Filed 12/24/15 (reposting to provide page numbers)




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S115872
           v.                        )
                                     )                       Los Angeles County
RAMON SANDOVAL, JR.,                 )                     Super. Ct. No. BA240074
                                     )
           Defendant and Appellant.  )
____________________________________)


        Defendant Ramon Sandoval, Jr. was convicted following a jury trial of the
premeditated murder of Long Beach Police Detective Daryle Black and the
attempted murder of his partner, Detective Rick Delfin. The jury found that the
murder was committed with the special circumstances that the victim was a peace
officer engaged in the lawful performance of his duties and that it was committed
for the purpose of preventing a lawful arrest, by means of lying in wait, and to
further the activities of a criminal street gang. The jury fixed the penalty at death.
This appeal is automatic. (Pen. Code, § 1239, subd. (b); all undesignated statutory
references are to this code.) We reverse the special circumstance finding that
Sandoval committed the murder by means of lying in wait, but otherwise affirm
the judgment.
                                             I. FACTS
        On February 9, 2001, a Los Angeles County Grand Jury returned an
indictment against defendant Ramon Sandoval and codefendants Adolfo
Bojorquez and Miguel Camacho. Bojorquez and Camacho are not parties to this
appeal. The indictment charged Sandoval with the April 2000 murder of Long
Beach Police Detective Daryle Black. (§ 187, subd. (a).) It also charged the
special circumstances that the victim was a peace officer engaged in the lawful
performance of his duties (§ 190.2, subd. (a)(7)), that the murder was committed
for the purpose of preventing a lawful arrest (§ 190.2, subd. (a)(5)) and by means
of lying in wait (§ 190.2, subd. (a)(15)), and that defendant was an active
participant in a criminal street gang and committed the murder to further the
activities of the gang (§ 190.2, subd. (a)(22)).
       The indictment further charged Sandoval with the willful and premeditated
attempted murder of Long Beach Police Detective Rick Delfin while Detective
Delfin was in the lawful performance of his duties (§§ 664, subds. (e), (f); 187,
subd. (a)) and assault with an assault weapon on a peace officer in the lawful
performance of his duties (§ 245, subd. (d)(3)). The indictment also charged
Sandoval with assaulting Maria Cervantes with an assault weapon (§ 245,
subd. (d)(3)). The indictment alleged that Sandoval committed several of these
offenses for the benefit of a street gang (§ 186.22, subd. (b)(1)) and that he
personally discharged an assault weapon (former § 12022.53, subds. (c), (d),
(e)(1)).
       A.     Guilt Phase
       Trial began on September 23, 2002. In his opening statement, defense
counsel acknowledged that Sandoval was a gang member and that he had
confessed he shot and killed Detective Black and injured Detective Delfin, adding:
―The thing we are contesting was that Ramon Sandoval did not lie in wait on Lime
Avenue to kill Detective Black. We think the evidence will show that was strictly
a spontaneous, bizarre event that just occurred. Had those officers come by one
minute earlier or one minute later, they wouldn‘t have been shot.‖
                                           2
         According to Sandoval‘s confession, which was tape-recorded and played
for the jury, he was a member of the Barrio Pobre gang and goes by the moniker
―Menace.‖ On April 29, 2000, Sandoval and about 15 other members of the
Barrio Pobre gang were drinking outside an abandoned house in Compton when a
car pulled up. Someone in the car yelled ―Fuck BP‖ and ―East Side,‖ and began
shooting at them. No one was hit, and the car drove away. Sandoval and his
fellow gang members believed the shooting was committed by a rival gang named
East Side Paramount.
         Sandoval and several members of his gang decided to retaliate. Sandoval
retrieved an assault weapon, an AR-15, from a fellow gang member, and they
went to the home of Vincent Ramirez, known as ―Toro,‖ who was a ―shot caller‖
or leader of the East Side Paramount gang. They knew that Toro was having a
birthday party at his house on Lime Avenue between 19th and 20th Streets in
Long Beach. They intended to knock on the door and kill Toro.
         Sandoval, carrying the assault weapon, rode in a red Chevrolet Beretta
driven by Juan Camacho (―Pipas‖), the brother of codefendant Miguel Camacho
(Camacho or ―Rascal‖). They followed Camacho, Adolfo Bojorquez (―Grumpy‖),
and Julio Del Rio (―Sparky‖), who were riding in a Honda. They pulled to the
curb near Toro‘s house on the west side of Lime Avenue, facing south. Sandoval
got out of the car, still carrying the assault weapon, and saw Camacho walking on
the sidewalk on the east side of the street towards Toro‘s house. Sandoval was
about to join him when he saw a police car driving down Lime Avenue, so
Sandoval ducked behind the Beretta. The car was unmarked, but Sandoval
recognized it as a police car, in part because of the spotlights mounted on the
sides.
         Sandoval saw that there were two police officers in the car, and they were
looking at Camacho. Sandoval knew Camacho was on parole and was violating
                                           3
the terms of his parole because he was armed with a .45-caliber handgun. To
―save‖ Camacho from ―going to jail,‖ Sandoval stood up and opened fire on the
police car. Sandoval said the officers ―didn‘t know what to do‖ because ―[t]hey
didn‘t know where . . . the bullets were coming from‖ ―[‘c]ause they didn‘t see
me.‖
       Detective Delfin confirmed that he did not see Sandoval until Sandoval
began shooting. Detective Delfin testified that he was driving an unmarked police
car southbound on Lime Avenue accompanied by Detective Black. They were
part of the gang unit. He noticed a car that was double-parked ―about midblock‖
and saw Camacho standing ―by the back bumper.‖ Detective Delfin ―slowed up
and stopped about two car lengths behind that car‖ as Camacho began walking
east across the street. Detective Delfin continued to look to his left, watching
Camacho. He was about to get out of the car and talk to Camacho when ―someone
up to my right . . . started unloading on our police car with [what sounded like] an
assault weapon.‖ He said, ―I did not know anybody was on that side of the car,
sir, until they started shooting.‖ ―First shot, I don‘t think it did anything. But the
ones following the first shot shattered the windows; window exploded, broke. The
car was getting torn apart inside the interior. Debris is flying. Then I caught a
round on the side of the head.‖
       Jimmy Falconer was driving on Lime Avenue and witnessed the shooting.
He said there was nothing the police officers could do: ―It was sort of like a kind
of ambush. I‘m not saying set-up ambush, but if it was gonna be an ambush, this
would be the way to do it. They didn‘t have time. They were preoccupied with
[Camacho]. They were getting ready to jack him across the street, but then the
gunfire opened up from across the — from this other side of the street . . . .‖
―[T]hey didn‘t see it coming.‖


