Filed 5/28/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S083594
           v.                        )
                                     )
TOMMY ADRIAN TRUJEQUE,               )
                                     )                      Los Angeles County
           Defendant and Appellant.  )                    Super. Ct. No. VA048531
____________________________________)




         In 1999, a jury convicted defendant Tommy Adrian Trujeque of first degree
murder of Max Facundo (Pen. Code, § 187, subd. (a)),1 second degree murder of
Raul Luis Apodaca (§ 187, subd. (a)), and second degree robbery of Ronni
Mandujano and Spartan Burgers restaurant (§ 211). As to all three counts, it found
that defendant personally used a deadly and dangerous weapon, respectively, a
knife, a screwdriver, and a handgun. (Former §§ 12022, 12022.5, subd. (a)(1),
12022.53, subd. (b).) Waiving a jury trial, defendant stipulated to a 1971 prior
second degree murder conviction alleged as a special circumstance, and admitted
other prior convictions alleged in the information. As to both murder counts, the
jury found true the special-circumstance allegation of multiple murder


1        All further statutory references are to the Penal Code unless otherwise
noted.
(§ 190.2, subd. (a)(3)), while the trial court found true the prior murder special-
circumstance allegation (§ 190.2, subd. (a)(2)). After a penalty trial, the jury
returned a verdict of death. The court denied the automatic motion to modify the
verdict (§ 190.4), and imposed a sentence of death, along with an additional
consecutive term of 25 years to life in prison for the robbery count. The trial court
also sentenced defendant to various consecutive sentence enhancements, all of
which were stayed pending imposition of the death judgment. This appeal is
automatic. (§ 1239, subd. (b).)
       Defendant‟s 1999 trial took place more than a decade after the murders of
Facundo and Apodaca, and the delay in prosecution is the subject of various
claims defendant raises on appeal. For reasons that follow, we reverse the
judgment of conviction for the second degree murder of Apodaca, and reverse the
penalty judgment based on our setting aside both the prior murder and multiple
murder special-circumstance findings. (See post, at p 67.) Although we must
reverse the penalty judgment, we have included additional factual background as
necessary to provide context.
                  I. FACTUAL AND PROCEDURAL BACKGROUND

       A. Guilt Phase

           1. Prosecution evidence

               a. Murder of Max Facundo
       The prosecution presented evidence that on June 21, 1986, defendant
stabbed and killed Max Facundo, the abusive boyfriend of defendant‟s cousin,
Charlene Trujeque.2



2      To avoid confusion, we have used first names when necessary.



                                          2
       When Charlene was 16 or 17 years old, defendant began writing letters to
her while he was incarcerated. In the letters, defendant asked about his family and
told Charlene to stay out of trouble. Charlene‟s mother, Elena Trujeque, read the
letters defendant had sent and became concerned. In particular, Elena thought one
of the letters read more like a “love letter” than a “cousinly” letter because
defendant said he would protect Charlene if anybody hurt her, and that she
“mean[t] the world to” him. He also wrote “you‟ll always be mine and you‟ll
always be close to my heart.” Elena also discovered that Charlene was accepting
collect telephone calls from defendant, who was still incarcerated. Elena and
Charlene‟s father, Charlie Trujeque, tried to stop Charlene from getting “too
friendly” with defendant, but Charlene continued to write to him.
       In 1984, when Charlene was about 20 years old, she began dating Facundo
and often stayed at his house. Though their relationship appeared fine at first,
during the final months of their relationship, Facundo began to beat up Charlene
when she refused to do drugs with him. She did not tell her parents (defendant‟s
uncle and aunt) about the beatings, but they would see her bruised face when she
came home. Elena recalled seeing injuries on Charlene, including black eyes and
bruises, on 15 to 20 separate occasions. Though Charlene lied to her parents about
how she got her injuries, Elena said “everybody knew” that Facundo beat up their
daughter. While Charlene‟s parents were upset and afraid for her life, they voiced
their concerns only to Charlene, and repeatedly asked Charlene to end her
relationship with Facundo. Although Charlie did not verbally threaten Facundo,
he told Elena that he was going to beat up Facundo and once ran after him with a
baseball bat. On one visit, after Facundo refused to let them see their daughter,
Charlie and Elena went to the police to report the domestic violence. However,
the parents were told that the police could not do anything unless Charlene
reported it herself.

                                          3
       After defendant was released from prison in May 1986, he and Charlene
met for the first time at her parents‟ house. Charlene did not mention Facundo to
defendant and she did not have any visible injuries. According to Elena, the two
talked all night.
       On the evening of June 21, 1986, the day Facundo was killed, Charlene was
at her parents‟ house and sported a black eye. Defendant came over with another
cousin, Raymond Guzman. Almost as soon as they got there, defendant and
Raymond called Charlie outside to talk. They spoke for about five minutes.
When Elena asked Charlie what they had talked about, Charlie would not respond;
he seemed nervous and afraid. However, sometime earlier, Charlie had asked
defendant to break Facundo‟s leg or arm to teach him a lesson, but not to hurt him
too badly.
       When defendant asked Charlene how she got her black eye and if her
boyfriend did it, she would not say. Defendant repeatedly asked Charlene whether
Facundo would be coming by later because defendant wanted to “meet him and
talk to him.” Charlene could tell defendant was angry about her black eye, so she
asked him to promise not to hurt Facundo. He replied that promises were made to
be broken, but that she need not worry because nothing would happen.
       When Facundo came to Charlie and Elena‟s house to pick up Charlene,
defendant asked Charlene if they would drop off both defendant and Raymond at
the home of Raymond‟s sister, Pat Perez, in South Gate. Facundo agreed to do so,
and the four left in Facundo‟s car. Defendant and Raymond were seated in the
back, Charlene was in the front passenger seat, and Facundo was driving.
Facundo pulled out a cigarette dipped in PCP, began smoking it, and shared it with
Charlene and Raymond. At some point, Facundo pulled over to let Charlene
drive. They arrived at Pat‟s house around 10:45 p.m. Charlene exited the car to
let Raymond out of the backseat. She and Raymond walked towards Pat‟s home,

                                        4
and waited for Facundo and defendant to follow. When she heard yelling,
Charlene turned around and saw Facundo and defendant struggling. She ran
towards them and screamed for them to stop. Charlene held Facundo, who was
covered in blood, and they fell onto the ground. Defendant fled the scene.
Facundo died of multiple stab wounds to the chest.
       When the police arrived at the scene of the stabbing, Charlene was still
screaming. The police handcuffed her hands and feet and placed her on her
stomach in a patrol car. They eventually transported her to the police station.
Charlene‟s blouse was ripped and she had cuts on her chest and right forearm.
Detective Terry McWeeney of the South Gate Police Department interviewed both
Charlene and Raymond while they were in custody. Charlene told the detective
she saw Facundo lying in the street, but did not see defendant or Raymond. She
never told the police that defendant had killed Facundo.
       Pat called Charlie and Elena and told them that defendant had killed
Facundo and that the police had already taken Charlene and Raymond to the
station. They tried calling the police station, but could not get any information.
They returned home. Defendant later called Charlie and Elena‟s house and asked
for a ride. According to Elena, they picked defendant up at a 7-Eleven
convenience store on the corner of Firestone and Atlantic in South Gate. He asked
to be dropped off at his mother‟s house in El Sereno. During the drive, defendant
told Charlie and Elena that he killed Facundo. Charlie yelled at him, “ „[W]hy did
you do it,‟ ” and told defendant he never wanted him to kill Facundo. Elena
testified defendant told her, “ „Tia [meaning “aunt” in Spanish], you don‟t have to
worry anything more about this anymore.‟ ” Elena also testified defendant told
her he “had no remorse. He did it like — like it was nothing. He didn‟t know the
guy, like I didn‟t know him. He had no feelings for him, so he just done [sic] him
away.”

                                          5
       Hours after the murder, around 2 or 3 a.m., Sergeant Russell Beecher of the
South Gate Police Department received a call from a man identifying himself as
defendant. The caller said that he was the one who murdered Facundo and that
Charlene and Raymond, who were in custody, should be released. On June 26,
1986, defendant was arrested at his mother‟s house in El Sereno for the murder of
Facundo. The charges, however, were dropped on July 2, 1986 for lack of
probable cause.
       For over a decade, the case remained dormant until 1998 when defendant
— who at the time was serving a life sentence for an unrelated armed robbery —
contacted the Los Angeles County Sheriff‟s Department and confessed to
Facundo‟s murder, along with the murder of Raul Apodaca and another armed
robbery, in order to receive the death penalty. In June 1998, he was charged with
the 1986 murder of Facundo in a three-count complaint.

               b. Murder of Raul Apodaca
       At trial, the prosecution also presented evidence that on January 23, 1987,
defendant and Jesse Salazar3 killed Raul Luis Apodaca at an East Los Angeles
upholstery shop owned by Richard “Conejo” Rivera.4 Rivera dealt drugs from the
shop, which also served as a hangout for White Fence gang members.


3      Salazar was originally charged with defendant for Apodaca‟s murder. On
December 29, 1987, Salazar pleaded guilty to voluntary manslaughter and
received a sentence for time served and five years‟ probation. Though Salazar was
the main perpetrator, the original prosecutor explained that Salazar received
voluntary manslaughter “based on the fact that at that time we did not have our
witnesses, and I believe the public defender thought it was more prudent to take
the plea just in case we might find them.”
4      By the time of defendant‟s 1999 trial, Rivera had died and was therefore
“ „unavailable as a witness‟ ” (Evid. Code, § 240, subd. (a)(3)); thus, his testimony
from the April 8, 1987 preliminary hearing was read into the record.



                                         6
       During the 1999 trial, Robert De Alva testified that he was at the upholstery
shop drinking and doing drugs the evening of January 23, 1987. Given his
admitted drug use, De Alva explained he had a poor memory and could not recall
many details from that night except that he and six to eight other individuals had
walked to the upholstery shop from a nearby bar, the Quiet Cannon. At the shop,
De Alva had injected heroin and had passed out on a table. When the prosecution
asked about Apodaca being killed, he said: “All I remember is a guy laid on the
floor and taking him to the hospital and some guys around him and some guys
leaving, and that‟s all I remember.” Though he did see some “scuffling,” De Alva
was “not aware there was a fight” and did not know who was involved. De Alva
also did not recall much of the previous statement he had given to Detective Birl
Adams several days after the murder. When the prosecution pointed to defendant
at the defense table and asked if De Alva had seen him that night, De Alva replied:
“He don‟t look familiar.”
       Responding to De Alva‟s prior inconsistent statements, Detective Adams
testified that when he interviewed De Alva on January 26, 1987, three days after
the killing, De Alva recounted many details about the night Apodaca was killed.
De Alva told Detective Adams that he was at the upholstery shop with Rivera,
Salazar, Apodaca, defendant, and several other individuals. They were playing
poker when a fight broke out. After the fight was broken up, two individuals left
the shop and De Alva lay down on top of a table in the middle of the shop to sleep.
Remaining at the shop with Rivera and De Alva were defendant, Salazar, and
Apodaca. De Alva woke up when he heard and saw defendant, Salazar, and
Apodaca fighting. Suddenly, Apodaca fell to the floor, and defendant and Salazar
ran out of the shop. After checking on Apodaca, Rivera told De Alva that
Apodaca had been stabbed. They tried to resuscitate Apodaca, and then took him
to East Los Angeles Doctors Hospital in a van. De Alva stayed at the hospital

                                         7
about 15 minutes and then left. Apodaca later died from a stab wound to the chest.
De Alva first found out that Apodaca had died during the January 26 interview
with Detective Adams; he appeared upset. De Alva had no trouble describing
either defendant or Salazar to Detective Adams. Two days later, on January 28,
1987, De Alva identified defendant and Salazar from a 13-photo array Detective
Adams showed him.
       The upholstery shop‟s owner Richard Rivera (whose testimony from
defendant‟s April 8, 1987 preliminary hearing was read into the trial record) gave
a similar account of the events. (See ante, at p. 6, fn. 4.) He testified that during
the poker game, Salazar and Frank Contreras got into a fist fight. In breaking up
the fight, Apodaca grabbed and restrained Salazar, and Luis Villalobos grabbed
Contreras. After the fight, everyone starting leaving one by one, except for
Rivera, defendant, Salazar, Apodaca, and De Alva. Except for De Alva, all had
been staying at the shop for the past few days. Rivera went to the bathroom.
When he came out “a couple minutes” later, Apodaca was lying on his back and
not breathing. Rivera and De Alva opened up his shirt and saw that he had a
puncture wound in his chest. Rivera did not see either defendant or Salazar in the
shop, but when he went outside, he saw them walking away quickly. After Rivera
and De Alva both tried to give Apodaca mouth-to-mouth resuscitation, they
dragged him into a van and drove him to a hospital. Rivera did not call the police
because he “figured Raul [Apodaca] was going to live, and he could deal with it if
they questioned him. I didn‟t think that Raul was going to die.” He lied to both
the nurse and Apodaca‟s stepfather, telling them that Apodaca had been stabbed at
the Quiet Cannon bar and not at his upholstery shop because “I just didn‟t want it
to go down at the shop, I guess.”
       On February 5, 1987, defendant and Salazar were charged with the murder
of Apodaca. The case was dismissed a month later. The prosecution eventually

                                           8
entered into a plea agreement with Salazar, who pleaded guilty to voluntary
manslaughter. On March 25, 1987, the prosecution refiled the first degree murder
charge against defendant, but after the preliminary hearing, he was held to answer
for only the lesser offense of manslaughter. On April 24, 1987, the prosecution
filed an information again charging defendant with the first degree murder of
Apodaca. After the prosecution informed the court that they could not find the
material witness, De Alva, the murder charge was dismissed on June 23, 1987.
The case lay dormant until 1998, when defendant confessed to the murder.

               c. Robbery of Spartan Burgers restaurant
      The prosecution presented evidence that on January 21, 1998, defendant
robbed Spartan Burgers restaurant in Huntington Park. According to the
restaurant‟s cashier, Ronni Mandujano, defendant came in around 8:00 p.m. and
first ordered food. When it came time to pay, defendant pulled out a small black
handgun and demanded money. The restaurant‟s owner (who was not identified
by name) approached Mandujano and defendant, opened the register, and placed
the cashbox on the counter. Pointing the gun at Mandujano the entire time,
defendant asked the owner if he had any other money in the restaurant. The owner
said there was additional money in the back. Defendant ordered Mandujano and
the owner to the back. Defendant pushed Mandujano, who could feel defendant
pressing the gun on her back and head. After the owner gave him more money,
defendant left. Mandujano called the police. A few months later, on April 29,
1998, Mandujano identified defendant from a six-pack photo array. She testified
that she was “positive” it was defendant and also identified him in the courtroom.




