
Cal.4th 401, 499.) That is, she asserts law enforcement would not likely be
deterred from conducting unreasonable searches and seizures because of the
remote possibility the evidence could not be used during the penalty phase in an
unrelated prosecution occurring potentially years later, and any limited deterrent
value is outweighed by the societal costs of exclusion of the evidence and the
resultant incomplete picture of the defendant‘s criminal activities.
     Given the prosecution‘s failure to litigate these issues below, we decline to
resolve the question whether the exclusionary remedy should remain available for
Fourth Amendment violations in connection with factor (b) evidence presented in
the penalty phase of a capital trial; we assume its availability for purposes of this
appeal and proceed to address the parties‘ substantive arguments.

                a. Strawberry Street incident
     The record of the hearing on defendant‘s motion to suppress evidence reveals
the following: On the morning of February 19, 1987, police executed a warrant to
search an apartment located at 101 Strawberry Street in Visalia. Defendant was
present in the apartment at the time of the search. Neither defendant nor his
vehicle, a black 1974 Monte Carlo which was parked on the street in front of the



                                          31
apartment building, was named in the warrant. A police officer searched
defendant‘s person and recovered car keys from his left front pants pocket. The
officer had several times previously seen defendant sitting in the driver‘s seat of
the Monte Carlo, although he had never seen him driving it, and had never seen
anyone else in or around the car. Police determined that the keys fit the Monte
Carlo and found a small .45-caliber derringer under the driver‘s seat. When asked,
through an interpreter, whether he owned any vehicles, defendant replied he did
not; he specifically denied the Monte Carlo belonged to him. The trial court ruled
that defendant lacked standing to contest the search of the Monte Carlo because he
claimed no ownership or right to possession of it.
        Defendant contends the trial court erred in concluding he lacked standing to
contest the search. He further contends the search of the Monte Carlo was beyond
the scope of the warrant and was otherwise done without probable cause.
        ―In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether
the law as applied has been violated. [Citation.] We review the court‘s resolution
of the factual inquiry under the deferential substantial evidence standard. Whether
the relevant law applies to the facts is a mixed question of law and fact that is
subject to independent review.‖ (People v. Thompson (2010) 49 Cal.4th 79, 111–
112.)
        ―[C]apacity to claim the protection of the Fourth Amendment depends . . .
upon whether the person who claims the protection of the Amendment has a
legitimate expectation of privacy in the invaded place.‖ (Rakas v. Illinois (1978)
439 U.S. 128, 143.) A legitimate expectation of privacy in a vehicle requires a
showing of a property or possessory interest therein. (Id. at p. 148.) Defendant
argues that the fact he possessed the keys to the Monte Carlo raised an inference
he lawfully possessed the car, even if it did not belong to him, and that as a

                                            32
consequence he had a legitimate expectation of privacy in the car‘s contents. As
he observes, the prosecution itself at the suppression hearing urged the court to
draw the inference defendant possessed the gun based on his possession of the car
it was found in. Defendant argued below, and renews the argument here, that the
prosecution cannot have it both ways. That is, the prosecution cannot contend
both that defendant possessed the car in order to link him to the gun found inside
it, and that he lacked a possessory interest in it in order to defeat his claim to a
legitimate expectation of privacy for purposes of challenging the warrantless
search of the car.
     Defendant is correct. The record of the suppression hearing does not support
the trial court‘s implicit finding that defendant disclaimed a possessory interest in
the car merely by virtue of denying ownership of it; the record does not reflect that
defendant was ever asked, for example, whether he had borrowed the car with its
owner‘s permission, and there is no evidence defendant was not legitimately in
possession of the car when police searched it. (See People v. Leonard (1987) 197
Cal.App.3d 235, 239 [one who has owner‘s permission to use vehicle and is
exercising control over it has a legitimate expectation of privacy in it].) This case
is therefore distinguishable from People v. Dasilva (1989) 207 Cal.App.3d 43, 49,
which the trial court cited in its ruling that defendant lacked standing to challenge
the search. In that case, the defendant had voluntarily consented to the search of
the trunk of a car, but disclaimed ownership or possession of certain containers
found in the trunk. Although the defendant in Dasilva did not own, but merely
possessed, the car, the parties did not dispute his standing to contest the search of
the trunk. In upholding the search of the trunk on a consent theory, the Dasilva
court implicitly found the defendant‘s possessory interest in the car supported a
finding he had a legitimate expectation of privacy in the trunk. At the same time,
the court concluded the defendant‘s disclaimer of ownership or possession of the

                                           33
containers found in the trunk precluded him from challenging the admission of
their contents. (Ibid.) Here, as noted, the evidence presented at the suppression
hearing failed to support an inference that defendant lacked a possessory, as
distinct from an ownership, interest in the Monte Carlo.
     As to whether the search of the Monte Carlo was proper because it was
within the scope of the warrant or supported by probable cause, the Attorney
General concedes the Monte Carlo was not on the property—the Strawberry Street
residence—described in the warrant. She nonetheless contends that, given its
close proximity to the Strawberry Street residence and defendant‘s statement that
the vehicle was not his, which she asserts demonstrated a lack of candor, it was
reasonable for the officers to enter the vehicle to determine if it was associated
with the residence. The contention lacks merit. Defendant‘s truthful statement
that the Monte Carlo did not belong to him cannot reasonably be equated to a lack
of candor justifying a warrantless search. As defendant reasons, the fact he
obviously had possession of the vehicle—the keys having been found in his
pocket—suggests that, rather than trying to mislead officers with an easily
disprovable lie, he understood their question to refer to ownership, not possession.
And the Attorney General cites no authority for the proposition that a vehicle‘s
mere proximity to a place designated in a search warrant justifies a search of that
vehicle. We therefore conclude the trial court erred in denying defendant‘s motion
to exclude the evidence of the gun found in the Monte Carlo on Strawberry Street.

               b. Circle K convenience store incident
     The record of the hearing on defendant‘s motion to suppress revealed the
following: About 10:16 p.m. on March 16, 1989, Officer Michael Stowe of the
Visalia Police Department saw a van parked on the north side of the Circle K store
parking lot on Old Dinuba Boulevard in a poorly lit area lacking demarcated