                                           4
       Officers responding to Detective Delfin‘s radio call for assistance took
Detective Black to the hospital, where he died from a gunshot wound to his head.
Detective Delfin had been shot in the head and right knee. Police found 28
expended shell casings at the crime scene.
       Maria Cervantes also was shot. She had been lying in her bed in her home
on Lime Avenue when she was shot in her leg and abdomen. She was about eight
months pregnant, but her unborn child was not injured.
       About 20 minutes after the shooting, police found Camacho hiding in the
backyard of a nearby house. Camacho assisted police ―in trying to locate the
shooter‖ in this case.
       On May 2, 2000, police executed a search warrant for Sandoval‘s residence
and arrested Sandoval. A red Chevrolet Beretta was parked behind the residence,
and an AR-15 assault weapon, covered by a towel, was found behind the stove.
Ballistics tests revealed that this was the rifle that had been used to shoot
Detectives Black and Delfin.
       B.     Penalty Phase
       The first penalty phase commenced on October 23, 2002, but the court
declared a mistrial after the jury was unable to reach a verdict. The penalty phase
retrial began on March 17, 2003.

                i.   Prosecution Case
       Many of the witnesses who had testified during the guilt phase testified at
the second penalty phase and described the circumstances of the crime. This
testimony included information about the Barrio Pobre gang, Sandoval‘s and
Camacho‘s participation in the gang, and the gang meeting just before the
shooting on Lime Avenue. Detective Delfin gave a detailed description of the
shooting.


                                           5
       The prosecution also introduced evidence of an uncharged crime in which
Sandoval and Camacho killed Jesus Cervantez and attempted to kill Steve Romero
at a McDonald‘s restaurant in Lynwood six months before Detective Black‘s
murder. The victims in that incident were members of a tagging crew called Just
Kicking It, who earlier had committed a drive-by shooting aimed at Sandoval and
his gang. Sandoval admitted he used an AK-47 against the crew members to
retaliate for the drive-by shooting.
       As part of the prosecution‘s victim impact evidence, several of Detective
Black‘s friends and siblings testified to his gentle demeanor and noted his
compassion toward and desire to have children. Detective Delfin also testified to
the emotional strain caused by the knee injury he sustained during the shooting,
which rendered him unable to work. His wife testified to the emotional and
physical impact of the incident on both her husband and their three young
children.

            ii. Defense Case
       Sandoval was born on August 8, 1981 to parents who had emigrated to the
United States from Mexico. He was 18 years old at the time of the Lime Avenue
shooting.
       Sandoval‘s family moved around frequently and struggled to pay the bills
during his childhood. Members of Sandoval‘s extended family testified to his
behavior as a child, describing him as a ―normal boy,‖ ―a good child,‖ and ―very
easy going.‖ Multiple witnesses described his soccer abilities as a young teenager.
Sandoval‘s soccer coach also described a family situation that ―maybe affected
[defendant]‖: during the last season in which Sandoval played soccer, his father
began an affair with the coach‘s niece.




                                          6
       Sandoval‘s mother testified to her love for her son. She explained that
gangs had been present in their neighborhood while he was growing up. In
addition to moving homes, she and her husband twice sent Sandoval to live with
relatives during his teenage years in an effort to remove him from gang influence.
The defense presented evidence of the increasing pressure Sandoval felt to join a
gang, his efforts to protect his younger brother from gangs, and the overall
influence of gangs on poor urban youth.
                                II. PRETRIAL ISSUES

       A. Motion to Suppress Evidence
       Sandoval argues that the trial court erred by relying upon extrajudicial
findings in denying his motion to suppress evidence and in failing to conduct an
evidentiary hearing. Defendant seeks ―a remand for a full and fair hearing.‖
       Before trial, Sandoval filed a motion to suppress the statements he made to
police following his arrest, to quash the warrant used to search his residence and
automobile, and to suppress all evidence obtained as a result of these searches. He
asked for a de novo hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154
(Franks). The warrant was based upon the 12-page declaration of Long Beach
Police Officer Steven F. Smith, which was executed on April 30, 2000, and
described in detail the murder of Detective Black and the shooting of Detective
Delfin and Maria Cervantes the night before, including the fact that there were 17
bullet holes in the right side of the officers‘ police car and 28 shell cases from a
.223-caliber firearm recovered at the crime scene. These types of shells would
have been ―fired from an AR-15 assault rifle or a Ruger Mini-14.‖ Another
officer had interviewed Detective Delfin at the hospital, and Detective Delfin said
he had stopped his police car behind a parked car. A young ―male Hispanic‖ was
standing by the open driver‘s side door, and another ―male Hispanic‖ left from the