                                         9
             2. Defense evidence

                 a. Murder of Max Facundo
         Against the advice of counsel, defendant testified on his own behalf. His
account of Facundo‟s killing and events surrounding it largely tracked the
evidence adduced at trial. (See ante, at pp. 2-6.) However, defendant‟s version
differed in these material respects: Defendant testified that Charlie had asked him
to kill Facundo not just hurt him, and that Elena was lying about Charlie asking
him only to break Facundo‟s arms and legs. On cross-examination, however,
defendant admitted Charlie never used the words “go kill him” but said to “take
care of it,” which defendant took to mean “killing Max and getting away with it.”
Though Charlie never told defendant why he wanted him to kill Facundo,
defendant thought it was “because he was beating up on my cousin.” Though
Elena sent him money while he was incarcerated, defendant did not kill Facundo
for the money. Elena also told defendant that Facundo beats up Charlene “just
about every day.” Elena also gave him $300 to buy a gun.
         Defendant testified he intended to inflict a lethal wound on Facundo by
using a method of stabbing he learned in prison; he also hoped to inflict at least
100 stab wounds. He also admitted he “couldn‟t wait to kill him. I didn‟t want to
wait,” and that he “could have done it later if I wanted to.” Defendant stated he
had been thinking about killing Facundo since he was released from prison. When
Charlie and Elena picked defendant up after the killing, defendant said their
“troubles are over,” meaning “I don‟t have to watch my back for anyone coming
after me, and Charlene doesn‟t have to worry about getting any black eyes, so it‟s
over.”

                 b. Murder of Raul Apodaca
         Defendant testified that both he and Rivera were members of the White
Fence gang, and that he and others used to frequent Rivera‟s upholstery shop.


                                          10
Defendant‟s gang moniker was “Killer”; a piece of wood bearing that name was
found at the shop.
       His account of the events leading up to the killing of Apodaca largely
tracked eyewitness De Alva‟s trial testimony and Rivera‟s testimony from the
preliminary hearing. As to the fight between Salazar and Apodaca, defendant
testified that he thought that Salazar was getting the worse of the fight, so
defendant stepped in to help his friend. Apodaca, who was on top of Salazar,
struck defendant in the face. Defendant picked up a screwdriver and stabbed
Apodaca two or three times. He saw Salazar stab Apodaca in the chest with
another screwdriver. Defendant recalled stabbing Apodaca on the left side, but did
not remember the exact location or number of stabbings. Defendant did not know
who was responsible for the lethal wound.

               c. Robbery of Spartan Burgers restaurant
       On cross-examination, defendant denied robbing Spartan Burgers and
claimed the main witness, Ronni Mandujano, was “wrong.” Defense counsel did
not cross-examine Mandujano.

           3. Defendant’s confession to the murders and desire to be prosecuted

               a. 1998 confession to Los Angeles County Sheriff’s deputies
       The Facundo and Apodaca murder cases lay dormant for over 10 years. In
February 1998, Los Angeles County Sheriff‟s Deputy Frank Durazo received a
telephone call from another deputy regarding an inmate, defendant. Defendant
was in custody in the San Diego County Jail and claimed to have information
about two homicides and a robbery. Deputy Durazo and his partner, Los Angeles
County Sheriff‟s Deputy Jose Romero, drove to San Diego to interview defendant.
The February 20, 1998, tape-recorded interview, a transcript of which was
admitted as an exhibit, was played for the jury but was not simultaneously


                                          11
transcribed into the record. Defendant‟s statement to the deputies about the
Facundo and Apodaca murders and the Spartan Burgers robbery was generally
consistent with his testimony at trial.
       As to the Apodaca murder, however, defendant provided further context.
According to defendant, before heading to Rivera‟s upholstery shop from the
Quiet Cannon bar, Salazar had told defendant that he hated Apodaca and wanted
to kill him. Salazar said he was going to stab Apodaca and that he wanted
defendant “ „to have my back, and if — and if — if he starts getting the best of me
and everything just, you know, just back my play.‟ ” Later, when Apodaca and
Salazar started fighting at the upholstery shop and defendant intervened, Apodaca
hit defendant in the face. That is when, according to defendant, “automatically my
— the red light goes on and the alarm goes off and I get, you know, that did it, and
I said now fuck this mother fucker, I don‟t even know him, he ain‟t done nothing
to me, but I just don‟t like him, because of the way he is, you know.” As
defendant reached for a screwdriver, he saw Salazar on top of Apodaca, stabbing
him. Defendant then stabbed Apodaca two or three times on the left side of his
body. After defendant was arrested, he “gave [Salazar] up.”
       Regarding the Spartan Burgers robbery, which at trial defendant denied
committing, defendant initially told the deputies that he had robbed the restaurant
with his cousin, Theodore “Teddy” Trujeque (Charlene‟s brother and Elena and
Charlie‟s son), because Teddy needed money. Defendant thought he “got about
close to $400,” of which he gave Teddy $150 and kept the rest. Defendant did not
tell authorities about Teddy‟s involvement for “personal reasons.”

                b. Letter to Los Angeles County District Attorney
       Over defense counsel‟s objection, the prosecution introduced a letter
defendant had written to then Los Angeles County District Attorney Gil Garcetti



                                          12
(Garcetti letter). In the over-600-word letter, written shortly before his September
1998 preliminary hearing and while he was representing himself, defendant
admitted he murdered both Apodaca and Facundo while “fully aware of all of my
mental faculties” and urged Garcetti to seek the death penalty against him. The
Garcetti letter also stated that “both of those cowards deserved what they got:
death and an early expiration in life, to say the least!”; that if he “had the
opportunity to do it over I would cut off their heads and send „em both to their
family!”

       B. Penalty Phase

           1. Aggravating evidence

                a. Murder of Allen Rothenberg
       At trial, the prosecution presented evidence that on February 7, 1969, less
than a month after he turned 16 years old, defendant robbed and fatally stabbed
Allen Rothenberg.5 Rothenberg was delivering beer for Nate‟s Liquor Store to
defendant‟s home at 3302 Paola Avenue in Los Angeles. In a 1969 statement to
detectives, which was read to the jury, defendant said he called up Nate‟s Liquor
Store as “Mr. Martinez” and ordered a case of Colt 45 beer. Defendant stated he
was talking to a girl in the bedroom when his friend, Bert Gonzalez, told him
someone was at the door. Defendant told detectives: “I already had a knife with
me because I already had it planned that I was going to rob the guy when he got
there.” Defendant “got a knife and put it around [Rothenberg‟s] neck and threw


5       To show the nature and circumstances of defendant‟s prior violent conduct
(§ 190.3, factor (b)), the prosecution — over defense counsel‟s objection —
elicited testimony from Officer Sanchez, who knew and lived near the victim and
his family, that Rothenberg had a “handicap,” i.e., he was both “mentally slow”
and “physically slow” with one bad leg and a foot that he dragged.



                                           13
him on the floor and told him this was a holdup. . . . [¶] . . . [¶] I just — I kept — I
just kept stabbing him.” He stated he did not remember how many times he
stabbed Rothenberg, but that Rothenberg “kept on giving me a hassle and finally
he settled down and he just laid there.” Defendant dragged Rothenberg‟s body
through the bedroom and down the stairs. Bert helped defendant throw his body
over the next yard. Defendant indicated he cut his hands because his hand “kept
sliding down the blade” when he was stabbing Rothenberg.
       Former Los Angeles Police Officer Ruben Sanchez, who responded to the
call at 3302 Paola, testified that officers found Rothenberg‟s body in the yard next
door. Rothenberg had been stabbed multiple times in the chest and his pants
pockets were turned inside out. A trail of blood led back into the house where
detectives found blood in the dining room, a bloody door knob, and blood splats
on the wall. An investigator located a bloody 13-inch kitchen knife at the side of
the house. Officer Sanchez identified numerous photographs of the Rothenberg
crime scene, which were introduced into evidence. The trial court took judicial
notice of defendant‟s juvenile court files.

                b. Other offenses
       The prosecution presented evidence that defendant committed a number of
assaults and robberies from 1978 to 1998.

                c. Garcetti letter
       Over defense counsel‟s renewed objection, the trial court admitted the
Garcetti letter at the penalty phase. This version, which had fewer redactions than
the version admitted at the guilt phase, included defendant‟s statement that he did
not “regret my actions in any way, shape, or form” and his threat to kill someone
in prison if he did not get the death penalty.




                                           14
           2. Mitigating evidence

                a. Family history
       Through the testimony of defendant‟s half sister and several maternal aunts
and uncles, defendant presented evidence of his childhood and his mother‟s family
history. On defendant‟s behalf, his ex-wife and their daughter, along with his
former juvenile probation officer and parole officer, all testified. Defense counsel
also presented testimony from a psychiatrist who evaluated defendant as a juvenile
and from an expert witness on gangs.

                b. Medical history
       Dr. Marshall Cherkas, who examined defendant for the juvenile court in
November 1966 and shortly before defendant‟s 1999 trial, testified that he found
defendant emotionally unstable with borderline organic brain damage and a
history of treatment for psychomotor epilepsy.
                                   II. DISCUSSION

       A. Pretrial Issues

           1. The invalidity of the second degree murder conviction underlying
              the prior murder special-circumstance allegation
       In support of the prior murder special circumstance (§ 190.2, subd. (a)(2)),
the prosecution alleged defendant‟s prior conviction for the second degree murder
of Allen Rothenberg. In 1971, defendant pleaded guilty to second degree murder
after he was deemed not fit to be tried in juvenile court and was prosecuted in
adult court. (See Welf. & Inst. Code, former § 707, as amended by Stats. 1967,
ch. 1357, § 1, p. 3197.) Before the 1999 trial in the instant matter, defendant
moved to strike the prior murder conviction and related special-circumstance
allegation based on the claim that his guilty plea was invalid under Boykin/Tahl —
that is, he was not advised of, nor did he waive, his constitutional rights to a trial
and to confront and cross-examine witnesses, and his right against self-


                                           15
incrimination. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1
Cal.3d 122.) The trial court denied the motion.
       On appeal, defendant raises only a double jeopardy challenge. He argues
that the high court‟s 1975 decision in Breed v. Jones (1975) 421 U.S. 519, 531
(Breed), which held that an adult prosecution after a juvenile adjudication for the
same offense violates double jeopardy, compels the conclusion that he was placed
at least twice6 in jeopardy. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §
15.) The Attorney General, however, counters that defendant has waived, or more
accurately, has forfeited this double jeopardy claim because he failed to raise it
below, and that in any event, he cannot collaterally challenge his prior conviction.
For reasons that follow, we conclude that defendant has not forfeited the issue nor
is he estopped from collaterally challenging his 1971 murder conviction.

               a. Procedural background
       The facts of Rothenberg‟s killing are discussed above. (See ante, at pp. 13-
14.) As relevant here, on February 11, 1969, a petition was filed in juvenile court
alleging that defendant, a 16-year-old minor, came within the then current
provisions of Welfare and Institutions Code section 602. (See Stats. 1961, ch.
1616, § 2, p. 3472; section 602 petition.) Paragraph I of the petition alleged that

6      Defendant argues that he was actually placed in jeopardy three times. As
discussed further below, he adds that jeopardy also attached at the April 7, 1969 de
novo rehearing where the juvenile court, after considering the March hearing
transcripts and additional evidence, abandoned the referee‟s findings and
concluded defendant should be prosecuted as an adult. (See Jesse W. v. Superior
Court (1979) 26 Cal.3d 41, 48 [“if petitioner is subjected to rehearing de novo
procedures . . . he would be exposed to jeopardy”].) For her part, the Attorney
General counters that Jesse W. may not be applied retroactively or used to
collaterally challenge the prior conviction. It is unnecessary to discuss this third
attachment of jeopardy because, as we explain below, defendant‟s claim that he
was placed twice in jeopardy has merit. (See post, at p. 26.)



                                         16
defendant “did wilfully, unlawfully, and with malice aforethought murder Allen
Howard Rothenberg,” in violation of section 187, and paragraph II alleged that
defendant “did wilfully and unlawfully by means of force and fear” take from
Rothenberg money, in violation of section 211. At the request of the public
defender who was representing defendant, the court appointed a psychiatrist to
determine whether a plea of guilty by reason of insanity was appropriate or
whether defendant had diminished capacity. On February 13, 1969, defendant
denied all the allegations in the petition.
       On March 6, 1969, a juvenile court referee conducted the adjudicatory
hearing at which the deputy district attorney called eight witnesses and introduced
numerous exhibits. Over codefendant Bert Gonzales‟s objection, the hearing was
treated as a civil rather than criminal matter, thus making the standard of beyond a
reasonable doubt inapplicable. The next day, defendant‟s counsel informed the
referee that defendant was willing to admit to a violation of former section 192,
subdivision 2 (involuntary manslaughter), in exchange for dismissal of paragraphs
I and II of the petition. (See Stats. 1945, ch. 1006, § 1, p. 1942.) Opposing the
dismissal of any allegations, the deputy district attorney proffered evidence that
defendant had confessed to stabbing Rothenberg repeatedly, to planning the
robbery in advance, and to taking money from Rothenberg. Ultimately, the
referee ruled that “justice would dictate under present circumstances” deleting the
malice aforethought allegation.
       After defendant admitted he took part in the stabbing of Rothenberg, the
referee accepted defendant‟s admission, dismissed the more serious allegations of
paragraphs I and II, and amended the petition to allege involuntary manslaughter
as follows: “PARAGRAPH III: that said minor, on or about February 7, 1969, in
the commission of an unlawful act killed Allen Howard Rothenberg, thereby
violating Section 292.2 [sic —former section 192, subdivision 2, now section 192,

                                              17
subdivision (b)] of the Penal Code.” In his March 7, 1969 “Findings and Order,”
the referee explained he relied on the probation officer‟s report that defendant had
a “history of mental and brain problems plus a long record of delinquent behavior
not highlighted by assaultive behavior,” and the fact that defendant had only
recently turned 16 when he committed the crime. In sustaining the petition, the
referee recommended that defendant be recommitted to the California Youth
Authority.
         Another juvenile court judge, however, ordered a de novo rehearing of the
referee‟s adjudication. (See Welf. & Inst. Code, former § 559, added by Stats.
1961, ch. 1616, § 2, p. 3467 and repealed by Stats. 1976, ch. 1068, § 17, p. 4781.)
At the April 7, 1969 rehearing before yet another judge, the court considered the
transcripts from the March 6 and March 7, 1969 hearings, and the parties
presented additional evidence, including defendant‟s testimony. This time around,
the court found the murder and robbery allegations in the petition to be true. On
May 14, 1969, defendant was found not fit for juvenile court, his section 602
petition was dismissed, and he was ordered prosecuted as an adult.
         On February 1, 1971, almost two years after the section 602 petition was
first filed against defendant, he pleaded guilty to second degree murder in superior
court.

                 b. Legal principles
         Welfare and Institutions Code section 602 “extends juvenile court
jurisdiction to persons who are under 18 years of age when they violate any law
„defining crime.‟ (§ 602, subd. (a).)” (In re Eddie M. (2003) 31 Cal.4th 480, 486.)
Under present law, on the People‟s motion “made prior to the attachment of
jeopardy,” a juvenile court may in its discretion determine that the minor is unfit
for treatment in juvenile court and should be tried instead in criminal court. (Welf.