                                          34
parking spots. The store had lights on under an awning on the west side of the
building; the vehicle was six to eight feet from the store, pointed west toward the
front of the store. Officer Stowe was aware of thefts from the store ―where
subjects [would] exit to the north and sometimes leave in vehicles.‖ Because of
his knowledge of prior thefts and the fact the van was parked in a less well-lit part
of the lot and not in the marked spaces immediately next to the store, he stopped to
investigate the vehicle and its occupants, believing a robbery might be in progress.
Officer Stowe pulled in behind the vehicle and approached defendant, the only
occupant, who was seated in the driver‘s seat. Defendant told Stowe he did not
have identification, but gave him the vehicle registration and explained the van
was owned by his friend‘s uncle. After the officer was unable to confirm
defendant‘s identity using the name he had given the officer, defendant gave the
officer permission to search the van. About that same time, defendant‘s
companion returned from the Circle K carrying a bag, and police questioned him
and ran a database check on him. A second officer who had arrived on the scene
asked store personnel whether defendant‘s companion had stolen anything, and
apparently was told nothing had been stolen. Nonetheless, because defendant had
been unable to produce identification and the car was not his, and for officer
safety, Stowe patted defendant down and in his front right pocket found a wad of
paper that proved to be cash totaling $1,464. Stowe then entered the vehicle and
found a gun on the floorboard to the right side of the driver‘s seat.
     The trial court ruled as follows: (1) defendant was detained within the
meaning of Terry v. Ohio (1968) 392 U.S. 1 until after Officer Stowe concluded
his identification procedure; (2) Stowe had reasonable suspicion to detain
defendant based on the prior robberies at the Circle K and the fact defendant was
parked in a poorly lit section of the parking lot, although spaces were available in
the well-lit section of the lot; (3) Stowe violated defendant‘s Fourth Amendment

                                          35
rights by reaching into his pocket and retrieving cash, when the officer
acknowledged he did not think defendant had a weapon or other contraband in the
pocket, necessitating suppression of the cash; and (4) the subsequent search of the
vehicle and discovery of the weapon in plain sight were lawful based on
defendant‘s consent. Defendant contends the trial court erred, both in finding
reasonable suspicion to detain him and in finding lawful consent to search the
vehicle immediately after the officer had illegally searched defendant‘s person.
     The Fourth Amendment protects against unreasonable searches and seizures.
(U.S. Const., 4th Amend.; Terry v. Ohio, supra, 392 U.S. at p. 8.) ―A detention is
reasonable under the Fourth Amendment when the detaining officer can point to
specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may
be involved in criminal activity.‖ (People v. Souza (1994) 9 Cal.4th 224, 231.)
Such reasonable suspicion cannot be based solely on factors unrelated to the
defendant, such as criminal activity in the area. (See Illinois v. Wardlow (2000)
528 U.S. 119, 124 [individual‘s presence in an area of expected criminal activity
not alone sufficient to support reasonable suspicion he or she is committing a
crime].)
     We agree with defendant that his mere presence in a car legally parked on the
less illuminated north side of the convenience store, in an area without demarcated
parking spaces at a time when other parking spaces were available, did not justify
his detention. The circumstance that Officer Stowe was aware of prior robberies
at the store and that in some instances robbers had exited the parking lot on the
north side of the building, without more, did not raise a reasonable suspicion that
defendant was engaged in criminal activity. As noted (see Illinois v. Wardlow,
supra, 528 U.S. at p. 124), a subject‘s presence in an area of expected criminal
activity does not alone support a reasonable suspicion he or she is committing a

                                           36
crime. No evidence was presented at the suppression hearing, for example, of the
overall frequency of thefts at the Circle K or that robbers did not also commonly
park on, or exit via, the better-illuminated west side of the store. Officer Stowe
described no furtive movement or other behavior by defendant suggestive of
criminal activity. At the point when the officer initiated the identification
procedure, therefore, he had no factual basis for a reasonable suspicion, as
opposed to a mere hunch, that defendant was then engaged in any criminal
activity, and a hunch is an inadequate basis for a detention. (People v. Wells
(2006) 38 Cal.4th 1078, 1083; In re Tony C. (1978) 21 Cal.3d 888, 894; see
People v. Perrusquia (2007) 150 Cal.App.4th 228, 231–234 [no reasonable
suspicion where the defendant, in an idling car in a parking spot in a high-crime
area, got out of the car upon observing a police officer and refused the officer‘s
request to allow a patdown search].) The detention being unlawful, the subsequent
searches of defendant‘s person and the car he had been sitting in were also
unlawful. The trial court thus properly excluded the evidence of the cash found on
defendant‘s person, but erred in admitting evidence of the gun found in the van.
(Perrusquia, at p. 234; see Florida v. Royer (1983) 460 U.S. 491, 501 [illegality of
detention tainted and invalidated subsequent consent to search]; People v.
Zamudio (2008) 43 Cal.4th 327, 341.)

               c. Prejudice
     The error, however, was harmless under any standard. (See People v. Jones
(2003) 29 Cal.4th 1229, 1264, & fn. 11.) In addition to the evidence of the cold
and calculated nature of the capital crime, the jury heard abundant other
aggravating evidence, consisting of defendant‘s two felony convictions and
incidents of unadjudicated violent criminal conduct, including his shooting at a
car, his participation in the Boas Minnow Farm robbery, and his possession of a



                                          37
gun on another occasion, when arrested at the Arrow Motel. It also heard
evidence of his role in the kidnapping and sexual abuse of Rosa. In contrast, the
erroneously admitted evidence of gun possession, although the subject of
comment by the prosecutor during his closing argument, was relatively mild.
Defendant points out that the jury deliberated over the course of four days, even
though the evidentiary portion of the penalty phase encompassed only two partial
days of trial and a brief part of a third day; the absolute length of deliberations, he
contends, and their length relative to the time spent on the presentation of evidence
signify that the jury found this to be a close case, in turn increasing the chances
that any penalty phase error was prejudicial.
     We are not persuaded. Although the length of time consumed in presenting
the penalty phase evidence may not have been great relative to the amount of time
the jury spent deliberating, the number of incidents reflected in the evidence, even
excluding the gun possession incidents we have determined should have been
excluded, and the quantity of mitigating evidence were substantial. That the jury
sent the judge a note inquiring about the practical effect of a sentence of life
without parole surely indicated it was performing its duty to fairly consider both
penalties, but without more does not strongly suggest it found this to be such a
close case that the admission of the two gun incidents under factor (b) prejudiced
defendant.
     In sum, although we conclude the admission of evidence of the guns found in
the car parked outside 101 Strawberry Street and in the van parked outside the
Circle K violated defendant‘s Fourth Amendment rights, the error was harmless
under any standard.