                                           7
passenger side of the parked car and ran across the street. Detective Delfin then
heard gunfire from a semi-automatic weapon, such as an AK-47, and was struck
by bullets in his knee and head.
       Officer Smith declared that shortly after the shooting, Camacho was found
―hiding in the courtyard‖ of a nearby residence. Camacho first claimed he had
been chased by a group of black males and told the officers they could ― ‗[c]heck
with Detective Delfin,‘ ‖ who could vouch for his credibility. When told that
Detective Delfin was one of the officers who had been shot, Camacho ―broke
down in tears‖ and told the officers that ―a fellow member of the Compton Barrio
Pobre gang, named Ramon Sandoval,‖ was responsible for the shooting. Camacho
admitted he was on parole from the California Youth Authority. His record
showed he had been convicted of assault with a deadly weapon (§ 245, subd.
(a)(1)), and there was a warrant for his arrest for a parole violation.
       Camacho told the officer that Sandoval was armed with an AR-15 assault
weapon. Camacho crossed the street and began walking as the police car arrived.
When the police car stopped, Camacho heard several loud gunshots and saw
Sandoval ―firing the AR-15 into the passenger side door area of the car.‖
Camacho ran and hid in the courtyard, where police found him. Camacho
identified Sandoval from a photo lineup and led officers to Sandoval‘s house.
Officers confirmed that Sandoval lived at that residence.
       The affidavit recounted that a vehicle driven by Jimmy Falconer was
making a U-turn nearby when the shooting started. Falconer had seen the officers‘
car pass him and knew it was a police car because it had spotlights mounted on
each side. Falconer saw a Hispanic male cross to the east side of the street, and
the police car moved toward him ―as if the officers were going to make contact
with that subject.‖ Falconer noticed another Hispanic male on the west side of the
street, leaning over the roof of a car and pointing a gun at the passenger side of the
                                           8
police car. The Hispanic male, whom Falconer described as about 25 years old
with a shaved head and a mustache, fired multiple rounds at the police car.
Falconer turned his car around and left the area.
       The affidavit noted that Camacho‘s statement that he crossed to the east
side of the street was corroborated by the fact that both Detective Delfin and
Falconer had seen a Hispanic male cross to the east side of the street.
       The search warrant was issued and was executed the following morning,
resulting in Sandoval‘s arrest and the discovery of an AR-15 assault weapon that
ballistics tests later determined to be the murder weapon. Following his arrest,
Sandoval confessed to the crimes.
       Citing People v. Campa (1984) 36 Cal.3d 870, Sandoval argued that the
search warrant was not supported by probable cause because ―the magistrate had
no reason to conclude that Camacho gave reliable information‖ linking him to the
crime: ―Camacho, a convicted criminal on parole, found in extremely suspicious
circumstances during the investigation of a notorious crime, had every reason to
try to throw the suspicion off himself, and on to another person.‖ Sandoval also
argued that the affidavit in support of the warrant had two ―glaring‖ omissions.
First, the affidavit did not reveal that Camacho was a notorious gang member who
was suspected of committing two other homicides. Second, the affidavit did not
reveal that the day before, another Long Beach police officer had obtained a
warrant on a different theory, ―that black Crip members in Long Beach had killed
Detective Black in retaliation for the April 28, 2000 killing of Crip gang member
Billy James Johnson.‖
       The prosecution responded that, unlike in Campa, police thought Camacho
was ―a witness to the crime who knew the shooter, saw the crime, and was
distraught when informed that one of the victims was detective Delfin.‖ Also
unlike in Campa, the affidavit described the circumstances in which Camacho
                                          9
made his statements, and those statements were corroborated by the statements of
Detective Delfin and Falconer. The prosecution argued in the alternative, citing
United States v. Leon (1984) 468 U.S. 897, that even if the warrant was defective,
the evidence should not be suppressed because the officers acted in good faith.
       The prosecution argued that Sandoval‘s claim of material omissions in the
affidavit was insufficient to warrant an evidentiary hearing because the motion to
suppress evidence failed to show how the affiant ―could have known that another
police agency was investigating Camacho‘s possible involvement in other crimes.‖
Nor was an evidentiary hearing required by Sandoval‘s claim that the affidavit
should have disclosed that an earlier search warrant had been obtained on the
theory that Crips gang members might have committed the murder as retaliation.
The fact that law enforcement had investigated other leads had no bearing on
whether probable cause existed to issue the warrant to search Sandoval‘s home
and car. Sandoval did not show that these facts were deliberately omitted or
omitted with reckless disregard of the truth.
       Regarding the claim that the affidavit contained material omissions, the
trial court noted that defense counsel was ―making a lot of assumptions‖ — for
example, that Detective Smith knew that Camacho was being investigated for
other homicides and deliberately withheld that information. Defense counsel
replied, ―That‘s correct,‖ but asked for ―a hearing, very brief hearing, and if
Detective Smith wants to come in and say I had no idea Camacho was just out of
Youth Authority; I had no idea there was a warrant out for him . . . ; I had no idea
he was wanted for a Carson murder, that‘s fine. [¶] If that‘s reasonable, and the
court believes it, then it should deny the motion, but seems to me that the
assumptions we‘re making in this motion are the more reasonable ones . . . .‖
       The trial court denied the motion. The court found that ―the magistrate had
overwhelming evidence to issue the warrant and not just probable cause.‖
                                          10
Camacho‘s statements were corroborated in part by the statements of Detective
Delfin and Falconer: ―Those three statements about what they each saw dove-
tailed with one another.‖ The trial court added that ―Camacho was not a suspect,
. . . the police were treating him as a witness at that time.‖ The affidavit did not
contain material omissions. ―[T]he magistrate was faced with information that
Mr. Camacho was not an innocent citizen informant by any stretch. [¶] . . .
[T]here was a statement about the fact he was on CYA parole; that he had been
arrested for a parole violation, and there was a warrant out; that he had a
conviction for assault with [a deadly weapon under section] 245A1; that he was a
gang-banger . . . . So the magistrate already knew that he had a criminal history.
Whether or not any other information of other violations would have added to the
magistrate‘s decision is highly questionable.‖
       In denying Sandoval‘s request for an evidentiary hearing, the trial court
quoted at length from Franks, supra, 438 U.S. 154, and said: ―It‘s clear to this
court that counsel had not made that Franks showing that is mandated under the
law. In fact, as you have stated consistently, these are assumptions you‘re making
based on your interpretation of what you knew about the case and not based on
anything that the police knew. So it‘s denied.‖
       A week later, on September 26, 2002, Sandoval filed a ―Supplemental
1538.5 Motion‖ that asked the trial court to ―reopen‖ the motion to suppress
evidence ―in order to take into account evidence of which the defendant was
unaware at the time of the initial motion.‖ The supplemental motion asserted that
defense counsel had just received a reporter‘s transcript of a hearing in a motion to
suppress evidence brought by Camacho. Based upon this transcript, defense
counsel argued that Camacho‘s statements to the police were involuntary because,
among other reasons, Camacho had been denied counsel and had been deprived of
sleep. The trial court ruled: ―I have reviewed the motion, and . . . I don‘t see
                                          11
where any of this changes the circumstances . . . . Most of the statements . . . Mr.
Camacho made during . . . his own motion to try and suppress his statement. My
recollection is the court found him to be far less than a credible witness. In fact,
most of what he said was absurd. . . . I don‘t see how the additional statements
that the defense offered would warrant a Franks hearing and would be grounds for
altering the ruling the court has already given.‖
       Defendant argues that he was erroneously denied an evidentiary hearing
under Franks‘s holding that ―where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit, and if
the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant‘s request.‖
(Franks, supra, 438 U.S. at pp. 155–156.) The high court added that ―the rule
announced today has a limited scope, both in regard to when exclusion of the
seized evidence is mandated, and when a hearing on allegations of misstatements
must be accorded.‖ (Id. at p. 167.) Reiterating the ―presumption of validity with
respect to the affidavit supporting the search warrant,‖ Franks explained that ―[t]o
mandate an evidentiary hearing, the challenger‘s attack must be more than
conclusory and must be supported by more than a mere desire to cross-examine.
There must be allegations of deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by an offer of proof. . . .
Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained. . . . [A]nd if, when material
that is the subject of the alleged falsity or reckless disregard is set to one side,
there remains sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.‖ (Id. at pp. 171–172, fn. omitted.)