                                          18
& Inst. Code, §707, subd. (a)(1) [referred to as a fitness or transfer hearing].) If a
minor is found fit for juvenile court treatment, the court next determines at an
adjudicatory or jurisdictional hearing whether a crime has been committed. (See
In re Greg F. (2012) 55 Cal.4th 393, 403; § 701.) Any offense alleged in the
section 602 petition must be proven true “beyond a reasonable doubt” and be
“supported by evidence, legally admissible in the trial of criminal cases.” (§ 701;
see In re Eddie M., supra, 31 Cal.4th at p. 487; In re Greg F., supra, 55 Cal.4th at
p. 403.) Once the court sustains a section 602 petition and finds jurisdiction, the
court conducts a dispositional hearing at which it considers the probation officer‟s
social study report and other evidence in determining the appropriate disposition
for the minor. (Welf. & Inst. Code, § 702; see In re Greg F., supra, 55 Cal.4th at
p. 404; In re Eddie M., supra, 31 Cal.4th at p. 487 [“Less exacting rules govern
disposition.”].)
       As relevant here, at the time of defendant‟s 1969 juvenile adjudication,
Welfare and Institutions Code former section 707 provided that a juvenile court
could determine — “[a]t any time during” the hearing — that the minor is not fit
to be treated as a juvenile and should be transferred to an adult court. (Welf. &
Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197; see
Barker v. Estelle (9th Cir. 1989) 913 F.2d 1433, 1439-1440.) In 1975, the high
court examined this statutory scheme and unanimously held that jeopardy attached
at the adjudicatory hearing, which it described as “a proceeding whose object is to
determine whether [the juvenile] has committed criminal acts that violate a
criminal law and whose potential consequences include both the stigma inherent in
such a determination and the deprivation of liberty for many years.” (Breed,
supra, 421 U.S. at p. 529; id. at p. 531 [“Jeopardy attached . . . when the Juvenile
Court, as the trier of the facts, began to hear evidence.”].)



                                          19
       Although a finding of unfitness and the ensuing transfer to an adult court
could occur not only after, but also before, an adjudication of guilt (see Welf. &
Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197), the
risk of adjudication itself was enough for jeopardy to attach. (Breed, supra, 421
U.S. at p. 531 [analyzing an “aspect of the juvenile-court system in terms of the
kind of risk to which jeopardy refers”]; see Barker v. Estelle, supra, 913 F.2d at p.
1439.) As such, the high court emphasized that any decision to transfer a juvenile
to adult court should be made prior to an adjudicatory proceeding. (Breed, supra,
421 U.S. at pp. 536-538 & fn. 18.) In response, our Legislature repealed and
reenacted Welfare and Institutions Code section 707 to conform to the
requirements of the high court‟s decision. (See Stats. 1975, ch. 1266, § 4, p. 3325;
see Barker v. Estelle, supra, 913 F.2d at pp. 1439-1440.)

               c. Forfeiture
       At the outset, we address whether defendant has forfeited the double
jeopardy issue. As noted above, defendant‟s motion to strike the 1971 conviction
rested mainly on his Boykin/Tahl claim. However, at the August 10, 1999,
evidentiary hearing on defendant‟s motion, defense counsel asked the original
deputy district attorney, John Breault, who had prosecuted defendant in adult
court, whether he remembered if defendant‟s previous attorney had argued in 1971
that the proceeding in adult court was in violation of double jeopardy. Breault
testified that he did remember, and that he had countered that jeopardy did not
attach because it was a juvenile proceeding.
       Despite initiating the questions on double jeopardy himself, defense
counsel did not move to strike the prior conviction on double jeopardy grounds,
and we see no possible tactical reason for counsel not to have done so. (See
People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5.) We have previously



                                         20
considered a double jeopardy issue on appeal that was technically not cognizable
because a meritorious double jeopardy defense relates to a defendant‟s claim of
ineffective assistance of counsel. (People v. Scott (1997) 15 Cal.4th 1188, 1201;
People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.) We will therefore address
the merits of this claim. Before discussing the claim‟s substance, however, we
must consider possible procedural hurdles relating to the retroactivity of Breed,
supra, 421 U.S. 519, and the collateral challenge to a prior judgment.

                d. Retroactivity
       Defendant asserts that although Breed was decided after his 1971
conviction, its holding applies retroactively because he was subject to the very
statute that the high court effectively invalidated. We agree. As we explain, this
conclusion is compelled by two lines of cases — In re Bryan (1976) 16 Cal.3d
782, which dealt specifically with the retroactivity of Breed, and People v. Horton
(1995) 11 Cal.4th 1068, 1139-1140 (Horton), which involved striking a
constitutionally invalid prior conviction alleged as the basis for a special
circumstance.
       In In re Bryan, the issue was whether the 1975 holding in Breed applied
retroactively to the defendant‟s juvenile adjudicatory hearing held in 1971. In
concluding that it did, we declined to apply the three-pronged analysis for
retroactivity of constitutional rules of criminal procedure under Linkletter v.
Walker (1965) 381 U.S. 618. We noted: “ „The guarantee against double
jeopardy is significantly different from procedural guarantees held in the Linkletter
line of cases to have prospective effect only. While this guarantee, like the others,
is a constitutional right of the criminal defendant, its practical result is to prevent a
trial from taking place at all, rather than to prescribe procedural rules that govern
the conduct of a trial.‟ ” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting



                                           21
Robinson v. Neil (1973) 409 U.S. 505, 509 [applying new rule retroactively
because old rule violated double jeopardy; court lacked authority to try
defendant].) We found it unnecessary to apply the Linkletter test “in the case of a
decision compelled by constitutional prohibitions against multiple jeopardy.” (In
re Bryan, supra, 16 Cal.3d at p. 787.) “Breed is thus to be given retrospective
application.” (Ibid.)
       The Attorney General‟s attempt to distinguish In re Bryan is unpersuasive.
She primarily relies on Griffith v. Kentucky (1987) 479 U.S. 314, 328, in which the
high court held that “a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not
yet final, with no exception for cases in which the new rule constitutes a „clear
break‟ with the past.” (Italics added.) The Attorney General evidently reasons
that the phrase “not yet final” embraces an implied holding or negative inference
that such rules do not apply retroactively to decisions that are final. Based on this
reading of Griffith v. Kentucky, the Attorney General argues that because
defendant‟s 1971 conviction was already final at the time the high court decided
Breed, the “new rule” in Breed could not be applied retroactively to defendant‟s
case. Her reliance on Griffith v. Kentucky is misplaced.
       In Griffith v. Kentucky, the high court held that new rules of criminal
procedure always apply to cases that are not yet final. It “rejected as unprincipled
and inequitable the Linkletter standard for cases pending on direct review at the
time a new rule is announced.” (Teague v. Lane (1989) 489 U.S. 288, 304.)
Contrary to the Attorney General‟s contention, the court expressed no view in
Griffith v. Kentucky on whether such rules apply retroactively to cases that are
already final. (Griffith v. Kentucky, supra, 479 U.S. at p. 329 (conc. opn. of
Powell, J.) [retroactivity question regarding habeas corpus petitions is “carefully



                                          22
left open”].) It addressed that question of collateral review in Teague v. Lane,
supra, 489 U.S. 288.
       In Teague v. Lane, the high court concluded that new rules of criminal
procedure do not ordinarily apply retroactively to cases “which have become final
before the new rules are announced.” (Teague v. Lane, supra, 489 U.S. at p. 310.)
However, a new rule may be given retroactive effect if: (1) the rule is, in fact,
“substantive,” or (2) it is “ „a watershed rule[] of criminal procedure‟ implicating
the fundamental fairness and accuracy of the criminal proceeding.” (Schriro v.
Summerlin (2004) 542 U.S. 348, 351-352, italics omitted; Teague v. Lane, supra,
489 U.S. at p. 311.) The Attorney General did not refer to Teague v. Lane‟s
nonretroactivity principle, and, as such, she did not address whether the rule
announced in Breed falls within either exception. We conclude that Breed‟s
double jeopardy rule is substantive in nature, and that Teague v. Lane poses no bar
to applying Breed retroactively to cases on collateral review. (Schriro v.
Summerlin, supra, 542 U.S. at p. 352, fn. 4 [rules falling under Teague v. Lane‟s
first exception “are more accurately characterized as substantive rules not subject
to the bar”].)
       As noted above, the “ „practical result‟ ” of the guarantee against double
jeopardy “ „is to prevent a trial from taking place at all, rather than to prescribe
procedural rules that govern the conduct of a trial.‟ ” (In re Bryan, supra, 16
Cal.3d at p. 786, quoting Robinson v. Neil, supra, 409 U.S. at p. 509; see United
States v. Johnson (1982) 457 U.S. 537, 550 [“the Court has recognized full
retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to
convict or punish a criminal defendant in the first place”].) Using the high court‟s
rationale, it seems fair to characterize Breed‟s double jeopardy rule as more
substantive than procedural because without the rule‟s retroactive application, a
defendant would otherwise “face[] a punishment that the law cannot impose upon

                                          23
him.” (Schriro v. Summerlin, supra, 542 U.S. at p. 352.) In short, we reject the
Attorney General‟s argument that the retroactivity rule set out In re Bryan must be
reconsidered in light of relevant high court decisions.
       Nevertheless, the Attorney General maintains that even if In re Bryan
remains good law, a violation of the constitutional double jeopardy protection may
not form the basis of a motion to strike a prior murder conviction in a capital case.
Such a motion, according to the Attorney General, may only be based on certain
“fundamental constitutional flaws.” (Horton, supra, 11 Cal.4th at p. 1135.) She
suggests that In re Reno (2012) 55 Cal.4th 428, in which the defendant failed to
show his double jeopardy challenge involved a fundamental constitutional error,
compels us to conclude that a double jeopardy violation is not the type of
fundamental constitutional violation that may be asserted in such a motion. Not
so.
       In re Reno dealt with specific procedural issues when a habeas corpus
petitioner collaterally attacks his final conviction and “has reraised all prior
appellate claims en masse.” (In re Reno, supra, 55 Cal.4th at p. 485.) Regarding
the petitioner‟s double jeopardy claim which was resolved against him on direct
appeal, we concluded it was procedurally barred under In re Waltreus (1965) 62
Cal.2d 218, 225. The petitioner, we found, failed “to allege any facts suggesting
the double jeopardy issue falls within” Waltreus‟s narrow exception that the issue
“involves a fundamental constitutional error.” (In re Reno, supra, 55 Cal.4th at p.
481, italics added; id. at p. 486 [“we ascribe no weight to these assertions,
unadorned as they are by factual allegations or legal argument”].) We also pointed
out that the petitioner failed to allege facts or present argument on why his
“renewed double jeopardy claim” constituted a structural defect not susceptible to
harmless error review. (Id. at p. 487.) Thus, contrary to the Attorney General‟s
assertion, our holding in In re Reno, which dealt specifically with the deficient

                                          24
allegations in that case, did not suggest that a double jeopardy violation does not
qualify as a fundamental constitutional flaw as a matter of law. (See id. at pp.
486-487; see People v. Sumstine (1984) 36 Cal.3d 909, 917 [suggesting defendant
“may bring any challenge that undermines the constitutional basis of his prior
conviction” (italics added)].)
       We recognize that unlike In re Bryan, where the defendant sought relief by
writ of habeas corpus, defendant here collaterally attacks his prior conviction by
way of a pretrial motion to strike. This distinction, however, strengthens our
conclusion that defendant was permitted to make such a challenge here. Unlike a
writ of habeas corpus, a motion to strike does not seek to vacate or extinguish the
underlying conviction, which would in turn trigger procedural bars. (Horton,
supra, 11 Cal.4th at p. 1138.) “The purpose of a motion to strike is to challenge
only the present effect of the prior conviction.” (People v. Sumstine, supra, 36
Cal.3d at p. 921.) Significantly, the collateral challenge here is to a prior
conviction alleged as a basis for a death-qualifying special circumstance. (See
Horton, supra, 11 Cal.4th at pp. 1137-1138 [procedural bars do not apply to
collateral attacks on prior convictions underlying special-circumstance
allegations].) “In the capital context, a defendant almost invariably will face much
graver consequences from the use of the prior conviction, as a predicate for a
special-circumstance finding, than he or she faced in the earlier criminal
proceeding; it is because of those grave consequences, of course, that a defendant
has been accorded special procedural protections and assistance in a capital case.
In many instances, it may be unfair — and inconsistent with the special need for
reliability — to deprive a defendant of the right to demonstrate the invalidity of
the prior conviction in the subsequent capital prosecution simply because in the
prior proceeding, when much less may have been at stake and the defendant may



                                          25
not have been accorded the same procedural protections, defendant did not prevail
on the issue.” (Id. at p. 1138.)
       For all these reasons, we conclude that defendant may collaterally challenge
his 1971 second degree murder conviction.

                e. Merits
       Turning to the substance of this claim, it is clear that based on Breed‟s
retroactive application, defendant‟s 1971 second degree murder conviction was
obtained in violation of the double jeopardy clause. (U.S. Const., 5th, 14th
Amends.; Cal. Const., art. I, § 15.) Defendant was placed once in jeopardy at the
adjudicatory juvenile hearing before the referee, and once again, when he was
prosecuted for the same offense in adult court where he pleaded guilty. (Breed,
supra, 421 U.S. at p. 541 [“We hold that the prosecution of respondent in Superior
Court, after an adjudicatory proceeding in Juvenile Court, violated the Double
Jeopardy Clause . . . .”].) Because the prior conviction‟s constitutional deficiency
is apparent from the record, thus making it unnecessary for us to remand for a
hearing, we must set aside this special-circumstance finding (§ 190.2, subd.
(a)(2)). (See Horton, supra, 11 Cal.4th at pp. 1139-1140 [declining to remand for
new hearing on motion to strike prior conviction].)7
       Nonetheless, we will not disturb the death judgment unless defendant can
show prejudice. (See Horton, supra, 11 Cal.4th at p. 1140.) Although the death
judgment here was also supported by the multiple murder special-circumstance
finding, we conclude below that special-circumstance-allegation finding must also



7      In a separate claim, which is addressed below, defendant also argues that
this 1971 conviction was improperly used to impeach his trial testimony and, as
such, his conviction for the Facundo murder should be overturned as well.