                                          38
           2. Exclusion of evidence that defendant’s father kidnapped and raped
               defendant’s mother in the same manner that he kidnapped and
               raped Rosa B.
     ―[T]he Eighth and Fourteenth Amendments require that the sentencer‖ in a
capital case ―not be precluded from considering, as a mitigating factor, any aspect
of a defendant‘s character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death.‖ (Lockett v.
Ohio (1978) 438 U.S. 586, 604; see Skipper v. South Carolina (1986) 476 U.S. 1,
4–8.) In addition, due process requires that a defendant be allowed the
opportunity to explain aggravating evidence. (Gardner v. Florida (1977) 430 U.S.
349, 362.) Defendant contends the trial court denied him these constitutional
protections by excluding, on the prosecutor‘s Evidence Code section 352
objection, evidence that his father kidnapped and raped defendant‘s mother in the
same way he kidnapped and raped Rosa B. As we shall explain, the trial court‘s
ruling did not violate defendant‘s constitutional rights.
     During the defense case in mitigation in the penalty phase, defense counsel
called Maria de Jesus Casares de Reyna, defendant‘s maternal aunt, as a witness.
Defense counsel asked her if she knew how defendant‘s mother came to marry his
father. The prosecutor objected under Evidence Code section 352 that the
question sought information going beyond possible trauma to defendant. Defense
counsel explained that the witness would testify the father kidnapped defendant‘s
mother the same way that Rosa B. was kidnapped, at about the same age, and
continued to beat her from that point on. Counsel contended the testimony would
be foundational, ―just to kind of set the stage for the type of man [the father] was
and the abuse he continued to pour on the mother.‖ The prosecutor rejoined, ―I
think Counsel has not only set the stage, but he has populated it thoroughly with
witnesses who all know how bad the man was.‖ The court sustained the objection,
agreeing with the prosecutor that the jury knew defendant‘s father was a cruel and


                                          39
sadistic man who mistreated his family and noting defendant would not have been
a percipient witness to the abduction and rape.
     Defendant contends the proffered testimony was relevant mitigating evidence
and not cumulative or unduly time consuming. He argues the evidence showed
the torturous environment he was born into and the duration of the abuse to which
he was both a witness and a victim. Even if not consciously remembered, he
contends, early childhood trauma may have ― ‗catastrophic and permanent
effects‘ ‖ on its survivors, and the proffered evidence would have ―strongly
suggested‖ his mother was subject to abuse during defendant‘s in utero
development and was impaired as a caregiver as a result of the continuing abuse.
Finally, he contends, the evidence was relevant to rebut the prosecutor‘s
insinuation that the defense had portrayed defendant‘s father as more evil than he
really was, to show the utter dominance defendant‘s father exerted over the family
and thus to support the duress defense, and, even if the jury believed defendant
participated voluntarily in raping Rosa, to lessen the impact of this evidence by
showing that violent sexual abuse of women was modeled by his father.
     We disagree with defendant‘s contention that counsel‘s statement that
Casares de Reyna‘s proffered testimony was relevant to show the duration and
form of the father‘s victimization of defendant‘s mother sufficed to put the court
on notice that the evidence was also relevant to prove his mother was impaired as
a caregiver, or that defendant‘s actions with respect to Rosa reflected the father‘s
―modeling‖ of similar behavior. Because defendant did not adequately articulate
these theories of relevance to the trial court, he may not predicate on them an
appellate claim of error in the exclusion of the evidence. (Evid. Code, § 354.)
Since the prosecutor‘s suggestion that the defense may have portrayed the father
as more evil than he actually was occurred during closing argument, the court in



                                         40
making its ruling had no basis on which to assess its relevance as rebuttal to that
suggestion.
     In any event, the trial court did not abuse its discretion in excluding the
proffered evidence. As the Attorney General observes, by the time defendant
proffered the testimony of Casares de Reyna, the jury had heard several family
members testify regarding the father‘s extensive abuse of defendant, his mother,
and other family members, as well as Dr. Blak‘s expert opinion regarding the
effects of that abuse on defendant. Defendant‘s younger sister, Maria Delores
Lupercio Casares, testified that their father used to hit defendant ―a lot,‖ and
physically hurt or hit her mother and all of her siblings. Defendant‘s cousin
Antonio Navarro Lupercio testified that he saw defendant‘s father physically
abuse all members of the family and beat defendant to the point of
unconsciousness, and that defendant was ―very much‖ afraid of his father.
Defendant‘s uncle Alfredo Navarro testified he had often seen defendant‘s father
strike defendant with pieces of wood, and defendant appeared to be very much
afraid of his father. Finally, defendant cites nothing in the record before the trial
court supporting an inference his mother‘s caregiving was negatively affected by
the abuse, and we will not assume that to have necessarily been the case; hence,
defendant‘s contention the proffered evidence would have been relevant to support
such an inference fails as speculative and for lack of foundation.

           3. Admission of defendant’s juvenile misconduct in aggravation
       Defendant contends the admission of evidence of his participation in the
kidnapping and rape of Rosa B. when he was 16 years old violated his federal
constitutional rights to unanimous jury findings of guilt beyond a reasonable doubt
on all elements increasing his sentence, to due process and equal protection, and to
a reliable penalty determination proportionate to his culpability. He relies on the



                                          41
United States Supreme Court‘s decision in Roper v. Simmons (2005) 543 U.S. 551,
574 (Roper), which held that, because of the differences in maturity and judgment
between adult and juvenile offenders, death is a disproportionate penalty for
crimes committed by a juvenile defendant. He also contends that the circumstance
that California law does not permit the use of adjudicated juvenile misconduct as
section 190.3, factor (c) evidence in the penalty phase of a capital trial (People v.
Lewis (2008) 43 Cal.4th 415, 530) renders the use of unadjudicated juvenile
misconduct as section 190.3, factor (b) evidence a violation of due process and
equal protection. Defendant acknowledges we have held, to the contrary, that
nothing in the death penalty law precludes the use of unadjudicated juvenile
misconduct as an aggravating factor under section 190.3, factor (b), but asks us to
reconsider that conclusion in light of Roper. His argument fails to persuade us,
and we reaffirm our previous holdings on the point. (E.g., People v. Bivert (2011)
52 Cal.4th 96, 122.)

            4. Sufficiency of factor (b) evidence
     Section 190.3, factor (b) allows the trier of fact, during the penalty phase, to
consider evidence of ―[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.‖ Defendant contends the trial
court erred in admitting evidence of his prior unadjudicated criminal conduct
under section 190.3, factor (b), because each instance of misconduct was either
legally or factually insufficient to qualify as factor (b) evidence. He contends
these errors rendered his penalty trial unfair and necessitates reversal of his death
sentence.