                                           12
       This court has applied the rule in Franks to deliberate omissions of material
facts from an affidavit for a search warrant: ―A defendant can challenge a search
warrant by showing that the affiant deliberately or recklessly omitted material
facts that negate probable cause when added to the affidavit.‖ (People v. Eubanks
(2011) 53 Cal.4th 110, 136.) We have recognized that a claim that material facts
were omitted from an affidavit differs from a claim that the affidavit contains
falsehoods: ―Though similar for many purposes, omissions and misstatements
analytically are distinct in important ways. Every falsehood makes an affidavit
inaccurate, but not all omissions do so. An affidavit need not disclose every
imaginable fact however irrelevant. It need only furnish the magistrate with
information, favorable and adverse, sufficient to permit a reasonable, common
sense determination whether circumstances which justify a search are probably
present. [Citations.]‖ (People v. Kurland (1980) 28 Cal.3d 376, 384.) ―[A]n
affiant‘s duty of disclosure extends only to ‗material‘ or ‗relevant‘ adverse facts.‖
(Ibid.) ―[F]acts are ‗material‘ and hence must be disclosed if their omission would
make the affidavit substantially misleading. On review under section 1538.5, facts
must be deemed material for this purpose if, because of their inherent probative
force, there is a substantial possibility they would have altered a reasonable
magistrate‘s probable cause determination.‖ (Id. at p. 385.)
       ―We review the denial of a Franks hearing de novo. [Citation.]‖ (People v.
Panah (2005) 35 Cal.4th 395, 457.) Sandoval was not entitled to an evidentiary
hearing because he made only conclusory allegations that admittedly were based
upon assumptions. This is not sufficient. (See Franks, supra, 438 U.S. at p. 171
[―Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.‖].) Sandoval demonstrated no
―more than a mere desire to cross-examine.‖ (Ibid.; People v. Panah, supra, 35
Cal.4th at p. 456.)
                                         13
       No evidentiary hearing would have been required even if Sandoval had
supported his claims with affidavits or sworn statements because the material that
he asserts was deliberately omitted from the affidavit was not material; its absence
did not ―make the affidavit substantially misleading.‖ (People v. Kurland, supra,
28 Cal.3d at p. 385.) We address each of Sandoval‘s claims in turn.
       Sandoval argues that the affidavit should have disclosed that police had
earlier obtained a warrant from a different judge to search the home of a member
of the Crips gang who lived on Lime Avenue, on the theory that Detective Black
was murdered in retaliation for an officer-involved shooting of a Crips gang
member. The affidavit in support of this earlier warrant stated that on April 28,
2000, the day before Detectives Black and Delfin were shot, a Long Beach police
officer shot and killed Crips gang member Billy James Johnson during an armed
confrontation. Johnson had lived with his mother at 1992 Lime Avenue. The next
day, a Long Beach police officer was told, ―you killed one of my homies last
night, there‘s gonna be payback.‖ Later that day, Detectives Black and Delfin
were shot on the 1900 block of Lime Avenue. Police obtained a search warrant
for the residence of Johnson‘s mother at 1992 Lime Avenue.
       The fact that police initially suspected that the Crips had shot Detectives
Black and Delfin in retaliation for an officer-involved shooting of a Crips gang
member the day before had no bearing on the existence of probable cause to
search Sandoval‘s home. During the investigation of a crime, police often will
pursue theories that do not turn out to be true. The police would have been remiss
if they had not investigated whether Detective Black‘s murder was linked to the
death the day before of a gang member who had lived on the same block where the
officers were shot. The issuance of this earlier warrant was irrelevant to the
question of whether there was probable cause to search Sandoval‘s residence and


                                         14
automobile, and the omission of this evidence from the affidavit did not render it
substantially misleading.
       Sandoval also argues that the affidavit failed to disclose that the police
deemed Camacho ―a suspect, and not a mere witness,‖ that Camacho was a
suspect in two other pending homicide investigations, and that he was a member
of the Barrio Pobre gang. The record before us does not support these allegations.
The affidavit disclosed that Camacho was a member of the Barrio Pobre gang, that
he had been convicted of assault with a deadly weapon and was on parole from the
California Youth Authority, and that there was a warrant for his arrest for violating
parole. Sandoval produced no evidence that the police considered Camacho a
suspect rather than a witness. It was not until Sandoval was arrested and
implicated Camacho that the police considered Camacho a suspect. Finally,
Sandoval produced no evidence that the affiant knew Camacho was a suspect in
two unrelated homicides. Sandoval has shown no more than that it was possible
that the affiant could have discovered that fact; Sandoval made no showing that
the affiant actually knew that fact. As the trial court observed, ―the magistrate
already knew that [Camacho] had a criminal history. Whether or not any other
information of other violations would have added to the magistrate‘s decision is
highly questionable.‖
       Sandoval‘s supplemental motion to suppress evidence, like the original
motion, was not supported by affidavits or sworn statements. It alleged that
Camacho had filed a motion to suppress evidence in his separate prosecution on
the ground that his statements to police were involuntary. Sandoval argued that
his statements to police were the fruit of Camacho‘s involuntary statements, that
the affidavit failed to disclose that Camacho‘s statements were involuntary, and
that it failed to disclose that a sergeant in the Los Angeles County Sheriff‘s
Department had earlier spoken to a sergeant in the Long Beach Police Department
                                         15
gang unit, which allegedly showed that the Long Beach Police Department had
access to information about homicides investigated by other law enforcement
agencies.
       The supplemental motion did not show that any of the allegations in
Camacho‘s motion to suppress evidence were true. It did not show that
Camacho‘s statements were involuntary or that the affiant knew that fact but failed
to disclose it. And the allegation that a sergeant in the Los Angeles County
Sheriff‘s Department earlier had spoken to a sergeant in the Long Beach Police
Department gang unit had little if any relevance. Even if there had been some
communication between these two agencies, it did not establish that the affiant
knew but failed to disclose that Camacho was a suspect in two homicide
investigations pending in other jurisdictions.
       Sandoval further argues that ―the trial court improperly relied on the factual
findings it made during the evidentiary hearing on [Camacho‘s] motion to
suppress.‖ The trial court observed that several of the factual allegations made in
the supplemental motion to suppress evidence were ―statements which Mr.
Camacho made during . . . his own motion to try and suppress his statement.‖ The
court stated: ―My recollection is the court found him to be far less than a credible
witness. In fact, most of what he said was absurd.‖ The court ruled: ―I don‘t see
how the additional statements that the defense offered would warrant a Franks
hearing and would be grounds for altering the ruling the court has already given.‖
       Sandoval argues that he ―should not have been bound by critical credibility
determinations made by the court in a hearing to which he had not been a party.‖
Sandoval forfeited this claim by failing to object on this ground in the trial court.
(People v. Pearson (2013) 56 Cal.4th 393, 416.) The claim also lacks merit.
Sandoval relies on cases discussing judicial notice (Plumley v. Mockett (2008) 164
Cal.App.4th 1031, 1050–1051; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,
                                          16
1568; U.S. v. Jones (11th Cir. 1994) 29 F.3d 1549, 1553) and informing a jury of
facts found in a judicial opinion (U.S. v. Sine (9th Cir. 2007) 493 F.3d 1021, 1034;
Harmer v. State (Neb. 1937) 276 N.W. 378, 380 [―a judgment in another case
finding a fact now in issue is ordinarily not admissible‖].) In the present case,
Sandoval relied upon Camacho‘s testimony at a hearing over which the trial court
judge recently had presided. He cites no authority stating it was improper for the
trial court to rely upon the fact that this testimony had not been credible.