                                         26
be set aside. (See post, at p. 34.) Consequently, without either special-
circumstance finding, we must reverse the penalty judgment.

           2. The prosecution’s refiling of the Apodaca murder charge
       Defendant argues that the trial court erred by allowing the prosecution to
refile the Apodaca murder charge, which he contends had been previously
dismissed three times. (See § 1387 [two-dismissal rule for refiling charges of
certain violent felonies].) He asserts that even if the murder charge had been
dismissed only twice, the court retroactively applied section 1387.1 — which
became effective January 1, 1988 to allow for a third filing in the case of
excusable neglect — in violation of the ex post facto clauses of both the state and
federal Constitutions. (See U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; see
John L. v. Superior Court (2004) 33 Cal.4th 158, 171-172 (John L.) [federal and
state ex post facto clauses are similarly construed].) He further argues that the
multiple murder special circumstance should be vacated because it is based in part
on the invalid second degree murder conviction for the death of Apodaca. For
reasons that follow, we agree with defendant.

                a. Procedural history
       The facts of Apodaca‟s killing are discussed above. (See ante, at pp. 6-9.)
As relevant here, Apodaca was killed on January 23, 1987. On February 5, 1987,
the People charged both defendant and Jesse Salazar for the first degree murder of
Apodaca (case No. A795989). (§ 187, subd. (a).) As to defendant, the felony
complaint alleged a prior murder special circumstance (§ 190.2, subd. (a)(2)),
based on his 1971 conviction for the second degree murder of Allen Rothenberg.
As to Salazar, the complaint also charged him with the September 1985 murder of
another man, Ronald Eugene Diaz. In light of the prosecution‟s inability to locate




                                           27
crucial witnesses, the warrant was recalled and the case was dismissed as to
defendant on March 13, 1987.
       On March 25, 1987, the People refiled the first degree murder charge with
the prior murder special-circumstance allegation against defendant (case No.
A798706). At the April 8, 1987, preliminary hearing, the only eyewitness to
Apodaca‟s stabbing death, Robert De Alva, failed to appear. He had apparently
not been properly served with a subpoena necessary to procure an arrest warrant.
The magistrate declined to find good cause for a continuance, but permitted the
prosecution to proceed while it looked for De Alva. The prosecution next called
Richard Rivera, the owner of the upholstery shop where Apodaca was killed, who
testified he did not see the stabbing happen, but only saw Apodaca lying on the
floor afterwards. Later at the hearing, the pathologist who performed the autopsy
of Apodaca, Dr. Sara Reddy, testified that the cause of death was a stab wound to
the chest. She also opined that Apodaca suffered from a superficial neck wound
that was “most likely” caused by a different instrument.
       The following day, April 9, the prosecution advised the court that it could
not locate De Alva. After questioning whether there was a showing of malice to
support the murder charge against defendant, the magistrate held defendant to
answer for the lesser offense of manslaughter. On April 24, 1987, the prosecution
refiled the information under section 739, charging defendant with murder under
the previous case number, A798706, but the information did not include a special-
circumstance allegation. Ultimately, on June 23, 1987, the trial court granted
defendant‟s motion to dismiss the information under section 1382 after the
prosecution advised that it still could not locate De Alva.
       More than a decade later, on June 1, 1998, the prosecution filed a three-
count felony complaint, charging defendant in count 2 with the first degree murder
of Apodaca and alleging special circumstances of multiple murder and prior

                                         28
murder. The following year, on July 27, 1999, defendant filed a motion to dismiss
the Apodaca murder charge, contending that the prosecution had exceeded the
number of refilings permitted under section 1387. The prosecution conceded that
there were two dismissals of the Apodaca murder charge. However, it argued that
the third refiling was permissible under section 1387.1, and that there was a
showing of excusable neglect. Defendant, however, countered that because
section 1387.1 became effective after the Apodaca murder charge was dismissed
for a second time in June 1987, section 1387‟s two-dismissal rule governed and
precluded any additional refiling. Otherwise, to allow the prosecution to refile the
murder charge a decade later in 1998 would amount to a retroactive application of
section 1387.1 in violation of the ex post facto clause.
       Before ruling on these issues, the trial court held a hearing in August 1999
to determine whether the prior dismissals were due to the prosecution‟s “excusable
neglect.” (§ 1387.1.) The original prosecutor, detective, and investigator on the
Apodaca murder case each testified that despite their efforts, they could not locate
eyewitness De Alva in 1987. The trial court found that the prosecution had shown
excusable neglect under section 1387.1. Defendant alternatively argued that
section 1387.1 was not applicable in the first place because there had been three
prior dismissals of the Apodaca murder charge: the dismissal of the February 5,
1987, complaint on March 13, 1987; the reduction of the murder charge to
manslaughter in the March 25, 1987, complaint on April 9, 1987; and the
dismissal of the April 24, 1987, complaint on June 23, 1987. The trial court,
however, agreed with the prosecution that because defendant was held over on the
lesser necessarily included offense of manslaughter, the magistrate‟s refusal to
hold defendant for murder did not count as a dismissal for purposes of section
1387. In denying defendant‟s motion to dismiss, the trial court noted that its



                                         29
ruling included an implicit finding that section 1387.1 applied retroactively and
did not violate the ex post facto clause.
       Both the Court of Appeal and this court, respectively, denied defendant‟s
writ of prohibition and petition for review. The jury subsequently convicted
defendant of second degree murder. Defendant renews these claims on appeal.

                b. Legal principles
       Under section 1387, felony prosecutions are generally “subject to a two-
dismissal rule; two previous dismissals of charges for the same offense will bar a
new felony charge.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.)
Put another way, section 1387 allows for only one previous termination or
dismissal of a felony. (People v. Superior Court (Martinez) (1993) 19
Cal.App.4th 738, 745.) The Attorney General does not dispute that section 1387
would have prohibited the 1998 refiling of the Apodaca murder charge, which was
dismissed twice in 1987. The point of contention involves section 1387.1, which
was enacted in 1987 and became effective January 1, 1988. It provides an
exception to the “two-dismissal rule”: it permits the prosecution to file a violent
felony charge a third time if either of the prior dismissals were due to “excusable
neglect,” and the prosecution did not act in “bad faith.” (Ibid.; see Miller v.
Superior Court (2002) 101 Cal.App.4th 728, 739.) The question here is whether
by allowing the third filing of Apodaca‟s murder charge, the trial court applied
section 1387.1 retroactively in violation of the ex post facto clause.
       Although the Latin term “ex post facto” literally extends to any statute
passed “ „after the fact‟ ” (Collins v. Youngblood (1990) 497 U.S. 37, 41), “no
statute falls within the ex post facto prohibition unless „two critical elements‟
exist.” (John L., supra, 33 Cal.4th at p. 172.) The statute must be retroactive, and
must implicate at least one of the four categories described in Calder v. Bull



                                            30
(1798) 3 U.S. (3 Dall.) 386, 390. (John L., supra, 33 Cal.4th at p. 172.) To be
considered retroactive, the law must “ „change[] the legal consequences of an act
completed before [the law‟s] effective date,‟ namely the defendant‟s criminal
behavior.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288; accord, John L.,
supra, 33 Cal.4th at p. 172.) “In other words, the operative event for retroactivity
purposes, and the necessary reference point for any ex post facto analysis, is
criminal conduct committed before the disputed law took effect.” (Ibid.) As to
the second element, the four Calder categories encompass laws that
(1) criminalize conduct that was innocent when done; (2) aggravate or make
greater a crime than when committed; (3) change and increase the punishment;
and (4) alter the rules of evidence to reduce the legal sufficiency necessary to
support a finding of guilt. (See Calder, supra, 3 U.S. (3 Dall.) at p. 390; People v.
Brown (2004) 33 Cal.4th 382, 391.)

               c. Application
       As discussed, the parties agree that after the Apodaca murder charge was
dismissed a second time in June 1987, section 1387‟s two-dismissal rule barred
any additional refiling. The Attorney General, however, argues that the
subsequent enactment of section 1387.1 permitted defendant‟s prosecution for the
same offense 10 years later. Defendant counters that this third refiling in 1998
would amount to a retroactive application of section 1387.1 in violation of the
federal Constitution‟s ex post facto clause. Relying on Stogner v. California
(2003) 539 U.S. 607 (Stogner), defendant argues that section 1387 “operates
precisely like a statute of limitations,” and that by allowing the prosecution to
refile a third time under section 1387.1, the trial court unconstitutionally revived
an otherwise barred prosecution. We conclude that because a retroactive
construction of section 1387.1 would violate the ex post facto clause, the statute



                                          31
does not apply to cases that were twice dismissed before it was enacted. (Rust v.
Sullivan (1991) 500 U.S. 173, 190 [a statute “ „ought not be construed to violate
the Constitution if any other possible construction remains available‟ ”].)
       In Stogner, the high court majority held that a California statute extending
the limitations period for previously time-barred prosecutions “falls within the
literal terms” of the second Calder category, i.e., a “ „law that aggravates a crime,
or makes it greater than it was, when committed.‟ ” (Stogner, supra, 530 U.S. at
pp. 615, 613, italics omitted.) First explaining that this category‟s alternate
description refers to a statute “that „inflicts punishments where the party was not,
by law, liable to any punishment,‟ ” the high court articulated why this second
category fit: “After (but not before) the original statute of limitations had expired,
a party such as Stogner was not „liable to any punishment.‟ California‟s new
statute therefore „aggravated‟ Stogner‟s alleged crime, or made it „greater than it
was, when committed,‟ in the sense that, and to the extent that, it „inflicted
punishment‟ for past criminal conduct that (when the new law was enacted) did
not trigger any such liability.” (Id. at p. 613, italics omitted.) Likewise, because
defendant here was not by law liable for the twice-dismissed murder charges when
section 1387.1 became effective, any application of section 1387.1 would make
his crime “ „greater than it was, when committed‟ ” in violation of the ex post
facto clause. (Stogner, supra, 539 U.S. at p. 613; id. at pp. 613-614 [second
Calder category applies “where a new law inflicts a punishment upon a person not
then subject to that punishment, to any degree”].)
       Seeking to distinguish Stogner, the Attorney General emphasizes that there
is no statute of limitations on murder and an action “may be commenced at any
time.” (§ 799; see People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Because
section 1387 cannot provide a defendant charged with murder “amnesty” or a
“complete defense to prosecution” (Stogner, supra, 539 U.S. at p. 632), the

                                          32
passage of section 1387.1 as an exception to section 1387 would not
unconstitutionally “revive a long-forbidden prosecution.” (Stogner, supra, 539
U.S. at p. 632.) The Attorney General adds that the application of section 1387.1
is not contingent on time and is thus “completely unrelated” to a statute of
limitations; it merely provides a procedural remedial tool to avoid releasing
dangerous felons. (See People v. Massey (2000) 79 Cal.App.4th 204, 211.) We
are not persuaded. (See Collins v. Youngblood, supra, 497 U.S. at p. 46 [“by
simply labeling a law „procedural,‟ a legislature does not thereby immunize it
from scrutiny under the Ex Post Facto Clause”].)
       Though the twice-dismissed action against defendant was not time-barred
under section 1387, it was nevertheless barred when section 1387.1 was enacted.
Under Stogner, what matters is the government‟s attempt “to revive a long-
forbidden prosecution,” which the high court described as implicating a
“predominating constitutional interest.” (Stogner, supra, 539 U.S. at p. 632, italics
added; id. at p. 611 [unfairness where “government has refused „to play by its own
rules‟ ”].) If section 1387.1 permitted a third refiling of the Apodaca murder
charge, it would “retroactively withdraw[] a complete defense to prosecution after
it ha[d] already attached, and it [would do] so in a manner that allow[ed] the State
to withdraw this defense at will and with respect to individuals already identified.
[Citation.] „Unfair‟ seems to us a fair characterization.” (Stogner, supra, 539 U.S.
at p. 632.) We therefore construe section 1387.1 as not applying retroactively to
revive prosecutions that were barred by section 1387 when it was enacted. As a
result, the 1998 refiling of the Apodaca murder charge was improper.8



8     Given this conclusion, it is unnecessary to decide whether the Apodaca
murder charge was dismissed twice, as the Attorney General suggests, or three
                                                          (footnote continued on next page)


                                         33
        Given that defendant was improperly charged and subsequently convicted
of Apodaca‟s murder, we must reverse the judgment of conviction for second
degree murder, set aside the jury‟s true finding regarding the multiple murder
special circumstance, and, finally, reverse the judgment of death. Nevertheless,
we will discuss defendant‟s additional arguments to the extent they challenge the
validity of his convictions for robbery and the first degree murder of Facundo.
(See People v. Brents (2012) 53 Cal.4th 599, 614.)