                                          42
     Preliminarily, as the Attorney General contends, defendant forfeited his
contentions by failing to raise them in the trial court. As we shall see, however,
even had the contentions not been forfeited, they lack merit.

               a. Incidents involving Rosa B.
     In its notice of aggravation, the prosecution indicated it would try to prove
that defendant participated in the ―kidnapping and repeated rapes of 14 year old
Rosa [B.]‖ Defendant moved in limine under People v. Phillips (1985) 41 Cal.3d
29, 68, to exclude the incidents as supported by insufficient evidence, in light of
his defense that his father forced him to engage in the kidnapping and rapes with
threats of physical harm. The prosecution opposed the motion, arguing Rosa‘s
account reflected defendant acted with his father and his claim of coercion was
one the jury might choose to disbelieve. Trial counsel later withdrew the motion
because, based on his reexamination of Rosa‘s original statements to law
enforcement, he believed sufficient evidence supported presentation of the issue to
the jury. In her testimony before the jury, however, Rosa repeatedly asserted that
defendant‘s father forced him to assist in the kidnapping and to have sexual
relations with her, and that defendant did not engage in that behavior except under
his father‘s threat of force. Trial counsel later moved to modify the verdict under
section 190.4, subdivision (e), claiming, among other things, the evidence was
uncontroverted that defendant was forced to participate in the offenses against
Rosa. The trial court denied the motion without comment on the Rosa B. incident.
     On appeal, defendant renews his contention the trial court erred in admitting
the evidence. He argues that the penalty phase jury should not be permitted to
consider an uncharged crime as an aggravating factor ―unless a ‗ ―rational trier of
fact could have found the essential elements of the crime beyond a reasonable




                                         43
doubt.‖ ‘ ‖ This standard was not met, he asserts, because the evidence showed he
had a complete defense—that of duress.
     Although the absence of written jury findings in the penalty phase means the
record does not reveal whether jurors ultimately found true individual aggravating
incidents as alleged and argued by the prosecution under factor (b) (see People v.
Lewis, supra, 43 Cal.4th at p. 533 [no constitutional requirement of written
findings regarding aggravating factors]), if the record contains insufficient
evidence to support an aggravating factor this court must ―presume that at least
one did so. Otherwise, we would run an unacceptable risk of rejecting a
potentially meritorious claim by gratuitously denying the existence of its factual
predicate.‖ (People v. Clair (1992) 2 Cal.4th 629, 680.) Thus, error in admitting
insufficiently supported aggravating incidents is not necessarily rendered harmless
by instructing jurors not to consider the incidents unless they find them proved
beyond a reasonable doubt.
     Here, however, because a rational juror could have found from the
prosecution‘s evidence, taken as a whole, that defendant committed the alleged
offenses, the trial court did not err in admitting the evidence. Rosa testified that,
when she was about 12 years old, defendant and his father, mother, uncle, and at
least two other family members—some of them armed—came to her sister‘s house
and forcibly took her to defendant‘s father‘s ranch, where she was held for about
five months. During that time, defendant repeatedly had sexual intercourse with
her, each time at his father‘s direction. Defendant never physically hurt her, and
she participated in sex with him because his father threatened to kill her. When
she asked defendant why he did not defend her, he told her his father would kill
him. On several occasions she heard his father threaten to kill him if he did not do
as he was told. Rosa acknowledged that several months before the abduction,
defendant had asked her to be his girlfriend and she had declined, and that

                                          44
defendant‘s father had told her, several times, she was going to be his daughter-in-
law. Importantly, Detective Pinon testified in rebuttal that when he interviewed
Rosa before trial, she described the sexual assaults she had endured without telling
him that defendant‘s father had been present at all times or that he had forced
defendant to assault her, although she did say she had sex with defendant out of
fear because defendant‘s father had threatened to kill her if she refused. She also
told Detective Pinon defendant‘s father threatened her on a daily basis and
threatened to kill her if she left.
     The prosecutor argued to the jury that, although defendant‘s father was a
―palpably evil man‖ who had probably instigated the kidnapping and assaults,
defendant had nevertheless acted in concert with his father to some degree, citing
the evidence that, before the kidnapping, defendant had expressed his affinity for
Rosa by asking her to be his girlfriend, and never warned her of the danger she
faced when she declined. The prosecutor also expressed skepticism, given the
sheer number of times defendant sexually assaulted Rosa, that he did so on each
occasion only because his father ordered or threatened him.
     Defendant contends the uncontroverted facts showed that he acted
involuntarily, under duress, and that both he and Rosa were the victims of his
father‘s violent, sadistic conduct. As such, he argues, the incident actually
militated in favor of a lesser penalty and could not constitutionally be used in
aggravation. He likens his case to Beam v. Paskett (9th Cir. 1993) 3 F.3d 1301,
disapproved on another ground in Lambright v. Stewart (9th Cir. 1999) 191 F.3d
1181, where the federal Court of Appeals granted habeas corpus relief under the
Eighth and Fourteenth Amendments based in part on the state sentencing court‘s
erroneous consideration of evidence that the defendant had a history of deviant
sexual behavior and abnormal sexual relationships, when in fact the defendant was
himself a victim of gross sexual abuse at the hands of his father. (3 F.3d at p.

                                         45
1308 & fn. 6.) We find Beam inapposite. Unlike in this case, the sexual behavior
erroneously considered there was nonviolent and either consensual or involuntary
on the defendant‘s part. Nor has defendant demonstrated he acted at all times
under such duress that no reasonable fact finder could have found the essential
elements of an offense against Rosa. ―The defense of duress is available to
defendants who commit crimes, except murder, ‗under threats or menaces
sufficient to show that they had reasonable cause to and did believe their lives
would be endangered if they refused.‘ ‖ (People v. Wilson (2005) 36 Cal.4th 309,
331.) ―Because the defense of duress requires a reasonable belief that threats to
the defendant‘s life . . . are both imminent and immediate at the time the crime is
committed [citations], threats of future danger are inadequate to support the
defense.‖ (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100; see People v.
Lo Cicero (1969) 71 Cal.2d 1186, 1191.)7 Given the length of Rosa‘s ordeal and
the frequency of the sexual assaults she endured, along with the lack of specific
evidence that defendant‘s father in every instance threatened defendant‘s life if he

7       Defendant urges that one may make out a complete defense of duress by
showing fear of great bodily harm falling short of a fear of death, citing People v.
Perez (1973) 9 Cal.3d 651, 657 (―Although a number of cases in this state have
held that the fear [delineated in section 26] must literally be of death, People v.
Otis[ (1959)] 174 Cal.App.2d 119, 124 [344 P.2d 342], suggests that the fine
distinction between fear of danger to life and fear of great bodily harm is
unrealistic.‖). Perez‘s comment may reflect a recognition that a threat to inflict
great bodily harm implies, at least in some circumstances, a readiness to use force
sufficient to threaten one‘s very life as well. Many decisions, accordingly, focus
not on whether an explicit threat to life is present but rather on the requirement
that the threat be immediate, as opposed to a threat of future violence. (E.g.,
People v. Perez, supra, at pp. 657–658.) We need not here resolve any conflict in
the decisions because the testimony did not specifically link defendant‘s father‘s
threats with particular assaults. In other words, the defense evidence failed to so
conclusively establish the immediacy of the threats as to take the Rosa B. incident
out of section 190.3, factor (b).