       B. Death Qualification of Prospective Jurors
       Sandoval argues that excusing for cause prospective jurors who indicated
they could not consider imposing the death penalty ―resulted in impanelment of a
jury biased in favor of conviction and imposition of the death penalty,‖ thereby
violating ―his jury trial right, his right to due process, his right to equal protection,
and it inhibited the exercise of his right to be free from cruel and/or unusual
punishment.‖ (Fns. omitted.) Defendant acknowledges that this court and the
United States Supreme Court have considered and rejected this argument
(Lockhart v. McCree (1986) 476 U.S. 162, 176–177; People v. Chism (2014) 58
Cal.4th 1266, 1286) but raises the issue nonetheless ―because the death penalty
jurisprudence of the courts in this nation is not static but evolving.‖ He presents
no persuasive reason for us to revisit our previous holdings on this point.

       C. Failure to Read the Indictment to the Jury
       Sandoval claims that the judgment must be reversed because the trial court
failed to read the indictment to the jury and inform the jury that he had pled not
guilty, as required by section 1093. Section 1093 states in pertinent part: ―The
jury having been impaneled and sworn, unless waived, the trial shall proceed in
the following order, unless otherwise directed by the court: [¶] (a) If the
accusatory pleading be for a felony, the clerk shall read it, and state the plea of the


                                           17
defendant to the jury, and in cases where it charges a previous conviction, and the
defendant has confessed the same, the clerk in reading it shall omit therefrom all
that relates to such previous conviction. In all other cases this formality may be
dispensed with.‖
       Before the first panel of prospective jurors was brought into the courtroom,
the trial court described how jury selection would be conducted and noted that
after his introductory comments he would ―have to read the indictment to the
panel as well.‖ The court read the indictment to the first panel of prospective
jurors. It does not appear that the trial court informed the jury that Sandoval had
pled not guilty. The court did not read the indictment to the second panel of
prospective jurors but did so for the third panel. The court did not read the
indictment to the fourth, fifth, or sixth panels. The jury and four alternate jurors
were selected and sworn. The following then took place outside the presence of
the jury:
       ―The Court: I know I stopped reading the indictment. . . . Therefore, I
have to read it on Monday, unless you don‘t think it‘s necessary.
       ―[Defense Counsel]: I don‘t think it‘s necessary.
       ―[Prosecutor]: I don‘t either.
       ―The Court: Fine. Then I won‘t. That‘s fine with me.‖
       At the beginning of the proceedings the following day, the court instructed
the jury, ―You must not be biased against the defendant because he has been
arrested for this offense, charged with a crime and brought to trial. None of these
circumstances is evidence of guilt, and you must not infer or assume from any or
all of them he is more likely to be guilty than not guilty.‖
       We agree with the Attorney General that defense counsel expressly waived
any right Sandoval had to have the court read the indictment. ―Section 1093 of the
Penal Code expressly authorizes the waiving of the reading of the information and
                                          18
clearly this is a function which lies within the general authority of counsel to
perform for the defendant absent any specific requirement in the law that the
waiver must be by the defendant personally.‖ (People v. Herrera (1962) 209
Cal.App.2d 748, 752.) In his reply brief, Sandoval contends that ―[a]ssuming an
enforceable waiver with respect to the reading of the indictment, any such waiver
did not relieve the court of its duty to inform the jury that Mr. Sandoval had pled
not guilty to the charges against him.‖ But because the court‘s obligation to state a
defendant‘s plea in section 1093 follows on the court‘s obligation to read the
indictment, we find that Sandoval, by agreeing to waive the court‘s reading of the
indictment, likewise waived the court‘s statement of his plea to the indictment.
                             III. GUILT PHASE ISSUES

        A. Testimony of Gang Expert
        Sandoval contends that the trial court invaded the province of the jury by
admitting testimony by a gang expert that one reason Sandoval brought the assault
weapon was to use it against the police if they arrived during the planned attack on
Toro.
        Over Sandoval‘s objection, Sergeant Richard Valdemar testified that gangs
―often use military type tactics.‖ When Sandoval and his fellow gang members
reached Toro‘s house, ―they would deploy in a group, like a military unit . . . .
[T]he long arm or rifle would take a position of advantage that would allow him to
cover the people with hand guns who would approach the house, possibly also
acting as lookouts on either end of the street . . . .‖ Gang members ―expect there
to be a law enforcement presence.‖ Using an assault weapon usually ―would out
gun the police.‖ If the police arrived, ―it would be the back up man‘s duty to take
them on and pin them down or kill them if possible.‖




                                          19
       ―A person is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.‖ (Evid. Code, § 720, subd. (a).) ―If a
witness is testifying as an expert, his testimony in the form of an opinion is limited
to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact
. . . .‖ (Evid. Code, § 801.)
       Sandoval is incorrect in claiming that ―the sergeant was no more qualified
than the jury to determine whether Mr. Sandoval took part in a premeditated plan
to ‗take on‘ any police who interrupted B.P.‘s attack on Toro.‖ Sergeant
Valdemar qualified as an expert on gang tactics because he had extensive
experience with criminal street gangs as a police officer and in the military as a
military police officer. And we have held that the subject of gang tactics is
sufficiently beyond common experience to be a proper subject of expert testimony.
(People v. Gardeley (1996) 14 Cal.4th 605, 617.)
       Nor did ―the sergeant‘s testimony constitute[] an impermissible opinion as
to Mr. Sandoval‘s guilt on the first degree murder charge,‖ as Sandoval‘s briefing
contends. Sergeant Valdemar did not testify that Sandoval was guilty of murder.
He properly testified that one reason for bringing an assault weapon to an action to
retaliate against a rival gang leader was to attack the police if they arrived during
the planned attack.