             3. Trial court’s refusal to sever the murder charges from the robbery
                charge
        Before trial, defendant also moved to sever the two murder charges (count 1
[victim Facundo]; count 2 [victim Apodaca]) from the unrelated robbery charge
(count 3 [Spartan Burgers restaurant]). Defendant alleged that the robbery, which
occurred more than a decade after the murders of Facundo and Apodaca, had
nothing in common with them. Further, while the evidence that defendant
committed the robbery was “overwhelming,” the evidence that he committed the
two murders, in particular, the murder of Apodaca, was not. Although the
prosecution conceded that the evidence regarding the robbery would not otherwise
be cross-admissible in either murder trial, it argued there was “no real prejudice” if
the robbery count were not severed. The trial court denied defendant‟s motion to
sever, finding that joinder “would not rise to the level of serious prejudice.” On
appeal, defendant argues that the trial court‟s refusal to sever the unrelated robbery
charge denied him a fair trial by improperly bolstering the prosecution‟s weak



(footnote continued from previous page)

times, as defendant argues, or whether the prosecution made the requisite showing
of “excusable neglect” under section 1387.1.



                                          34
evidence of intent on both murder charges. (U.S. Const., 5th, 8th and 14th
Amends.; Cal. Const., art. I, §§ 15, 16.) For reasons that follow, we disagree.
       As relevant here, section 954 permits the joinder of “two or more different
offenses of the same class of crimes or offenses.” (§ 954; see People v. Soper
(2009) 45 Cal.4th 759, 771.) “[B]ecause consolidation or joinder of charged
offenses ordinarily promotes efficiency, that is the course of action preferred by
law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) However, a trial
court in its discretion may order the offenses to be severed “in the interests of
justice and for good cause shown.” (§ 954.)
       The often-cited factors for severance are: “(1) whether the evidence
relating to the various charges would be cross-admissible in separate trials, (2)
whether some of the charges are unusually likely to inflame the jury against the
defendant, (3) whether a weak case has been joined with a strong case or with
another weak case, and (4) whether one of the charges is a capital offense or the
joinder of the charges converts the matter into a capital case.” (People v. Elliott
(2012) 53 Cal.4th 535, 551.) If cross-admissibility of the evidence is present, that
is normally enough to justify the trial court‟s refusal to sever the charged offenses.
(Alcala v. Superior Court, supra, 43 Cal.4th at p. 1227.) However, the lack of
cross-admissibility is not necessarily dispositive for purposes of severance.
(People v. Ramirez (2006) 39 Cal.4th 398, 440; see § 954.1.) If there is no cross-
admissibility of the evidence, we evaluate the three remaining factors to determine
whether they demonstrate the trial court‟s abuse of discretion. (Alcala v. Superior
Court, supra, 43 Cal.4th at p. 1227.)
       For purposes of section 954, “[r]obbery and murder are the same class of
crime [because] both involve a common element of assault on the victim.”
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Because the statutory
requirement for joinder was met, defendant can only establish error based on the

                                          35
trial court‟s abuse of discretion, in other words, defendant must make a “ „clear
showing of prejudice.‟ ” (People v. Ramirez, supra, 39 Cal.4th at p. 439; Alcala v.
Superior Court, supra, 43 Cal.4th at p. 1220 [abuse of discretion if the court‟s
ruling falls outside the bounds of reason].) “We review the trial court‟s exercise
of discretion in light of the record before it when it ruled.” (People v. Elliott,
supra, 53 Cal.4th at p. 552.) In the end, even if a trial court‟s ruling on a motion
to sever was proper at the time it was made, we must still determine whether the
joinder of charges resulted in “ „gross unfairness depriving the defendant of due
process of law.‟ ” (People v. Soper, supra, 45 Cal.4th at p. 783.)
       As the prosecution conceded at trial, evidence of the robbery would not
have been cross-admissible with evidence of either murder. However, we
conclude that consideration of the other three factors do not demonstrate a
“ „clear showing of prejudice‟ ” based on the joinder of the robbery charge and the
Facundo murder charge, of which defendant stands convicted. (People v.
Ramirez, supra, 39 Cal.4th at p. 439.)
       In support of severance, defendant argues that the robbery of Spartan
Burgers was more inflammatory than the Facundo murder because the robbery
involved the use of a gun against a stranger. We disagree. Though it is debatable
whether a gun or a knife is a more dangerous weapon or whether the perpetrator
being a stranger or an acquaintance engenders more fear, defendant‟s robbery of
Spartan Burgers, significantly, did not involve any bodily injury. In stark contrast,
defendant brutally stabbed Facundo during his attack. Also, contrary to
defendant‟s contention, evidence of the robbery did not bolster the “weak”
Facundo murder case with respect to the issue of defendant‟s intent. Evidence that
defendant committed the murder was anything but weak. Though defendant flatly
denied robbing Spartan Burgers at trial, he confessed both before trial and on the
stand to killing Facundo. (See ante, at pp. 11-12.) As to the forensic evidence, the

                                          36
pathologist testified that all of Facundo‟s major stab wounds were “lethal.” As the
Attorney General contends, the location and number of wounds support
defendant‟s intent to kill his victim.. (See People v. Silva (1953) 41 Cal.2d 778,
782 [“The extent and location of a knife wound are pertinent to a determination of
the intent with which it was inflicted.”].)
       Because we are reversing the penalty judgment, the factor whether joinder
of the charges converted defendant‟s case from a noncapital case to a capital one is
no longer relevant in determining whether defendant suffered prejudice. Based on
the foregoing, we conclude that defendant has not made a clear showing of
prejudice based on the trial court‟s refusal to sever.
       In the end, nothing suggests that the joinder of the robbery charge to the
murder charges resulted in “ „gross unfairness‟ ” depriving defendant of due
process of the law. (People v. Soper, supra, 45 Cal.4th at p. 783.) Contrary to
defendant‟s suggestion, with respect to this severance issue, “a heightened analysis
is no longer called for” in capital cases. (Alcala v. Superior Court, supra, 43
Cal.4th at p. 1229, fn. 19; see § 790, subd. (b).)

           4. Trial court’s “revocation” of defendant’s pro. per. status
       Defendant claims that the trial court improperly terminated his in propria
persona status by relying on defendant‟s loss of library privileges in jail and the
seriousness of the charges against him as grounds for revocation. Alternatively, he
maintains that he did not “validly” sign the substitution of attorney form because
he misunderstood that the loss of library privileges would inevitably lead to such
revocation, and the trial court should have corrected his misapprehension of the
law. For reasons that follow, we find this claim meritless.
       After appearing in propria persona at his September 1998 preliminary
hearing, defendant informed the trial court at his arraignment that he wished to



                                          37
continue in propria persona. In reviewing his formal request, the trial court noted
that defendant had represented himself in three 1976 cases involving robbery,
attempted robbery, and assault with deadly weapon charges, and that he had been
convicted in two cases and acquitted in one. After the trial court explained the
difficulties and dangers of defendant representing himself, defendant confirmed he
wished to proceed in propria persona despite facing the death penalty. He,
however, requested that the court appoint advisory or standby counsel.9 The trial
court granted defendant‟s petition for in propria persona status at the October 13,
1998, arraignment hearing. The written petition included the statement, “I
understand that misconduct occurring outside of court may result in restriction or
termination of Pro Per privileges or my Pro Per status,” which defendant initialed.
       With Attorney Andrew Stein as advisory counsel, defendant continued to
represent himself at pretrial hearings until November 1998, when his in-custody in
propria persona privileges at the Los Angeles County jail were revoked. A search
of defendant‟s cell had yielded items from the law library, 750 milligrams of the
drug methocarbamol, and a black ballpoint pen, the possession of which violated
jail rules. On December 3, 1998, defendant appeared in court with Attorney Stein
after signing a substitution of attorney form. Stein informed the court that
defendant told him he was willing to relinquish his in propria persona status.
Defendant added: “Involuntarily, by the way.” Defendant explained that he said

9       The roles of advisory counsel and standby counsel are distinct. (See People
v. Blair (2005) 36 Cal.4th 686, 725.) The parties and the court used both terms to
describe Attorney Stein, though it appears Stein was to serve as advisory counsel.
(Ibid. [advisory counsel “is appointed to assist the self-represented defendant if
and when the defendant requests help”].) In any event, the distinction between
advisory and standby counsel is not crucial to this issue. (See People v. Butler
(2009) 47 Cal.4th 814, 828, fn. 6 [defense counsel served in both advisory and
standby capacities].)



                                         38
“involuntarily because I‟ve been told by numerous people that today my pro per
status was going to be revoked regardless of what transpires today.” Alleging that
the Sheriff‟s Department was not treating him fairly, defendant claimed he would
not get a fair trial representing himself and that “my only recourse is to give up my
pro per status and go with Mr. Stein.”
       Insisting on making an appropriate record, the prosecution emphasized that
even though defendant had lost his library privileges, this did not mean he could
not remain in propria persona and that Stein, as advisory counsel, could supply
any needed research material. The prosecution, however, added: “Obviously,
obviously, the appropriate choice to make on behalf of the defendant is to have a
lawyer represent him because it is a death penalty case.” When the trial court
asked defendant if he had signed the substitution form voluntarily and if he
understood what the form meant, defendant replied yes to both questions.
       Attorney Stein agreed with the prosecution that it was in defendant‟s best
interest to be represented by counsel and asserted that “without me as his attorney
or without an attorney, Mr. Trujeque would try to do what Penal Code section
1018 prohibits him from doing, which is tantamount to pleading guilty to the death
penalty.” He added: “Even with advisory counsel, in a death penalty case when
you don‟t have access to the law library, you‟re really not in a very good
position.” Attorney Stein informed the court he had talked to defendant at length
about the substitution of attorney form and believed defendant signed it
“intelligently, knowingly, and voluntarily.”
       However, when the prosecution later asked defendant what he wanted to
do, he said: “I want to represent myself and have access and be allowed to have
access to the law library.” After defendant conferred with Attorney Stein off the
record, Stein said “I think the court already said they‟ve accepted the substitution
of attorney.” The prosecution, who was “not happy with the record,” asked that

                                         39
the court make a ruling on the substitution of attorney, noting that documents
submitted “indicate that his pro per status should be, in fact, withdrawn from
privileges at the county jail.” After recounting why defendant‟s in-custody in
propria persona privileges had been revoked for cause, the court noted it had
inquired and confirmed that defendant did not sign the substitution of attorney
form out of duress or force. It accepted the form “[b]ased on the seriousness of
the charges, [and] the fact that a substitution of attorney was voluntarily and
willingly signed.” On appeal, defendant claims the trial court erroneously revoked
his in propria persona status in violation of the Sixth and Fourteenth Amendments.
(U.S. Const., 6th & 14th Amends; see Faretta v. California (1975) 422 U.S. 806
(Faretta).)
       Under Faretta, a defendant “must be free personally to decide whether in
his particular case counsel is to his advantage,” even though “he may conduct his
own defense ultimately to his own detriment.” (Faretta, supra, 422 U.S. at p.
834.) This right to self-representation extends to capital prosecutions. (People v.
Elliott, supra, 53 Cal.4th at p. 592.) However, the right “once asserted, may be
waived or abandoned.” (People v. Dunkle (2005) 36 Cal.4th 861, 909; see Indiana
v. Edwards (2008) 554 U.S. 164, 171 [self-representation right is not absolute].)
A defendant‟s waiver or abandonment of this constitutional right should be
voluntary, knowing, and intelligent (People v. D’Arcy (2010) 48 Cal.4th 257,
284); such waiver or abandonment may be inferred from a defendant‟s conduct.
(Id. at pp. 284-285; People v. Stanley (2006) 39 Cal.4th 913, 929; People v.
Dunkle, supra, 36 Cal.4th at p. 909.) A trial court may also revoke a defendant‟s
right to represent himself if he “deliberately engages in serious and obstructionist
misconduct.” (Faretta, supra, 422 U.S. at p. 834, fn. 46; see People v. Carson
(2005) 35 Cal.4th 1, 8-9 [misconduct not limited to in-courtroom behavior].)



                                         40
       We first point out that, contrary to defendant‟s assertion, the trial court did
not in fact revoke defendant‟s in propria persona status.10 Before it accepted
defendant‟s substitution of attorney form, the court noted only that defendant‟s in
propria persona privileges had already been revoked at an administrative hearing.
Defendant‟s chief complaint rather is that he mistakenly believed his loss of
library privileges would necessarily lead to the revocation of his in propria persona
status, a misapprehension the trial court failed to correct. (See People v. D’Arcy,
supra, 48 Cal.4th at pp. 286-287 [defendant allegedly relied on court‟s
misadvisement when relinquishing his Faretta right]; cf. People v. Carter (1967)
66 Cal.2d 666, 670 [defendant ineffectively waived right to counsel based on
mistaken belief reinforced by the court that he would have access to library].)
Thus, notwithstanding the fact he signed the substitution form and told the court
he understood what this meant, he argues he did not “validly” waive his right to
self-representation. At the very least, defendant claims it did not “ „reasonably
appear[]‟ ” that he wished to abandon his self-representation, and that the trial
court should have had a “ „personal dialogue‟ ” with defendant to determine
whether there was a waiver. (People v. Kenner (1990) 223 Cal.App.3d 56, 61.)
We disagree.



10      Defendant‟s reliance on People v. Butler, supra, 47 Cal.4th 814, is
therefore misplaced. In Butler, a trial court terminated a capital defendant‟s self-
representation after concluding the defendant‟s trial preparation and his ability to
marshal discovery materials in his defense would be limited. A jury subsequently
convicted the defendant of murder and sentenced him to death. We reversed the
jury‟s judgment and sentence, concluding that under Faretta “inmates still have
the right to represent themselves even when their ability to prepare is restricted in
custody.” (Id. at p. 827.) In that regard, defendant‟s claim that the trial court
erroneously relied on the seriousness of the charges to revoke his in propria
persona status also fails.