                                         46
failed to assault her as ordered, as well as her failure to mention to Detective Pinon
that defendant at all times acted under threat of death from his father, a reasonable
fact finder could have concluded the evidence supported a finding defendant
committed the essential elements of one or more offenses against her. The trial
court therefore did not err in submitting the evidence to the jury under section
190.3, factor (b). Doing so did not preclude jurors from according the evidence
whatever mitigating weight they may have felt it warranted.

               b. Shooting at moving vehicle
     Defendant next contends the trial court erred in submitting to the jury under
section 190.3, factor (b) evidence of an incident in which he shot at an occupied
vehicle moving through a parking lot in Tulare. Defense counsel filed and then
withdrew a pretrial motion to exclude the evidence under People v. Phillips,
supra, 41 Cal.3d at page 68, while objecting to any use of the term ―attempted
murder‖ to describe the incident. The prosecutor conceded he lacked evidence
defendant entertained a specific intent to kill anyone in the incident, and agreed
not to use the term. Instead, he stated, he would describe the act as an assault with
a deadly weapon or shooting at an occupied vehicle; no reference to attempted
murder was made in the jury‘s presence.
     The prosecution called Tulare Police Officers Rush Mayberry and Thomas
Munoz to testify regarding the incident. Mayberry testified that, after midnight on
August 8, 1979, he was parked facing north at the intersection of Pratt Street and
Inyo Avenue, across the street from a shopping center. He observed three
vehicles—two parked and a white one moving—in the shopping center parking
lot. As the white car passed the two parked cars, defendant went to the back seat
of one of them, retrieved a rifle, and fired twice at the passing car from a distance
of about 50 feet. The shots left a dent in the lower part of the car‘s trunk and a



                                          47
second dent in the left hand corner of the rear bumper. Mayberry responded to the
scene and detained defendant and two others. He retrieved a loaded rifle from the
back seat of one of the cars.
     Officer Munoz testified he acted as the interpreter for the detective who
interviewed defendant the following morning. In that interview, defendant told
police he had been drinking at the time of the incident and had acted in self-
defense. Before he shot at the white car, it had driven by three times. The people
in the car were calling him ―wetback‖ and ―son of a bitch‖ and making threats of
bodily harm. After one of the threats, one of the people in the car got out, walked
up to defendant and told him, ―I have a gun, and I can kill you if I want to.‖
Defendant then took a rifle from the trunk of his car, placed it in the front seat, and
waited with the people in the parked car with whom he had been speaking. On the
white car‘s final pass, defendant saw one of its occupants gesture for him to come
to the vehicle, and defendant assumed he wanted a confrontation. Defendant then
shot at the moving car, aiming at the tires. He believed the people in it had a gun.
     As he did in connection with evidence of the Rosa B. incident, defendant
contends the evidence should have been excluded because a rational trier of fact
could not find beyond a reasonable doubt it demonstrated a crime had been
committed. He notes the prosecutor presented no evidence contradicting his self-
defense justification and even conceded there was no evidence defendant was
trying to kill the victims. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064–
1065 [defense of self-defense is established when the defendant has an honest and
reasonable belief that bodily injury is about to be inflicted on him, provided he
uses force no greater than that reasonable under the circumstances].) But the state
of the evidence did not obligate jurors to accept defendant‘s self-serving version of
events. As the Attorney General reasons, the testimony of the sole percipient
witness did not suggest that any of the occupants of the white car displayed or

                                          48
otherwise used a weapon, and defendant himself told the investigating officer he
never saw a gun. Moreover, when defendant shot at the car, it was traveling away
from him and thus, inferably, did not present an imminent threat. The question
whether defendant acted in self-defense was therefore one for the jury, and the
court did not err in admitting the evidence.

                c. Incidents of gun possession
     By means of pretrial motions in limine, defendant unsuccessfully sought to
preclude the prosecution from introducing, under section 190.3, factor (b),
evidence that on several occasions he illegally possessed firearms, contending
such possession was unrelated to any actual violence or threat of violence. The
trial court concluded that if the prosecution could establish defendant actually or
constructively possessed the weapons, ―an assumption there was an implied threat
of violence‖ would follow. The court reasoned: ―I am partial to the district
attorney‘s argument that if you look at the totality of the circumstances of the
evidence the jury will hear in this case regarding Casares, . . . if they can establish
that he had actual or constructive possession, gives rise to an assumption there was
an implied threat of violence there. . . . [¶] Handguns or most handguns, unless
they‘re clearly for competition like a target pistol, have one purpose. That is either
offensive use or defensive use to shoot at somebody. Carrying one around in a car
in a position where this gun was found I think can give rise to a reasonable
assumption that its purpose involved implied use of violence in the future, some
undetermined time point. [¶] Again, it may be a question of fact whether the jury
accepts that. . . . I don‘t think simply allowing that evidence to come before the
jury, if it gets to a penalty phase, make it per se evidence that the jury has to accept
it. I still think that they have a function to decide whether this is a factor that they
should consider in the penalty phase.‖ The court ruled the evidence admissible,



                                           49
noting the defense could argue the inferences it wished the jury to draw from the
evidence.
     Defendant contends the court erred by submitting to the jury the issue of
whether the gun possession incidents constituted implied threats to use force or
violence rather than deciding the issue itself. (See § 190.3, factor (b).) He also
contends the court erred in concluding the jury could consider illegal weapon
possession as constituting an implied threat to use violence at some ―undetermined
time point‖ in the future, rather than requiring it to find that the weapons were
intended for some imminent or actual threat. Finally, he contends that, in addition
to violating state law, the introduction of the evidence infringed the Eighth and
Fourteenth Amendments to the federal Constitution by undermining the reliability
of the jury‘s death verdict and his state law liberty interests.
     Preliminarily, because we have concluded the trial court erred in denying
defendant‘s motion to suppress evidence of the Strawberry Street and Circle K
incidents, we need not address his contentions regarding the admissibility of those
incidents under section 190.3, factor (b). Our discussion therefore pertains only to
his contentions respecting the Arrow Motel gun possession incident.
     Defendant is correct that ―[p]ossession of a firearm is not, in every
circumstance, an act committed with actual or implied force or violence‖ (People
v. Bacon (2010) 50 Cal.4th 1082, 1127 (Bacon)), and although the question
whether particular acts occurred is a factual matter for the jury, ―the
characterization of those acts as involving an express or implied use of force or
violence, or the threat thereof, [is] a legal matter properly decided by the court‖
(People v. Nakahara (2003) 30 Cal.4th 705, 720), whose ruling admitting such
evidence is reviewed for abuse of discretion (Bacon, supra, at p. 1127). We
disagree, however, with the premise of defendant‘s argument. As we read the
pertinent transcripts, the trial court did not fail to determine the legal question