       B. The Lying-in-wait Special Circumstance Must Be Reversed
       Sandoval contends that the lying-in-wait special circumstance must be
reversed. There are two bases for his challenge. First, he contends there was
insufficient evidence of lying in wait. Second, he argues that the jury was not
properly instructed with CALJIC Nos. 8.83 and 8.83.1 that between two


                                          20
reasonable inferences from circumstantial evidence, the jury must choose the
inference pointing to innocence. We need not decide the first issue because we
agree with Sandoval on the second.
        The trial court instructed the jury that to find true the lying-in-wait special-
circumstance allegation, it must find that the ―murder was committed while the
defendant was lying in wait.‖ (Italics added.) This formulation is ―slightly
different from, and more stringent than,‖ the requirement for lying-in-wait first
degree murder ―that the murder be perpetrated ‗by means of‘ lying in wait . . . .‖
(People v. Lewis (2008) 43 Cal.4th 415, 511, italics added.) A 2000 ballot
measure (Prop. 18) changed the definition of the lying-in-wait special
circumstance in section 190.2, subdivision (a)(15) to delete the requirement that
the murder be committed ―while‖ the defendant was lying in wait and to instead
require only the lesser standard that the defendant must have ―intentionally killed
the victim by means of lying in wait.‖ (Stats. 1998, ch. 629, § 2, p. 4165,
approved by voters as Prop. 18, Primary Elec. (Mar. 7, 2000), italics added.) This
change took effect on March 8, 2000, the month before Detective Black was
killed, but the trial court used the former, more stringent language to instruct the
jury in this case. The new language does not make a material difference in this
case.
        Lying-in-wait murder serves two functions in our criminal law. First, it is a
means of proving first degree murder. ―Lying in wait is the functional equivalent
of proof of premeditation, deliberation, and intent to kill.‖ (People v. Stanley
(1995) 10 Cal.4th 764, 794–795.) Proof of lying in wait ― ‗distinguish[es] those
cases in which a defendant acts insidiously from those in which he acts out of rash
impulse. [Citation.] This period need not continue for any particular length ― ‗of
time provided that its duration is such as to show a state of mind equivalent to
premeditation or deliberation.‘ ‖ ‘ ‖ (People v. Mendoza (2011) 52 Cal.4th 1056,
                                           21
1073.) Once a sufficient period of watching and waiting is established, together
with the other elements of lying-in-wait murder, no further evidence of
premeditation and deliberation is required in order to convict the defendant of first
degree murder. (People v. Thomas (1953) 41 Cal.2d 470, 474.)
       Second, lying in wait is also a special circumstance that fulfills the
constitutional mandate that ― ‗a capital sentencing scheme . . . ―genuinely narrow
the class of persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others found
guilty of murder.‖ ‘ ‖ (Romano v. Oklahoma (1994) 512 U.S. 1, 7.) We have held
that the lying-in-wait special circumstance performs this function because it ―has
been ‗anciently regarded . . . as a particularly heinous and repugnant crime.‘ ‖
(People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) A substantial period of
watching and waiting is one characteristic that helps distinguish lying-in-wait
murder from ordinary murder. Concealment of purpose is not by itself ―sufficient
to establish lying in wait‖ because ―many ‗routine‘ murders are accomplished by
such means.‖ (People v. Morales (1989) 48 Cal.3d 527, 557.) But ―an intentional
murder, committed under circumstances which include (1) a concealment of
purpose, (2) a substantial period of watching and waiting for an opportune time to
act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage, presents a factual matrix sufficiently distinct from
‗ordinary‘ premeditated murder to justify treating it as a special circumstance.‖
(Ibid.; see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1183 (Hajek and Vo).)
       Sandoval contends that the jury should have been instructed with CALJIC
Nos. 8.83 or 8.83.1. CALJIC No. 8.83 (6th ed. 1996) states: ―You are not
permitted to find a special circumstance alleged in this case to be true based on
circumstantial evidence unless the proved circumstance is not only (1) consistent
with the theory that a special circumstance is true, but (2) cannot be reconciled
                                          22
with any other rational conclusion. [¶] Further, each fact which is essential to
complete a set of circumstances necessary to establish the truth of a special
circumstance must be proved beyond a reasonable doubt. [¶] In other words,
before an inference essential to establish a special circumstance may be found to
have been proved beyond a reasonable doubt, each fact or circumstance upon
which that inference necessarily rests must be proved beyond a reasonable doubt.
[¶] Also, if the circumstantial evidence is susceptible of two reasonable
interpretations, one of which points to the truth of a special circumstance and the
other to its untruth, you must adopt the interpretation which points to its untruth,
and reject the interpretation which points to its truth. [¶] If, on the other hand, one
interpretation of that evidence appears to you to be reasonable and the other
interpretation to be unreasonable, you must accept the reasonable interpretation
and reject the unreasonable.‖ CALJIC No. 8.83.1 (6th ed. 1996) is essentially the
same except it specifically references mental states: ―you may not find a special
circumstance alleged in this case to be true unless the proved circumstances are
not only, (1) consistent with the theory that the defendant had the required
[specific intent] [mental state], but (2) cannot be reconciled with any other rational
conclusion.‖
       While acknowledging he did not ask the trial court to instruct with CALJIC
Nos. 8.83 and 8.83.1, Sandoval contends that the trial court had a sua sponte duty
to give at least one of these instructions. The obligation to instruct the jury sua
sponte ―on general principles of law relevant to the issues raised by the facts of the
case before it . . . includes the duty to instruct on the effect to be given
circumstantial evidence but only when circumstantial evidence is ‗substantially
relied on for proof of guilt.‘ [Citation.] The instruction should not be given ‗when
the problem of inferring guilt from a pattern of incriminating circumstances is not
present.‘ ‖ (People v. Wiley (1976) 18 Cal.3d 162, 174 (Wiley).) As the court said
                                           23
in People v. Bender (1945) 27 Cal.2d 164, 175 (Bender), in explaining why the
equivalent instruction should be given sua sponte: ― ‗[T]o justify a conviction, the
facts or circumstances must not only be entirely consistent with the theory of guilt
but must be inconsistent with any other rational conclusion.‘ It cannot be too
strongly emphasized that such quoted statement enunciates a most important rule
governing the use of circumstantial evidence.‖ On the other hand, when the
circumstantial evidence is not substantially relied on, giving this kind of
instruction may confuse or mislead the jury. (People v. Anderson (2001) 25
Cal.4th 543, 582.) Thus, the instruction should not be given, for example, when
circumstantial evidence is merely used to corroborate direct evidence. (Ibid.;
People v. Wright (1990) 52 Cal.3d 367, 406.)
       Whether the instruction should be given therefore depends on whether the
prosecution in this case substantially relied on circumstantial evidence to prove the
lying-in-wait special circumstance. The resolution of this question requires us to
understand the nature of the prosecution and defense cases with regard to that
circumstance. Although Sandoval‘s attack on Detectives Black and Delfin had
many of the hallmarks of murder by means of lying in wait and appeared to the
surviving victim and an observer like a classic ambush, Sandoval argued at trial,
and now contends, that there was insufficient evidence of a substantial period of
watching and waiting for an opportune time to murder the officers.
       The prosecutor argued that the period in question was substantial enough
because it began the moment Sandoval ducked down behind the car. At that point,
according to the prosecution, Sandoval was not merely hiding from the police but
contemplating murdering them. As the prosecutor said during closing argument:
―He sees the police officer, ducks down, and waits to see whether it‘s necessary,
whether it‘s appropriate, for him to begin shooting, whether it‘s going to be
necessary to kill the police officers. Depending on their conduct.‖
                                         24
       Sandoval‘s counsel contested the prosecution‘s characterization of the facts.
He said, ―It‘s not a lying in wait murder of Daryle Black. The hiding behind the
car. He was not lying in wait to shoot Daryle Black. He was hiding from him.
There was no period of watching and waiting. It was a total surprise.‖
       Sandoval‘s confession supports, or at least does not contradict, the defense
argument that he initially ducked down behind the car to hide from the police and
formulated an intention to kill them only when they approached Camacho
(Rascal). Sandoval had the following exchange with his chief interrogator, Steve
Lasiter:
       ―SL: And you‘re just getting out of the car when you see [the police car.]
       ―RS: Yes.
       ―SL: What did you do next?
       ―RS: I ducked.
       ―SL: Okay. You ducked where?
       ―RS: Behind.
       ―SL: Where did you duck? Or what did you hide behind?
       ―RS: Behind the car.
       ―SL: All right. As you‘re hiding behind the car, what do you see?
       ―RS:   I see the cop car looking at Rascal.
       ―SL: Okay. How many officers are in the car?
       ―RS: Two.
       ―SL: Okay. And can you see them?
       ―RS: Yes.
       ―SL: Okay. Both of [the police officers] are looking at Rascal?
       ―RS: Yes.
       ―SL: Okay. And you can see that?
       ―RS: Yes.
                                        25
       ―SL: All right. What happens next?
       ―RS: Well, I try to save Rascal. So I jumped off.
       ―SL: Okay. You try to save Rascal from what?
       ―RS: From not going to jail.
       ―SL: Why would he go to jail?
       ―RS: Because he was on parole.
       ―SL: Okay.
       ―RS: So I jumped off and started shooting at the officers.‖
       Elsewhere in his confession, Sandoval said that when he first spotted the
police car, it was about two houses north of where he was. When he saw the
police officers looking at Camacho, the police car was one car length north of him,