                                          41
       Assuming that defendant actually misunderstood the consequences of
losing his library privileges, any misunderstanding he had was sufficiently
clarified. (See People v. D’Arcy, supra, 48 Cal.4th at pp. 286-287 [no error where
trial court corrected itself after misadvising defendant he could insist counsel
present a certain defense if he relinquished right to self-representation].) The
prosecution explained to defendant several times that he had “choices,” i.e., either
he could remain in propria persona because Stein, as advisory counsel, could
provide him the necessary materials and research, or he could have Stein represent
him. Stein also informed the court that he spoke to defendant for “a good 45
minutes about what it meant” to sign the substitution form and he believed
defendant signed it “with an intelligent mind, voluntarily and knowingly.”
       Although the prosecution and Attorney Stein both made statements
suggesting defendant would be better off represented by counsel (see ante, at p.
39), these statements simply recognize the obvious challenges defendant would
face as a capital defendant proceeding in propria persona. We conclude they do
not demonstrate that defendant was compelled to waive his right to self-
representation. In isolation, defendant‟s own assertions that his “only recourse”
was to give up his status “involuntarily” may appear troubling; however, our
review of the record supports that defendant voluntarily and intelligently
relinquished his right. There is “no suggestion that defendant did not understand
what he was giving up in confirming that he wished to be represented by counsel,
or that he might in fact have wished to represent himself notwithstanding his
statements to the contrary . . . .” (People v. Dunkle, supra, 36 Cal.4th at p. 910.)
       Contrary to defendant‟s contention, the trial court was not required to
question defendant further, especially after it had already asked defendant if he
voluntarily signed the substitution form and if he understood what that meant.
Defendant was familiar not only with the criminal justice system but with his

                                          42
rights under Faretta, having represented himself several times and having even
obtained an acquittal. Indeed, the record portrays defendant as articulate,
assertive, and intelligent, capable of arguing fine points relating to investigative
funds and discovery matters. Rather than unequivocally expressing a desire to
represent himself, defendant‟s main concern appeared to be restoring his library
privileges: “I want to represent myself and have access and be allowed to have
access to the law library.” (See People v. Stanley, supra, 39 Cal.4th at p. 932
[Faretta right waived unless defendants “ „ “ „articulately and unmistakably
demand to proceed pro se‟ ” ‟ ”].) After it became evident that defendant‟s library
privileges would not be restored, the record does not indicate, nor does defendant
contend, that he raised the Faretta issue at trial again. Based on the circumstance
that defendant accepted Stein as counsel and that he did not renew his request for
self-representation, “we conclude he must further be found to have ultimately
abandoned his desire to invoke his Faretta rights in these capital murder
proceedings.” (People v. Stanley, supra, 39 Cal.4th at p. 933.)

       B. Guilt Phase

           1. Trial court’s ruling sustaining Charlie and Elena Trujeque’s
              assertions of the Fifth Amendment privilege
       Defendant claims that the trial court erred by allowing Charlie Trujeque to
make a blanket assertion of his Fifth Amendment right against self-incrimination
at both the guilt and penalty phases without making any inquiry into the validity of
the asserted right, and without considering defendant‟s constitutional rights to
present a defense, to compel the presence of witnesses and to present a case in
mitigation of the death penalty. (U.S. Const., 5th, 6th, 8th & 14th Amends.) He
adds the trial court also erred in permitting Elena Trujeque to assert her own Fifth
Amendment right at the penalty phase because she had waived the privilege by
testifying at the guilt phase. In light of our decision to reverse the penalty phase


                                          43
judgment, we will address only Charlie‟s assertion of the Fifth Amendment
privilege at the guilt phase.

                a. Factual background

                    1) Guilt phase
       At trial, in support of its argument that defendant had falsely implicated
Charlie and Elena Trujeque in the Facundo murder and was trying to shift the
blame to them, the prosecution intended to call both Charlie and Elena as
witnesses. Before they testified, the prosecution informed the trial court that the
Trujeques might need attorneys because “there may be Fifth Amendment issues.”
The trial court appointed attorneys, Hattie Harris and Anthony Garcia, for Elena
and Charlie, respectively. Harris confirmed that she had spoken to Elena and had
advised her client to take the stand.
       At the guilt phase, Elena testified about Charlene‟s relationship with
Facundo and her relationship with defendant. Though first denying that she and
Charlie had asked defendant to hurt Facundo, she admitted on cross-examination
that Charlie had told defendant to break Facundo‟s arms and legs. Elena conceded
she was “on board for that,” but did not think defendant would “stick a knife in his
chest.” She denied promising defendant any money for killing Facundo.
      After Elena testified, Charlie‟s appointed attorney, Anthony Garcia,
informed the court that he had advised his client to assert his Fifth Amendment
right against self-incrimination. On the stand, Charlie confirmed he was asserting
this right. Though it initially allowed the defense to ask Charlie about his
concerns for Charlene and her relationship with Facundo, and to ask about the
letters defendant wrote to Charlene, the trial court eventually ruled that it would
not force Charlie to testify at all in the guilt phase because any questions “taken in
context with everything that Mrs. Trujeque has said, can incriminate him.”



                                          44
Defense counsel, however, indicated they wished to call Charlie to the stand
during the penalty phase as a “family historian” to testify about defendant‟s family
history. The trial court reserved the issue.

                    2) Penalty phase
       As expected, defense counsel called Charlie to the stand at the penalty
phase and attempted to ask him questions about his siblings, including his
deceased brother (defendant‟s father), Manuel Trujeque. Charlie invoked the Fifth
Amendment privilege through his counsel, and refused to answer any questions.
The trial court declined defense counsel‟s request to order Charlie to answer
because it reasoned the questions would “lead to what the prosecution‟s contention
is, namely, that because of familial relationships, your client did what he did at the
behest of this witness and his wife.” The court did, however, allow defense
counsel to ask Charlie whether the prosecution had offered him immunity in the
Facundo case for asserting his Fifth Amendment rights. Both Charlie and the
prosecutor denied there was any such agreement.
       After defense counsel proffered the type of questions they would ask
Charlie (such as questions about defendant‟s father‟s temper, drug use, and history
of physical violence toward defendant‟s mother when she was pregnant with
defendant), Charlie reiterated his intent to assert the Fifth Amendment on all these
questions. Defense counsel, however, asserted the jury was entitled to hear this
information from Charlie about “how Tommy Trujeque got here today. It‟s
violence breeds violence. It‟s drug addicts breed drug addicts. It all fits in with
what the expert witnesses would testify, and he is the family historian from the
Trujeque side.” Rejecting defendant‟s claim that information on the Trujeque
family could not have any factual nexus to the Facundo murder, the trial court
sustained Charlie‟s assertion of the privilege at the penalty phase as well.



                                          45
       As an alternative to Charlie testifying about defendant‟s family history,
defense counsel proposed to call Elena to the stand as a family historian under
Evidence Code sections 1310 and 1311. However, her appointed attorney, Hattie
Harris, was “hit with the bombshell” that defense counsel had suggested Elena had
perjured herself by denying that she ever visited defendant in prison. Based on the
possibility that Elena could “incriminate herself for a new and different charge” of
perjury, Harris indicated she would advise her client to assert her Fifth
Amendment privilege to any questions regarding familial relationships at the
penalty phase. On the stand, Elena confirmed she would refuse to answer any
questions about her husband‟s family or defendant‟s childhood.
       On appeal, defendant claims the trial court erred in permitting Charlie to
assert his Fifth Amendment privilege at both the guilt and penalty phases, and in
allowing Elena to assert her privilege at the penalty phase. He contends that the
Trujeques‟ assertions of the privilege excluded “critical mitigating evidence”
about defendant‟s father and his father‟s family history. In deciding whether the
trial court erred in sustaining the privileges of these witnesses, we apply an
independent standard of review. (People v. Seijas (2005) 36 Cal.4th 291, 304
(Seijas).) For reasons that follow, we find no error with respect to Charlie‟s
assertion of the Fifth Amendment privilege at the guilt phase. As noted, given our
reversal of the penalty judgment, we do not address defendant‟s challenges to
Charlie‟s and Elena‟s assertions of the privilege at the penalty phase.

               b. Legal principles
       “It is a bedrock principle of American (and California) law, embedded in
various state and federal constitutional and statutory provisions, that witnesses
may not be compelled to incriminate themselves. In an oft-cited case, the high
court stated that this privilege „must be accorded liberal construction in favor of



                                         46
the right it was intended to secure.‟ ” (Seijas, supra, 36 Cal.4th at p. 304, quoting
Hoffman v. United States (1951) 341 U.S. 479, 486 (Hoffman).) The test from
Hoffman provides that “[t]o sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.” (Id. at pp. 486-487.) In that
regard, a witness‟s answers need not in themselves support a conviction under a
criminal statute, but may “furnish a link in the chain of evidence” needed to
prosecute the witness for a crime. (Id. at p. 486.) Ultimately, a trial court may
reject an assertion of the privilege only when it appears to the court “ „perfectly
clear, from a careful consideration of all the circumstances in the case, that the
witness is mistaken, and that the answer[s] cannot possibly have such tendency‟ to
incriminate.” (Id. at p. 488; Seijas, supra, 36 Cal.4th at p. 305 [Evid. Code, §
40411 incorporates the Hoffman test construed “broadly in favor of the
privilege”].)
       A witness, however, may not make a blanket assertion of the privilege
against self-incrimination. (See U.S. v. Goodwin (5th Cir. 1980) 625 F.2d 693,
701.) A witness‟s “say-so does not itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified . . . .” (Hoffman, supra, 341
U.S. at p. 486.) In other words, a trial court “must make „a particularized inquiry,
deciding, in connection with each specific area that the questioning party wishes to

11      The provision states: “Whenever the proffered evidence is claimed to be
privileged under Section 940 [the privilege against self-incrimination], the person
claiming the privilege has the burden of showing that the proffered evidence might
tend to incriminate him; and the proffered evidence is inadmissible unless it
clearly appears to the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404,
italics added.)



                                          47
explore, whether or not the privilege is well-founded.‟ [Citation.] Although the
witness may have a valid claim to the privilege with respect to some questions, the
scope of that privilege may not extend to all relevant questions. The witness may
be totally excused only if the court finds that he could „legitimately refuse to
answer essentially all relevant questions.‟ [Citation.] ” (U.S. v. Goodwin, supra,
625 F.2d at p. 701.) This has long been the rule in California in both criminal and
civil proceedings. (Wadford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.)

               c. Application
       With respect to Charlie‟s privilege, basic questions about his family
background and his relationship to defendant, though seemingly innocuous, could
have exposed Charlie to prosecution for solicitation of murder or as an accessory
to murder. Defendant testified that Charlie had paid him to kill Facundo, and
Charlie‟s wife, Elena, confirmed that Charlie had asked defendant to break
Facundo‟s arms and legs. As the prosecution explained, the defense theory was
that Charlie “knew by saying to [defendant], go take care of it, take care of the
problem, that as a family member, he would do that. He would do the killing, he
would take care of the problem for the family. . . . The mere fact that this witness
is related to [defendant] in any way is incriminating to this witness in the context
of those facts.” The trial court added that defendant‟s proposed question, for
instance, about when Charlie‟s parents died “by itself perhaps can‟t incriminate
him, but following that question there will be other questions” that will ultimately
lead to the conclusion that defendant killed Facundo at Charlie‟s request. The
existence of this family relationship, in other words, provided a “link in the chain
of evidence” supporting defendant‟s motive in the Facundo murder. (Hoffman,
supra, 341 U.S. at p. 486.) Under these circumstances, it does not clearly appear




                                          48
that the proffered testimony could not possibly have a tendency to incriminate
Charlie. (See Evid. Code, § 404; Seijas, supra, 36 Cal.4th at p. 307.)
       Nevertheless, defendant contends that there were other subjects that Charlie
could have safely testified to, but that the trial court “made no inquiry at all” as to
the proper scope of the questioning. The record belies this assertion. At the guilt
phase, the trial court explored other possible areas for questioning, specifically
asking defense counsel, “Other than your desire to question this witness about
whether or not he read the contents of the letter, what other areas do you want to
go into with this witness?” The court initially allowed counsel to ask Charlie
about Charlene‟s relationship with Facundo. The court, however, later determined
that any questions, in light of Elena‟s testimony that Charlie had enlisted
defendant to hurt Facundo, could incriminate Charlie. In sum, the record supports
that the trial court made a particularized inquiry about Charlie‟s assertion of the
privilege before determining Charlie “could „legitimately refuse to answer
essentially all relevant questions‟ ” at the guilt phase. (U.S. v. Goodwin, supra,
625 F.2d at p. 701.)
       Based on the foregoing, we conclude the trial court did not err in sustaining
Charlie‟s assertion of the Fifth Amendment privilege. Even assuming that the trial
court erred, we conclude any error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Defendant asserts
that any error was not harmless because Charlie‟s assertion of the privilege
prevented the jury from hearing evidence that would have reduced the charge or
acquitted defendant of first degree murder. Specifically, defendant claims that had
Charlie testified, defense counsel could have questioned him on how the murder of




                                          49
Charlene‟s cousin, Vicki, by an abusive boyfriend12 intensified the concerns
Charlie and defendant had for Charlene, which in turn would have supported
defendant‟s claim of imperfect defense of others. Defendant also sought to elicit
testimony that Charlie did not believe defendant‟s letters to Charlene were
inappropriate, thus undercutting the prosecution‟s theory that defendant killed
Facundo because defendant had feelings for Charlene.
       Much of the evidence defendant sought to elicit from Charlie was already
before the jury. Elena testified not only that she and Charlie were concerned about
Charlene‟s abusive relationship with Facundo, but that Charlie had specifically
asked defendant to hurt Facundo. The trial court, in excluding evidence of Vicki‟s
murder under Evidence Code section 352, told defense counsel “you‟ve described
Mr. Facundo as the despicable, cowardly wife beater that he was, and I think that‟s
enough.” Charlie‟s testimony would have simply added to the evidence the jury
already heard. (People v. Brown (2003) 31 Cal.4th 518, 576 [Evid. Code, § 352
“permits the exclusion of evidence on the ground that it is cumulative”].) As such,
any error in excluding the testimony of Charlie was harmless beyond a reasonable
doubt. (Chapman, supra, 386 U.S. at p. 24.)