                                           50
whether the incidents reflected an implied threat to use force or violence. The
court stated: ―I am partial to the district attorney‘s argument that if you look at the
totality of the circumstances of the evidence the jury will hear in this case
regarding Casares, his possession, if they can establish that he had actual or
constructive possession, gives rise to an assumption there was an implied threat of
violence there. That would be my position on it.‖ The court‘s statements that
admission of the incidents did not make them ―evidence that the jury has to
accept‖ and that ―they have a function to decide whether this is a factor that they
should consider in the penalty phase‖ reflected its understanding that the jury
would determine whether in fact defendant constructively possessed the guns and,
if so, what aggravating weight to give the incidents. Notably, nothing in the
court‘s instructions told the jury to determine whether such constructive
possession involved an express or implied use of force or violence, or a threat
thereof. The court did not abuse its discretion.
     Nor did the court abuse its discretion in submitting the incident to the jury
based on an assumption the weapon would be used in an implicitly threatening
manner at some undetermined future time rather than excluding the incident for
lack of evidence of an imminent express or implied threat of violence. Defendant
cites no decision of this court imposing such a requirement, but asks us to
introduce such a ―limiting principle‖ in our section 190.3, factor (b) analysis of
noncustodial criminal weapons possession charges. We decline to do so and
adhere to our reasoning in Bacon, supra, 50 Cal.4th at page 1127, that evidence of
defendant‘s illegal possession of a weapon was sufficient to support an inference
his possession constituted an implied threat of violence. (See People v. Michaels
(2002) 28 Cal.4th 486, 536 (Michaels).) Our rejection of defendant‘s state-law
challenges to the admissibility of the incident dictates rejection as well of his
derivative Eighth and Fourteenth Amendment challenges.

                                          51
           5. Constitutionality of lying-in-wait as death-eligibility criterion
       As stated, the lying-in-wait special circumstance requires proof of an
intentional murder committed under circumstances that include (1) concealment of
purpose, (2) a substantial period of watching and waiting for an opportune time to
act, and, (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage. (§ 190.2, subd. (a)(15); People v. Bonilla (2007) 41
Cal.4th 313, 330.) Concealment of the killer‘s presence, as distinct from his or her
purpose, is not required (Carpenter, supra, 15 Cal.4th at p. 388), and the period of
watching and waiting ―need not continue for any particular length ‗ ―of time
provided that its duration is such as to show a state of mind equivalent to
premeditation or deliberation.‖ ‘ ‖ (Stevens, supra, 41 Cal.4th at p. 202, quoting
Sims, supra, 5 Cal.4th at pp. 433–434.)
       Defendant contends that, as thus construed by this court, the lying-in-wait
special circumstance violates the Eighth Amendment by failing to narrow the class
of persons eligible for the death penalty and failing to provide a ― ‗ ―meaningful
basis for distinguishing the few cases in which [the death penalty] is imposed from
the many cases in which it is not.‖ ‘ ‖ (Godfrey v. Georgia (1980) 446 U.S. 420,
427, quoting Gregg v. Georgia (1976) 428 U.S. 153, 188.). Specifically, he urges
that our ―expansive conception‖ of the first two elements of the special
circumstance—concealment of purpose and a substantial period of watching and
waiting—results in its application to an ―enormous‖ class of first degree murders.
Indeed, he contends our construction of the special circumstance is
indistinguishable from premeditated and deliberate murder, and from murder on a
lying-in-wait theory.
       We have repeatedly rejected his contentions. As we said in People v.
Carasi (2008) 44 Cal.4th 1263, 1310 (Carasi), ―[T]he lying-in-wait special
circumstance . . . is limited to intentional murders that involve a concealment of


                                          52
purpose and a meaningful period of watching and waiting for an opportune time to
attack, followed by a surprise lethal attack on an unsuspecting victim from a
position of advantage.‖ (See Morales, supra, 48 Cal.3d at p. 557.) Defendant
acknowledges we have differentiated between the lying-in-wait special
circumstance and lying in wait as a theory of first degree murder on the bases that
the special circumstance requires an intent to kill (unlike first degree murder by
lying in wait, which requires only a wanton and reckless intent to inflict injury
likely to cause death) and requires that the murder be committed ―while‖ lying in
wait, that is, within a continuous flow of events after the concealment and
watching and waiting end. (Michaels, supra, 28 Cal.4th at p. 517; Morales, supra,
at p. 558.) Contrary to defendant‘s argument, the lying-in-wait special
circumstance is not coextensive with either theory of first degree murder; it does
not apply to all murders and is not constitutionally infirm. (Streeter, supra, 54
Cal.4th at p. 253; see People v. Johnson (Jan. ___, 2016, S178272) __ Cal.4th ___,
___–___ [pp. 42–43].) We reject defendant‘s contentions that the lying-in-wait
special circumstance fails to meaningfully distinguish death-eligible defendants
from those not death-eligible and is overbroad as applied to this case.
     Acknowledging that this court has repeatedly rejected the argument the
lying-in-wait special circumstance unconstitutionally fails to provide a meaningful
basis for distinguishing the few cases in which the death penalty is imposed from
the many in which it is not (see Furman v. Georgia (1972) 408 U.S. 238, 313
(conc. opn. of White, J.); Carasi, supra, 44 Cal.4th at p. 1310), defendant contends
the special circumstance violates the Eighth Amendment for other reasons. It has,
he argues, become an arbitrary and disproportionate way of selecting those eligible
for death. Specifically, he contends that, because of the ―extraordinarily broad
definition‖ of lying in wait adopted by this court, a large percentage of all murders
are death eligible under this special circumstance alone, resulting in a statistical