and that was when he decided to shoot them. Sandoval further said that the car
was 10 feet away when he began shooting, though it is not clear whether Sandoval
meant 10 feet north or 10 feet east of him. The one eyewitness to testify, Jimmy
Falconer, said that he was backing out of his driveway and then stopped backing
out as the police car passed. He continued to back up and saw the police car slow
down, and ―just as they passed me up, gun fire opened up.‖
       From the record, it is difficult to determine the length of time between
Sandoval‘s decision to kill the officers after they approached Camacho and his
execution of that decision. The evidence suggests it was extremely short, perhaps
a second or two. But Sandoval‘s confession was not the only evidence relevant to
fixing the period of watching and waiting. As recounted above, Sergeant
Valdemar, the gang expert witness, opined in response to a hypothetical posed by
the prosecutor that in an operation to kill a rival gang leader, those gang members
involved in the operation ―would deploy in a group, like a military unit . . . . [T]he
long arm or rifle would take a position of advantage that would allow him to cover
the people with hand guns who would approach the house, possibly also acting as
                                         26
lookouts on either end of the street . . . .‖ Gang members ―expect there to be a law
enforcement presence.‖ Using an assault weapon usually ―would out gun the
police.‖ If the police arrived, ―it would be the backup man‘s duty to take them on
and pin them down or kill them if possible.‖
       Thus, the prosecutor‘s statement that Sandoval ―sees the police officer,
ducks down, and waits to see whether it‘s necessary, whether it‘s appropriate, for
him to begin shooting, whether it‘s going to be necessary to kill the police
officers,‖ is unmistakably a reference to Sergeant Valdemar‘s testimony because
that was the principal evidence supporting that supposition. That reference
became explicit in the prosecutor‘s surrebuttal, responding to defense counsel‘s
intertwined arguments that there was no premeditation or lying in wait: The
prosecutor told the jury to ―[l]isten to what Rich Valdemar said.‖ In summarizing
Valdemar‘s testimony, he told the jury: ―This is the way [criminal street gangs]
deploy their troops. This is the way they commit these types of crimes. They do
consider law enforcement‘s presence. They do bring long arms in order to fend
off police in the apprehension of their fellow gangsters.‖ From this testimony, the
jury could infer that when Sandoval ducked behind the car, he was contemplating
killing the police.
       Sergeant Valdemar‘s testimony, which was indisputably circumstantial
evidence, was thus critical to the prosecutor‘s case for lying in wait. Although
there was evidence that Sandoval was hiding and waiting and watching as soon as
the police appeared on Lime Avenue, Sergeant Valdemar‘s testimony was the
principal evidence in support of the prosecution‘s theory that Sandoval was
watching and waiting for an opportune time to commit the murder from the
moment he spotted the police. Yet Sandoval‘s confession, though highly
incriminating, makes no mention of any thought about killing the police until they
approached Camacho. Thus, this case is unlike People v. McKinnon (2011) 52
                                         27
Cal.4th 610, 676 fn. 40, where we held that circumstantial evidence that
corroborates or bolsters direct evidence does not warrant the circumstantial
evidence instruction at issue here, even when a defendant claims the circumstantial
evidence was stronger than the direct evidence. In this case, contrary to Justice
Chin‘s view (see conc. & dis. opn., post, at p. 10–11), Sergeant Valdemar‘s
testimony did not bolster any direct evidence of the prosecution‘s theory; it was
the crucial evidence used to prove that theory.
       We therefore conclude that the prosecution‘s case for the lying-in-wait
special circumstance substantially relied on that circumstantial evidence, and that
CALJIC No. 8.83 or No. 8.83.1, or its equivalent, should have been given sua
sponte. The trial court‘s mistake may have been understandable in these
circumstances. The lying-in-wait issue was a relatively small part of the
prosecutor‘s case: most of his case focused on establishing first degree
premeditated murder and attempted murder, and the prosecution also argued for
three other special circumstances and various enhancements. Furthermore, as
discussed, the prosecutor‘s reference to Sergeant Valdemar‘s testimony was
sometimes oblique. Nonetheless, the prosecutor did substantially rely on that
circumstantial evidence to prove his theory of the lying-in-wait special
circumstance, and CALJIC No. 8.83 or 8.83.1 should have been given.
       When a trial court erroneously fails to give this instruction or its equivalent,
it may be reversible error. (Wiley, supra, 18 Cal.3d 162, 174–175; People v.
Yrigoyen (1955) 45 Cal.2d 46, 49–50; Bender, supra, 27 Cal.2d at p. 175.) We
have not had occasion to specify the standard of prejudice to be applied to such an
error. The requirement to give CALJIC No. 8.83 is a rule emerging out of our
case law to ensure that the reasonable doubt standard and the burden of proof are
properly applied in the context of circumstantial evidence. (See Bender, supra, at
p. 175.) The failure to give the instruction, while a significant omission, does not
                                          28
affirmatively mislead the jury about the proper standard or burden of proof, and
therefore is not structural error requiring automatic reversal. (Cf. Sullivan v.
Louisiana (1993) 508 U.S. 275, 280–282.) Nor does the failure to give the
instruction omit an element of a criminal offense, an error that can only be
excused if harmless beyond a reasonable doubt. (Cf. People v. Gonzales (2012)
54 Cal.4th 643, 662–663.) The error in this case is more closely analogous to the
trial court‘s failure to give a pinpoint instruction, which is judged as state law error
that is prejudicial only where there is a reasonable probability of a more favorable
result. (People v. Fudge (1994) 7 Cal.4th 1075, 1111–1112; People v. Watson
(1956) 46 Cal.2d 818, 837.) ― ‗We have made clear that a ―probability‖ in this
context does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility.‖ (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
       Here we conclude that it is reasonably probable that had the jury been
properly instructed, it would not have found the special circumstance true. ―We
presume that jurors understand and follow the court‘s instructions.‖ (People v.
Pearson, supra, 56 Cal.4th at p. 414.) One inference from Sergeant Valdemar‘s
testimony is that Sandoval, acting the way gang members typically operate, began
to contemplate the murder of the police officers as soon as he saw them and hid
behind the car. But this inculpatory inference is not the only reasonable inference
that could be drawn from such testimony. A reasonable juror, while believing the
gang expert, might have inferred that his testimony about how street gangs usually
think and act did not prove that Sandoval thought or acted that way in this
instance. Such a juror could reasonably refuse to credit the prosecution‘s theory
about what Sandoval was thinking when he first saw the police unless Sergeant
Valdemar‘s testimony was supported by direct evidence of Sandoval‘s mental
state at the time. This view does not posit that the jury ―rejected the
circumstantial evidence‖ (dis. opn., post, at p. 3); it posits only that the jury
                                           29
reasonably rejected the inference that the prosecution wanted it to draw from that
evidence.
       We further conclude that with Sergeant Valdemar‘s testimony discounted,
there is a reasonable chance the jury would have found the lying-in-wait special
circumstance not true. The jury was instructed that lying in wait was defined in
part as ―a waiting and watching for an opportune time to act‖ that ―need not
continue for any particular period of time provided that its duration is such as to
show a state of mind equivalent to premeditation and deliberation.‖ As discussed,
the prosecutor argued that the period of waiting and watching for an opportune
time to act began at the time the officers arrived on Lime Avenue. Sergeant
Valdemar‘s testimony was the principal evidence in support of that theory.
Notwithstanding Justice Chin‘s view of the evidence (see conc. & dis, opn., post,
at pp. 10–11), it is unlikely that the jury on its own would have arrived at an
alternate theory and would have concluded that the very brief, indeterminate time
between when Sandoval noticed the police looking at Camacho and when
Sandoval opened fire was a sufficiently substantial period of watching and
waiting. Whether or not this would have constituted sufficient evidence of lying
in wait, there is more than an abstract possibility that, without the benefit of the
prosecutor‘s theory and confronted with an extremely short period of waiting that
seems difficult to call waiting at all, the jury would not have found true the lying-
in-wait special circumstance.
       We therefore reverse the judgment on the lying-in-wait special
circumstance. Sandoval does not argue that reversal of that special circumstance
requires a reversal of the penalty phase judgment, nor could he plausibly do so.
As discussed below, the failure to properly instruct on the role that circumstantial
evidence played in proving the lying-in-wait special circumstance does not call
into question Sandoval‘s first degree murder verdict. Moreover, three special-
                                          30
circumstance findings against Sandoval remained, which underscores the
particularly heinous nature of the murder: murder of a peace officer engaged in
the lawful performance of his duties, murder committed for the purpose of
preventing a lawful arrest, and murder to further the activities of a criminal street
gang. Each of these was proved primarily by the direct evidence of Sandoval‘s
confession. Furthermore, the jury would still have been statutorily permitted at the
penalty phase to consider almost all of the same evidence concerning the facts and
circumstances of Black‘s murder. (§ 190.3, factor (a); see Hajek and Vo, supra,
58 Cal.4th at pp. 1186–1187.) Even if the jury had concluded there was
insufficient evidence of watching and waiting to find the lying-in-wait special
circumstance true, that conclusion would have done little to alter the highly
aggravated nature of Sandoval‘s murder of Detective Black and attempted murder
of Detective Delfin. Nor would it have changed the jury‘s assessment of the other
aggravating evidence introduced. We conclude there is no reasonable possibility
that the error affected the penalty phase verdict.