           2. Trial court’s refusal to instruct on imperfect defense of another or
              necessity relating to the Facundo murder
       Defendant‟s main argument with respect to the Facundo murder was that he
acted to protect his cousin, Charlene, from Facundo‟s further abuse and possibly
from death. Based on this argument, defense counsel requested that the trial court
instruct the jury with a series of instructions relating to the imperfect defense of
another. (CALJIC Nos. 5.13, 5.14, 5.15, 5.16, 5.17.) Alternatively, the defense

12    The evidentiary issue regarding Vicki‟s murder is discussed separately
below. (See post, at pp. 56-57.)



                                          50
also sought jury instructions on mistake of fact and necessity. (CALJIC Nos. 4.35,
4.43.) When the trial court stated that “based on the evidence that I heard” there
was no threat of imminent harm, defense counsel repeatedly argued that it was up
to the jury to decide whether there was imminent harm or not. However, the trial
court refused to give any of the requested instructions because it found that based
on “the totality of the evidence that has been presented” there was no threat of
imminent danger, and that “[i]f that fear was present, it certainly did not extend to
the degree of committing a homicide.” Further, the court also pointed out that
these instructions were, in fact, “negate[d]” by the evidence, including defendant‟s
statement to Los Angeles County Sheriff‟s Deputy Frank Durazo.
       On appeal, defendant argues that the trial court‟s failure to give these
instructions denied him his right to present a defense, his right to a jury trial, and
his right to a reliable penalty determination in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the federal Constitution and analogous provisions
of the state Constitution. He reiterates that it was up to the jury, not the court, to
determine the credibility and validity of the imperfect defense of others. In
particular, he maintains that it was the jury‟s province to determine whether he had
an unreasonable belief that Charlene was in peril. With respect to his request for
an instruction on the necessity defense, defendant similarly posits that the factual
dispute regarding the immediacy of the danger Facundo posed, i.e., whether
Charlene was injured weeks before the murder or shortly before, should have been
resolved by a properly instructed jury and not the court. For reasons that follow,
we conclude this claim lacks merit.

                a. Imperfect defense of others
       “[O]ne who kills in imperfect defense of others — in the actual but
unreasonable belief he must defend another from imminent danger of death or



                                           51
great bodily injury — is guilty only of manslaughter.” (People v. Randle (2005)
35 Cal.4th 987, 997 (Randle) [recognizing imperfect defense of others].) To
satisfy the imminence requirement, “[f]ear of future harm — no matter how great
the fear and no matter how great the likelihood of the harm — will not suffice.
The defendant‟s fear must be of imminent danger to life or great bodily injury.
„ “[T]he peril must appear to the defendant as immediate and present and not
prospective or even in the near future. An imminent peril is one that, from
appearances, must be instantly dealt with.‟ . . . Put simply, the trier of fact must
find an actual fear of an imminent harm.” (In re Christian S. (1994) 7 Cal.4th 768,
783.) Because the reasonableness (or unreasonableness) of this claim is tested
from the defendant‟s perspective, however, a trier of fact may consider a victim‟s
prior threats and violence to corroborate the defendant‟s testimony that he feared
for his or another‟s life. (Randle, supra, 35 Cal.4th at pp. 999-1000; see People v.
Davis (1965) 63 Cal.2d 648, 656 [“The immediate issue was not the truth of the
matters reported to him but whether he had cause to believe them and, if so,
whether it was reasonable for him to predicate a fear thereon.”].)
       Imperfect defense of others, like imperfect self-defense, is not a true
defense, but a shorthand description for a form of voluntary manslaughter. (See
People v. Elmore (2014) 59 Cal.4th 121, 134; Randle, supra, 35 Cal.4th at p. 997
[defendant lacked malice required for murder].) It follows that voluntary
manslaughter arising from the imperfect defense of another is a lesser included
offense of the crime of murder. (See Randle, supra, 35 Cal.4th at p. 1003; see also
People v. Barton (1995) 12 Cal.4th 186, 200-201.) If supported by substantial
evidence, a trial court has the duty to instruct on a lesser included offense.
(People v. Duff (2014) 58 Cal.4th 527, 561.) “The duty applies whenever there is
evidence in the record from which a reasonable jury could conclude the defendant
is guilty of the lesser, but not the greater, offense. [Citations.] That voluntary

                                          52
manslaughter is a lesser included offense of murder is undisputed.” (Ibid.)
Ultimately, “[i]t is for the court alone to decide whether the evidence supports
instruction on a lesser included offense.” (People v. Prince (2007) 40 Cal.4th
1179, 1264.)
       On appeal, we independently review whether a trial court erroneously failed
to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680,
705.) We conclude that the trial court did not err in refusing this instruction
because there was no evidence that defendant actually, but unreasonably, believed
Facundo presented an imminent threat of physical harm to Charlene when
defendant killed him. (See Randle, supra, 35 Cal.4th at p. 997.)
       By defendant‟s own account (established through both his trial testimony
and the recorded statement), he was paid by Charlie and Elena to “take care of the
problem” and kill Facundo, leading to the inescapable conclusion that he had
planned all along to kill him regardless of any imminent danger or threat Facundo
posed. This conclusion is bolstered by evidence that on the day of the murder,
defendant appeared angry because of Charlene‟s black eye and repeatedly asked
Charlene whether Facundo would be coming by later because defendant wanted to
“meet him and talk to him.” When Facundo came to Charlie and Elena‟s house to
pick up Charlene, defendant asked if they would drop off him and their cousin,
Raymond Guzman, at the house of Raymond‟s sister, Pat Perez, which they did.
Rather than showing any apprehension, much less fear, of Facundo, defendant‟s
actions demonstrated he wanted to be physically near Facundo and have access to
him. Moreover, shortly before defendant struggled with Facundo and fatally




                                         53
stabbed him, there was no evidence suggesting that the victim had acted in any
threatening manner.13
       Even without considering whether defendant was paid to kill Facundo, the
evidence strongly supports that defendant killed him mainly because of Facundo‟s
past physical abuse of Charlene. Defendant testified that Facundo “deserved it.
He had it coming . . . [¶] For beating up my cousin.” He also admitted he
“couldn‟t wait to kill him. I didn‟t want to wait,” and that he “could have done it
later if I wanted to.” Defendant‟s plan was “to stab him in the heart.” “The only
plan I had was to kill him. It didn‟t matter where.” Facundo‟s past abuse of
Charlene and his threats to her were unaccompanied by any intention or ability to
carry them out at the time he was killed; thus, they are insufficient to show an
imminent threat justifying an instruction on manslaughter as a lesser included
offense. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1094-1095.)
       Indeed, the record is replete with defendant‟s admissions revealing his
brazen and single-minded determination to kill Facundo for physically abusing
Charlene. In defendant‟s own words, “[t]he only plan I had was to kill him” and
he “could have done it later if I wanted to.” In short, there was no evidence that
defendant actually believed — whether reasonably or unreasonably — that he
faced an imminent peril that he had to “ „ “instantly deal[] with” ‟ ” when he killed
Facundo. (In re Christian S., supra, 7 Cal.4th at p. 783; see People v. Michaels
(2002) 28 Cal.4th 486, 530-531.) Thus, his claim based on imperfect defense of
another necessarily fails.


13     Though Facundo apparently smoked PCP both before picking up Charlene
and on the drive to Pat‟s house, there is no indication that he either became
violent, as defendant suggests, or was incapacitated, as the People assert, due to
his smoking PCP that day.



                                         54
       Even if defendant exaggerated his own culpability in order to receive the
death penalty, there is no other evidence suggesting that the imperfect defense of
another was otherwise plausible. There is nothing to suggest his so-called
“misguided effort” to protect Charlene from Facundo was based on anything other
than his desire to punish Facundo for his past abuse. (See People v. Mendoza
(2000) 24 Cal.4th 130, 174 [“Speculation is insufficient to require the giving of an
instruction on a lesser included offense.”].)

               b. Necessity
       Defendant‟s related claim that the trial court erred in refusing to instruct on
the defense of necessity (CALJIC No. 4.43) is equally meritless. “The defense of
necessity generally recognizes that „ “the harm or evil sought to be avoided by [the
defendant‟s] conduct is greater than that sought to be prevented by the law
defining the offense charged.” ‟ [Citation.] The defendant, who must have
possessed a reasonable belief that his or her action was justified, bears the burden
of proffering evidence of the existence of an emergency situation involving the
imminence of greater harm that the illegal act seeks to prevent. [Citations.]”
(People v. Coffman & Marlow (2004) 34 Cal.4th 1, 100.) “To justify an
instruction on the defense of necessity, there must be evidence sufficient to
establish that defendant violated the law (1) to prevent a significant evil, (2) with
no adequate alternative, (3) without creating a greater danger than the one avoided,
(4) with a good faith belief in the necessity, (5) with such belief being objectively
reasonable, and (6) under circumstances in which he did not substantially
contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029,
1035 [deciding factual predicate of defendant‟s necessity defense “insufficient as a
matter of law”]; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164 [necessity
defense is “ „very limited‟ ” and “ „represents a policy decision not to punish an



                                          55
individual despite proof of the crime‟ ”].) There was no evidence that defendant
sought to prevent any imminent harm or that he faced any emergency situation
when he killed Facundo.14

              3. Trial court’s refusal to admit evidence that defendant’s cousin had
                 been killed by an abusive boyfriend
       During the cross-examination of Elena at the guilt phase, defense counsel
tried to elicit testimony about the murder of Charlie‟s niece (and Charlene and
defendant‟s cousin), Vicki, who was reportedly stabbed and killed by an abusive
boyfriend. Counsel asserted that because of Vicki‟s murder, Elena and Charlie
were afraid that Facundo would kill Charlene and talked to defendant about their
fears, which in turn affected defendant‟s state of mind about the threat he
perceived Facundo posed to Charlene. The trial court, however, responded that
Elena had already admitted that she felt Charlene‟s life was in danger because of
Facundo. Further, the prosecution maintained that because Elena was not present
when Vicki was killed, she lacked personal knowledge about how or why Vicki
was killed.
       Though the trial court sustained the prosecution‟s objections based on lack
of foundation and hearsay, defense counsel repeatedly tried to question Elena
about Vicki‟s murder, prompting the court to say: “I think you‟re plowing the
same ground until it‟s now very fine sand. . . . [¶] . . . [Y]ou‟ve described Mr.
Facundo as the despicable, cowardly wife beater that he was, and I think that‟s
enough.” While recognizing defendant‟s argument about the relevance of Elena‟s
state of mind, the trial court ultimately prohibited further questions about Vicki‟s


14     Defendant makes similar claims regarding the imperfect defense of others
and the necessity defense with respect to the Apodaca murder, which we do not
discuss given our reversal of the judgment of conviction.



                                          56
murder under Evidence Code section 352. On appeal, defendant claims that the
trial court‟s exclusion of this evidence violated his constitutional right to present a
defense, i.e., the imperfect defense of another. (See U.S. Const., 5th, 6th, 8th, 14th
Amends.)
       We conclude the trial court did not abuse its discretion in limiting the
questioning about Vicki‟s murder. (See People v. Minifie (1996) 13 Cal.4th 1055,
1070 [exclusion of evidence under Evid. Code § 352 subject to abuse of discretion
standard].) As noted above, Elena testified that she did not know how or why
Vicki was killed. Further, she stated defendant never brought up Vicki at any
time, including when he admitted to Elena that he had stabbed Facundo with a
knife. In other words, as the Attorney General argues, Elena “was not the
appropriate witness to discuss Vicki‟s death, and the details of Vicki‟s death were
irrelevant and prejudicial because there was no evidence at all that they factored
into Facundo‟s murder.” We conclude that the trial court properly excluded
evidence of Vicki‟s murder under Evidence Code section 352. (See People v.
Minifie, supra, 13 Cal.4th at p. 1071.)
       Contrary to defendant‟s suggestion, by prohibiting questions to Elena about
Vicki‟s killing, the trial court did not thereby prevent defendant from presenting a
defense that he had a heightened anxiety that Facundo would kill Charlene. In
fact, the jury heard from defendant himself that Vicki‟s boyfriend had stabbed and
killed her. Though defendant admitted Facundo “deserved to die because he was
beating up” Charlene, defendant did not know whether Charlene and Facundo had
the same kind of relationship as Vicki and her boyfriend. Thus, by his own
admission, defendant made no connection between Facundo‟s murder and Vicki‟s
killing.




                                          57
           4. Trial court’s admission of expert testimony from a pathologist who
              did not perform autopsies of victims
       Relying on Crawford v. Washington (2004) 541 U.S. 36, and its progeny,
defendant claims that the forensic pathologist‟s testimony on the two autopsies
performed by nontestifying pathologists violated his confrontation rights under the
Sixth Amendment. Specifically, defendant maintains that the conclusions in the
autopsy reports were testimonial hearsay, and that the prosecution made no
showing that the two pathologists who conducted the autopsies were unavailable
to testify. He adds that the pathologist‟s surrogate testimony precluded him from
meaningfully testing the nontestifying pathologist‟s “honesty, proficiency, and
methodology.” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 321.) We
conclude that we need not decide this claim on the merits because any error was
harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
       At trial, Dr. Eugene Carpenter, Jr., a forensic pathologist who had worked
for the Los Angeles County coroner‟s office for 11 years and had performed over
4,000 autopsies, testified about the autopsies of both Max Facundo and Raul
Apodaca. Dr. Carpenter did not perform or attend either autopsy. Rather, Dr. Eva
Heuser performed the autopsy on Facundo on June 23, 1986, and Dr. Sara Reddy
performed the autopsy on Apodaca on January 25, 1987. Dr. Reddy also testified
and was cross-examined at the preliminary hearings of both defendant and his
codefendant at the time, Jesse Salazar, in 1987. Dr. Heuser and Dr. Reddy had
both retired from the Los Angeles County coroner‟s office at the time of
defendant‟s trial in 1999.
       Before testifying, Dr. Carpenter reviewed the autopsy reports on Facundo
and Apodaca, the reports‟ attachments, and related photographs. (The record does
not reflect that either autopsy report was admitted into evidence.) Dr. Carpenter
testified that Facundo suffered at least eight stab wounds, mostly to the chest area