                                          53
disparity between the large number of defendants so made eligible for death and
the small number of defendants actually sentenced to die solely because of their
act of lying in wait. Because of this disparity and the absence of a compelling
argument or evidence suggesting that lying in wait is considered among the most
reprehensible forms of murder, he contends, the imposition of the death penalty
based solely on a finding of lying in wait is an unconstitutionally arbitrary and
disproportionate punishment.
     Defendant observes that, in assessing whether a penalty is disproportionate,
the United States Supreme Court has considered ― ‗objective indicia of society‘s
standards, as expressed in legislative enactments and state practice‘ to determine
whether there is a national consensus against the sentencing practice at issue.‖
(Graham v. Florida (2010) 560 U.S. 48, 61.) Drawing on Justice Broussard‘s
concurring and dissenting opinion in People v. Webster (1991) 54 Cal.3d 411,
467–468 (conc. & dis. opn. of Broussard, J.), he contends no such national
consensus supports the lying-in-wait special circumstance. Among the states
imposing the death penalty, he asserts only three, apart from California, treat lying
in wait as a death-eligibility criterion (Colo. Rev. Stat., former § 16-11-103(6)(f);
see now id., § 18-1.3-1201(5)(f); Ind. Code, § 35-50-2-9(b)(3); Mont. Code Ann. §
46-18-303(1)(iv)); of those states, Indiana requires that the defendant be
physically concealed from the victim (see, e.g., Davis v. State (Ind. 1985) 477
N.E.2d 889, 895–896), Montana appears to have applied its lying-in-wait
aggravator only in cases in which the defendant concealed his presence (see, e.g.,
State v. Dawson (1988) 233 Mont. 345, 358 [761 P.2d 352]; Fitzpatrick v. State
(1981) 194 Mont. 310, 332 [638 P.2d 1002]), and in Colorado lying in wait is
understood to include the killer‘s concealment of his presence (see, e.g., People v.
Dunlap (Colo. 1999) 975 P.2d 723, 751). The United States Supreme Court has
found that no national consensus exists where only a handful of states retain a

                                          54
particular capital punishment practice. (Kennedy v. Louisiana (2008) 554 U.S.
407, 426 (Kennedy) [finding it significant that 45 jurisdictions do not allow capital
punishment for child rape]; Atkins v. Virginia (2002) 536 U.S. 304, 313–315
(Atkins) [finding that opposition of 30 states, and unilateral direction of change,
reflect consensus against execution of intellectually disabled defendants]; Enmund
v. Florida (1982) 458 U.S. 782, 789 (Enmund) [noting that Florida was one of
only eight jurisdictions authorizing the death penalty for felony murder
simpliciter].) ―Actual sentencing practices are an important part of the Court‘s
inquiry into consensus.‖ (Graham, supra, at p. 62 [noting that life without
possibility of parole sentences for juvenile nonmurderers are infrequent].) In this
vein, defendant notes that, until this case, we apparently have reviewed only two
death sentences predicated on a sole special circumstance of lying in wait.
(Jurado, supra, 38 Cal.4th 72; Edwards, supra, 54 Cal.3d 787.) Furthermore, the
high court views the number of executions actually carried out as informing
consideration of whether capital punishment for a particular crime ―is regarded as
unacceptable in our society‖ (Kennedy, supra, at p. 433; see id. at p. 425 [noting
infrequency of executing intellectually disabled and juvenile offenders]);
defendant points out that, of the 13 executions carried out in California since
reinstatement of the death penalty in 1978, none involved a sole special
circumstance of lying in wait. Finally, defendant notes that ―consistency in the
direction of change regarding a form of punishment may support a finding of
national consensus either for or against a particular punishment practice.‖ Apart,
however, from reiterating the rarity, among capital punishment jurisdictions, of
lying in wait as a death-eligibility factor, defendant provides no historical
information regarding any change, to or away from, the use of lying in wait for
this purpose.



                                          55
     We find the authorities defendant cites distinguishable from the present case.
Atkins, supra, 536 U.S. 304, Ford v. Wainwright (1986) 477 U.S. 399, 410, and
Roper, supra, 543 U.S. 551, reflect the high court‘s determinations that certain
offenders—the intellectually disabled, the insane, and minors—who share a
characteristic reflecting the degree to which they are capable of acting with
criminal responsibility or appreciating the penal consequences of their criminal
acts are, by virtue of that characteristic, deemed insufficiently culpable to be
subjected to the death penalty under the Eighth and Fourteenth Amendments. The
challenge defendant makes here, of course, relates not to a characteristic of a given
offender or category of offender, but to the lying in wait special circumstance as
California has defined it. Defendant also cites a case (Kennedy, supra, 554 U.S.
407) falling within the category of nonhomicide crimes against the person, not
involving an intent to kill, as to which the high court has determined the death
penalty to be unconstitutionally disproportionate. (Id. at p. 421 [rape of a child];
see Coker v. Georgia (1977) 433 U.S. 584, 592 [imposition of the death penalty
for rape of an adult woman constitutes cruel and unusual punishment under the 8th
and 14th Amends].) Here, of course, defendant has been convicted of the most
serious kind of homicide: first degree murder. Finally, defendant relies on
homicide cases in which the high court has concluded that the degree of a
defendant‘s participation in the crime did not reach the level constitutionally
required to subject him or her to the death penalty. Thus, in Enmund, supra, 458
U.S. at page 798, the court held the Eighth Amendment forbids imposition of the
death penalty for a felony murder on one who neither personally kills, tries to kill,
nor intends to kill; in Tison v. Arizona (1987) 481 U.S. 137, 158, the court
clarified that the Eighth Amendment is satisfied if the defendant was a major
participant in the felony and acted with reckless indifference to human life. Here,



                                          56
apart from contesting his identity as the killer, defendant does not claim his role in
the murder of Sanchez was too minor to satisfy Eighth Amendment requirements.
     In sum, defendant cites no case, and we are aware of none, in which the high
court has held, whether by discerning a national consensus on the issue or through
some other mode of analysis, that a form of murder as defined by a state, when
committed by one with a sufficient degree of participation and without a
characteristic deemed to limit culpability as a matter of law was, per se,
insufficiently aggravated to permit imposition of the death penalty under the
Eighth Amendment. In the absence of further guidance from the high court, we
will not invalidate concealment-of-purpose lying in wait as a special circumstance
rendering a defendant eligible for the death penalty.
     Defendant contends that imposition of the death penalty based on a sole
lying-in-wait special circumstance is disproportionate for another reason:
Although lying-in-wait murder is equivalent to intentional murder, not every
intentional murder is deserving of the death penalty. Thus, in his view, ―[t]he
appropriate question‖ is not simply whether he intentionally killed, but whether
the lying-in-wait special circumstance, as construed by this court, meaningfully
distinguishes between ordinary murder and capital murder in a way that
overcomes what he asserts is California‘s outlier status in terms of national
consensus. In other words, he contends, the federal and state Constitutions require
there to be a qualitative moral difference between lying-in-wait murders and other
murders rendering a person who kills by lying in wait deserving of execution. As
defendant seems to acknowledge, however, this aspect of his argument is closely
intertwined with the oft-rejected narrowing argument discussed above. We are
unpersuaded the asserted breadth of the special circumstance renders it a
disproportionate or unconstitutionally arbitrary punishment for the crimes to
which it applies, either generally or in this case.

                                           57
     Defendant further contends that imposition of the death penalty based on the
lying-in-wait special circumstance constitutes excessive punishment under the
Eighth Amendment because it fails to ―fulfill the two distinct social purposes
served by the death penalty: retribution and deterrence.‖ (Kennedy, supra, 554
U.S. at p. 441.) This aspect of his argument, in substance, merely reframes his
contention that lying in wait as a death-eligibility criterion fails to draw a
qualitative moral distinction with ordinary murder and must be rejected for the
same reason. As the Attorney General observes, ―[m]urder committed by lying in
wait has been ‗anciently regarded . . . as a particularly heinous and repugnant
crime.‘ ‖ (People v. Edelbacher (1989) 47 Cal.3d 983, 1023.)

             6. Constitutionality of the death penalty law
       Finally, defendant challenges the constitutionality of many aspects of
California‘s death penalty law and related instructions under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution. He
acknowledges that our prior decisions have rejected each of his challenges, but
asks that we reconsider our holdings. He fails to persuade us to do so. Thus:
       Section 190.2 does not fail to meaningfully narrow the pool of murderers
eligible for the death penalty. (People v. Bennett (2009) 45 Cal.4th 577, 630;
People v. Stanley (1995) 10 Cal.4th 764, 842–843.)
       Permitting the penalty phase jury to consider the ―circumstances of the
crime‖ within the meaning of section 190.3 does not result in the arbitrary and
capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th
595, 641.)
       The death penalty law is not unconstitutional in failing to require the jury to
find beyond a reasonable doubt that death is the appropriate penalty. (People v.
Gonzales and Solis (2011) 52 Cal.4th 254, 333 [rejecting argument that Blakely v.



                                          58
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and
Apprendi v. New Jersey (2000) 530 U.S. 466, apply to Cal. capital penalty phase
proceedings]; People v. Prieto (2003) 30 Cal.4th 226, 262–263; People v. Blair
(2005) 36 Cal.4th 686, 753 [neither due process clause nor 8th Amend. requires
the jury be instructed it must decide beyond a reasonable doubt that aggravating
factors outweigh mitigating factors].)
       The Sixth, Eighth, and Fourteenth Amendments do not require that the jury
be instructed the state has the burden of proof or persuasion regarding the
existence of any factor in aggravation, whether aggravating circumstances
outweigh mitigating factors, and the appropriateness of the death penalty (or that
there is no burden), or that life imprisonment without parole is presumed to be the
appropriate sentence. (People v. Loy (2011) 52 Cal.4th 46, 78–79; Romero, supra,
44 Cal.4th at p. 429.) As defendant recognizes, we have held that capital
sentencing is unlike other sentencing in that it is largely moral and normative, and
thus not susceptible to burdens of proof or persuasion, and that a capital defendant
is not entitled to an instruction that life is presumed to be the appropriate penalty.
(People v. Lenart (2004) 32 Cal.4th 1107, 1136–1137; People v. Arias (1996) 13
Cal.4th 92, 190.) We reaffirm these decisions.
       We likewise adhere to our view that jury unanimity with respect to
aggravating factors, including that of unadjudicated criminal activity, is not
required. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 458;
People v. Lucas (2014) 60 Cal.4th 153, 333.) The use of the term ―so substantial‖
in CALJIC No. 8.88 is not unconstitutionally vague under the Eighth and
Fourteenth Amendments. (People v. Lopez (2013) 56 Cal.4th 1028, 1083.) The
jury need not be instructed the central determination in the penalty phase is
whether death is the appropriate punishment. (People v. Valdez (2012) 55 Cal.4th
82, 179.) Because the jury was instructed it could impose a death sentence only if

                                          59
it found that aggravating factors outweighed mitigating factors, the converse
instruction—that it should impose a life sentence if it found mitigation outweighed
aggravation—was unnecessary. (People v. Capistrano (2014) 59 Cal.4th 830,
882.) The jury need not be instructed unanimity is not required as to mitigating
factors. (People v. Rogers (2013) 57 Cal.4th 296, 349; cf. Kansas v. Carr (Jan.
20, 2016, Nos. 14–449, 14–450, 14–452) ___ U.S. ___, ___ [2016 U.S. Lexis 845,
*18] [trial court need not instruct that mitigating evidence need not be proved
beyond a reasonable doubt].)
       The lack of a requirement of written jury findings does not violate a capital
defendant‘s right to meaningful appellate review. (People v. Russell (2010) 50
Cal.4th 1228, 1274.) The use of restrictive ―adjectives such as ‗extreme‘ (§ 190.3,
factors (d), (g)) and ‗substantial‘ (id., factor (g))‖ in the list of mitigating factors
did not act as a barrier to the jury‘s consideration of mitigation. (People v. Valdez,
supra, 55 Cal.4th at p. 180.) ―The trial court need not delete factually inapplicable
sentencing factors from the instructions.‖ (Ibid.) Nor need the trial court instruct
the jury that statutory mitigating factors are relevant solely as potential mitigators.
(Hillhouse, supra, 27 Cal.4th at p. 509.)
       Intercase proportionality review is not constitutionally required. (People v.
Merriman (2014) 60 Cal.4th 1, 106.) California‘s death penalty law does not
violate equal protection principles notwithstanding that noncapital defendants are
entitled to certain procedural protections, such as the requirement the sentencer
provide written reasons justifying the sentence, that are not available to capital
defendants. (People v. Banks (2014) 59 Cal.4th 1113, 1208.) California‘s use of
the death penalty does not violate international law, the Eighth or Fourteenth
Amendment, or ―evolving standards of decency.‖ (People v. Suff (2014) 58
Cal.4th 1013, 1079; see People v. DeHoyos (2013) 57 Cal.4th 79, 151.)



                                            60
                             III. DISPOSITION
     The judgment is affirmed.
                                                WERDEGAR, J.


WE CONCUR:


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




                                   61
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Casares
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S025748
Date Filed: February 4, 2016
__________________________________________________________________________________

Court: Superior
County: Tulare
Judge: David L. Allen

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Kathleen M. Scheidel,
Assistant State Public Defender, and Elias Batchelder, Deputy State Public Defender, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Ward A. Campbell, Michael A. Canzoneri and David A. Lowe, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathleen M. Scheidel
Assistant State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

David A. Lowe
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-5682