                                         58
and the lungs. He explained that Facundo‟s pulmonary artery, aorta, and liver
were all injured and that “[e]ach of these injuries is a lethal wound. Each one is
capable of causing death to a body within a minute or so.” After reviewing the
autopsy report, photographs, and items contained in the report, Dr. Carpenter
testified he was “in agreement” with Dr. Heuser‟s conclusion that Facundo‟s cause
of death was stab wounds.
       As an initial matter, we note that defendant has not forfeited this issue by
failing to object at trial to Dr. Carpenter‟s testimony, and the Attorney General
does not argue otherwise. (See People v. Harris (2013) 57 Cal.4th 804, 839-840.)
In Crawford, the high court held that a criminal defendant has the Sixth
Amendment right to confront and cross-examine any witness who offers a
testimonial out-of-court statement against the defendant. (Crawford, supra, 541
U.S. at pp. 50-56.) Thereafter, with certain exceptions, the high court extended
Crawford‟s holding to forensic reports available for use at trial (Melendez-Diaz v.
Massachusetts, supra, 557 U.S. 305), and laboratory reports (Bullcoming v. New
Mexico (2011) 564 U.S. __ [131 S.Ct. 2705]). (See People v. Dungo (2012) 55
Cal.4th 608, 617-619 (Dungo) [identifying two critical components — formality
and primary purpose — of testimonial out-of-court statements].)
       In Dungo, we explained that statements in an autopsy report describing a
nontestifying pathologist‟s observations about the condition of the victim‟s body
are not testimonial because the “primary purpose” of recording such facts does not
relate to a criminal investigation. (Dungo, supra, 55 Cal.4th at p. 621, italics
omitted.) We also described these statements, which “merely record objective
facts,” as being “less formal than statements setting forth a pathologist‟s expert
conclusions” about the victim‟s cause of death. (Id. at p. 619.) In Dungo, it was
unclear whether the pathologist‟s description of the victim‟s body was based
solely on the autopsy photographs, solely on the nontestifying pathologist‟s

                                         59
autopsy report, or on a combination of both. (Id. at pp. 615.) Nonetheless,
because the pathologist did not describe the conclusions of the nontestifying
pathologist, we had no occasion to decide “whether such testimony, if it had been
given, would have violated the defendant‟s right to confront” the nontestifying
pathologist. (Id. at p. 619; but see People v. Edwards (2013) 57 Cal.4th 658, 704-
708.)
        In the present case, Dr. Carpenter gave his own opinions about the causes
of death of Facundo and Apodaca. He testified he “made up my own mind” after
reviewing both the autopsy reports and photographs. Dr. Carpenter underscored
that he “never said that I told the jury what [Drs. Heuser and Reddy] saw and what
they thought. I just read their autopsy report, not their minds.” At the same time,
he also described to the jury these nontestifying pathologists‟ conclusions
regarding Facundo‟s cause of death, including expressing whether he agreed with
these conclusions. (See People v. Edwards, supra, 57 Cal.4th at p. 707.) Dr.
Carpenter explained that he was “in agreement” with “the conclusion by Dr.
Heuser that the cause of death [of Facundo] was as a result of stab wounds.”
        Even assuming error, we conclude it was harmless beyond a reasonable
doubt under Chapman, supra, 386 U.S. at page 24. (See People v. Edwards,
supra, 57 Cal.4th at p. 707 [even if testifying pathologist‟s statements about
another pathologist‟s conclusion violated confrontation clause, there was no
prejudice]; see also People v. Capistrano (2014) 59 Cal.4th 830, 874.) Regarding
victim Facundo, because Dr. Carpenter independently agreed with Dr. Heuser‟s
opinions and because neither the cause of death, i.e., stab wounds, nor the source
of the wounds, i.e., a knife, was in dispute at trial, “no prejudice was possible
under any standard.” (People v. Edwards, supra, 57 Cal.4th at p. 707.)
        Because we are reversing defendant‟s conviction for the second degree
murder of Apodaca (see, ante, at p. 34), we do not discuss whether Dr. Carpenter‟s

                                          60
testimony regarding Dr. Reddy‟s findings on Apodaca‟s death was harmless error
with respect to this murder conviction. However, with respect to Facundo‟s
murder and the Spartan Burgers robbery, convictions we are affirming, we
conclude that any error from the admission of Dr. Carpenter‟s testimony was
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. p. 24.) Dr.
Reddy‟s findings, to which Dr. Carpenter testified, concerned only Apodaca‟s
autopsy. For that reason, the jury‟s guilty verdicts on the Facundo murder and
robbery counts were “ „ “surely unattributable to the error.” ‟ ” (People v. Pearson
(2013) 56 Cal.4th 393, 463.)

           5. Trial court’s admission of defendant’s redacted letter to the Los
              Angeles County District Attorney
       Over defendant‟s objections at both the guilt and penalty phases, the trial
court granted the prosecution‟s request to admit a letter defendant wrote to then
Los Angeles County District Attorney Gil Garcetti in September 1998. In the
letter, defendant admitted he murdered both Apodaca and Facundo while “fully
aware of all of my mental faculties” and urged Garcetti to seek the death penalty
against him.
       In moving to exclude this letter under Evidence Code section 352, defense
counsel claimed the letter had little to no probative value and was prejudicial and
cumulative to other admitted evidence. The trial court, however, agreed with the
prosecution‟s assertion that the letter “scream[ed] premeditation and deliberation”
and spoke “volumes to his mental state.” It also found defendant‟s letter to be
“probably one of the most literal and coherent letters and eloquent letter, in its
own way, that I‟ve read in a long time.” In the end, although the trial court
concluded the letter was admissible, it granted defense counsel‟s request to redact
certain portions for the jury. At the guilt phase, the trial court redacted those
portions that discussed defendant‟s lack of remorse for the murders, two other


                                          61
murders defendant allegedly committed in prison and got away with, his intent to
kill in prison if he did not get the death penalty, and defendant‟s self-
representation. Over defendant‟s renewed objection at the penalty phase, the court
also admitted the letter into evidence, but redacted only that portion discussing
defendant‟s two other murders that he “didn‟t get caught for.”
       Despite the redactions, defense counsel argued the letter still contained
objectionable statements, most notably the following: “If I had the opportunity to
do it over I would cut off their heads and send „em both to their family!”; “both of
those cowards deserved what they got: death and an early expiration in life, to say
the least!”; “the two (2) cowards that I am proud of taking out”; characterizing the
murders as “all a big game, and the only reason I lost part of the game, is because I
got caught, that‟s all”; referring to his gang moniker “El Killer De Varrio White
Fence.” Ultimately, the trial court agreed with the prosecution‟s argument that
statements that the victims got what they deserved and that defendant would do it
again, were relevant to undercut defendant‟s claim that the killings were based on
provocation or imperfect defense of others. The court later agreed with the
prosecution that the “cut off their heads” statement was relevant to prove
premeditation and to rebut any argument that either murder was voluntary
manslaughter.
       On appeal, defendant renews his claim that this “highly inflammatory”
letter to Garcetti should have been excluded altogether under Evidence Code
section 352 and that the trial court abused its discretion in failing to so. In arguing
that the letter was “riddled with hyperbole, untruths, and deliberately provocative
and offensive statements designed to appeal to jurors‟ fears and emotions,”
defendant claims that his expressed desire to receive the death penalty made the
letter unreliable and thus diminished its probative value. (See People v. Coleman
(1985) 38 Cal.3d 69, 85 [victim‟s letter deemed unreliable because she had “a

                                          62
motive to misrepresent or exaggerate the conduct of the accused”]; see also People
v. Maury (2003) 30 Cal.4th 342, 433 [polygraph evidence‟s doubtful reliability
outweighed any probative value].) He asserts that the admission of this letter
violated his constitutional rights to a fair trial and to a fair and reliable sentencing.
(U.S. Const., 5th, 6th, 8th & 14th Amends.)
       A trial court‟s ruling under Evidence Code section 352 is reviewed under
the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th
1100, 1121.) “[A] court need not expressly weigh prejudice against probative
value or even expressly state that it has done so,” if the record shows the court was
aware of its duty and undertook such Evidence Code section 352 balancing.
(People v. Taylor (2001) 26 Cal.4th 1155, 1169.) We conclude that even if the
court abused its discretion in admitting the letter, any error was harmless. With
regard to the Facundo murder and Spartan Burgers robbery, both convictions that
we shall affirm, there was overwhelming evidence — apart from this letter — that
defendant committed these crimes. (See ante, pp. 2-6, 9.)

            6. Prosecution’s impeachment of defendant with the Rothenberg
               murder conviction
       As discussed earlier, we conclude that defendant‟s 1971 conviction for the
Rothenberg murder was obtained in violation of the double jeopardy clause,
requiring us to set aside the prior murder special-circumstance finding. (See ante,
at p. 26.) In a separate claim, defendant asserts that because this constitutionally
invalid conviction was also used to impeach defendant‟s trial testimony, his
murder convictions should be reversed as well. Defendant talks globally about
reversals of his “convictions,” which include robbery, but he focuses mainly on
the impeachment‟s impact on his convictions for murder.
       After the trial court confirmed with defendant that he wished to testify in
his defense against the advice of counsel, defense counsel moved to “sanitize the


                                           63
30-year-old murder conviction” of Rothenberg right after defendant took the
stand. Defense counsel argued that the 1971 murder was extremely remote in time
(and committed when defendant was just 16 years old), not probative of a
witness‟s credibility, and highly prejudicial because defendant was on trial for two
other murders. Based on these reasons, counsel urged the court to preclude this
impeachment evidence under Evidence Code section 352. Defense counsel also
added that there were other “numerous crimes where they can show [defendant‟s]
readiness to do evil without having to say he has a prior murder conviction.” In
denying defendant‟s request to exclude the prior conviction, the trial court
explained, among other things, that murder is a crime of moral turpitude, and that
the prior murder was not remote in time because of defendant‟s “pattern of
continued criminal conduct.” On cross-examination, the prosecution impeached
defendant with the 1971 second degree murder conviction, along with a number of
other felony convictions.
       On appeal, defendant claims the prosecution improperly used this
constitutionally invalid murder conviction to impeach his credibility, and that, in
any event, the conviction should have been excluded under Evidence Code section
352. As with defendant‟s claim regarding the prior murder special circumstance,
the Attorney General asserts that defendant has forfeited the double jeopardy issue
by failing to object to the prior conviction specifically on that ground. As before,
we reach the merits of this claim.
       Turning to the merits, we agree with defendant that there was error: “We
are convinced that the use of a constitutionally invalid prior conviction to impeach
testimonial credibility is improper, and that to allow such impeachment is error
under California law. . . . We think it equally clear that the utilization of such a
conviction, at the trial of a subsequent offense, for any purpose leading to a
conviction for such subsequent offense, is violative of the due process clause of

                                          64
the Fourteenth Amendment.” (People v. Coffey (1967) 67 Cal.2d 204, 218-219.)
       To determine whether we should reverse the remaining murder conviction,
the issue is what, if any, prejudice defendant suffered as a result of the error.
Because this error is of “federal constitutional dimension” (People v. Coffey,
supra, 67 Cal.2d at p. 218), the beyond a reasonable doubt standard of prejudice
under Chapman, supra, 386 U.S. 18, applies. (People v. Coffey, supra, 67 Cal.2d
at pp. 218-219 [error is not “per se prejudicial”].) In this context, the Chapman
“rule requires reversal if, upon an examination of the entire record, it appears
reasonably possible that the error might have materially influenced the jury in
arriving at its verdict, and the error must be considered harmless if the likelihood
of material influence is not within the realm of reasonable possibility. In the
circumstances of the instant case, the application of the indicated standard requires
that we direct our attention to defendant‟s courtroom testimony.” (People v.
Coffey, supra, 67 Cal.2d at pp. 219-220.) For reasons that follow, we conclude the
error was harmless.
       As noted above, in addition to the invalid Rothenberg murder conviction,
the prosecution impeached defendant with other felony convictions, which
defendant testified consisted of “robberies, murder, burglary and assault with a
deadly weapon.” Specifically, he admitted on the stand — without reference to
any specific underlying facts of the crimes — to the following: a 1977 conviction
for two counts of assault with a deadly weapon; a 1979 conviction for attempted
murder; a 1989 conviction for four counts of robbery; and a 1998 conviction for
robbery. With respect to the Facundo murder charge he was facing, defendant
testified (sometimes emphatically) that he killed the victim. Given defendant‟s
courtroom admissions and his extensive criminal history, we conclude it does not
appear “reasonably possible” that the jury‟s consideration of the additional second



                                          65
degree murder conviction “materially affected” its decision to convict defendant of
the first degree murder of Facundo. (People v. Coffey, supra, 67 Cal.2d at p. 220.)
       Although defendant argues that the prosecution improperly used the
Rothenberg murder conviction to establish his propensity to commit murder, the
trial court instructed the jury to consider defendant‟s prior convictions “only for
the purpose of determining the believability of that witness.” (CALJIC 2.23.) We
presume the jury understood and followed this instruction. (See People v. Homick
(2012) 55 Cal.4th 816, 873.) Likewise, defendant‟s Evidence Code section 352
claim, which is reviewed under the reasonable probability standard for prejudice
(People v. Watson (1956) 46 Cal.2d 818, 836), affords him no relief. Because we
conclude there was no prejudice under the stricter Chapman standard, there can be
no prejudice under the Watson standard.

           7. Correction to the abstract of judgment
       Defendant contends that the abstract of judgment erroneously lists his
sentence for the Apodaca murder as 25 years to life under the three strikes
sentencing law. This contention (though accurate) is moot because we are
reversing the judgment of conviction. Nonetheless, the abstract of judgment also
indicates that defendant has no credit for time served, which contradicts the
minute order from that sentencing hearing stating defendant was given total credit
for 576 days in custody. On remand, the trial court should make any necessary
corrections regarding defendant‟s custody credits.




                                          66
                                 III. CONCLUSION
       For the foregoing reasons, we reverse the judgment of conviction for the
second degree murder of Apodaca, set aside the prior murder and multiple murder
special-circumstance findings, reverse the judgment of death, and remand to the
trial court for resentencing in accordance with this opinion. On remand, the trial
court should consider whether to impose any sentence enhancements that were
originally stayed pending imposition of the death judgment.
       In all other respects, the judgment is affirmed.

                                                          CHIN, J.


WE CONCUR:

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




                                         67
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Trujeque
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S083594
Date Filed: May 28, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Patrick Couwenberg

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Christina A.
Spaulding, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Eric J. Kohm, Deputy Attorneys General,
for Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christina A. Spaulding
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Eric J. Kohm
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2273




                                               2