       C. Sufficiency of Evidence of First Degree Murder
       Sandoval argues that there was insufficient evidence of first degree murder
because his shooting of Detective Black was ―intentional but unplanned‖ and ―not
premeditated and deliberate.‖ He argues, as defense counsel did at trial, that there
was only sufficient evidence of second degree murder.
       In reviewing a challenge to the sufficiency of the evidence, we ―review the
whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable
doubt. [Citation.] The record must disclose substantial evidence to support the
verdict — i.e., evidence that is reasonable, credible, and of solid value — such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable


                                          31
doubt. [Citation.] In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.
[Citation.]‖ (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
       We first note that the jury in this case was instructed on two theories of first
degree murder: premeditation and deliberation, and lying in wait. When a jury is
instructed on two theories of first degree murder, a first degree murder verdict will
be upheld if there is insufficient evidence as to one of the theories. (People v.
Lewis (2008) 43 Cal.4th 415, 507.) We need not decide whether there was
sufficient evidence of murder by means of lying in wait because we conclude there
was sufficient evidence of premeditation and deliberation. Contrary to Justice
Chin‘s view (see conc. & dis. opn., post, at p. 13), a conclusion that there was
insufficient evidence of lying-in-wait murder does not mean there was no
premeditation and deliberation, but only that these mental states must be
established by another route.
       The trial court instructed the jury that ―murder which is perpetrated by any
kind of willful, deliberate and premeditated killing with express malice
aforethought is murder of the first degree.‖ ―First degree murder, like second
degree murder, is the unlawful killing of a human being with malice aforethought,
but has the additional elements of willfulness, premeditation, and deliberation
which trigger a heightened penalty.‖ (People v. Chiu (2014) 59 Cal.4th 155, 166.)
― ‗Deliberation‘ refers to careful weighing of considerations in forming a course of
action; ‗premeditation‘ means thought over in advance. [Citations.] ‗The process
of premeditation and deliberation does not require any extended period of time.
―The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold,


                                          32
calculated judgment may be arrived at quickly.‘ ‖ (People v. Koontz (2002) 27
Cal.4th 1041, 1080 (Koontz).)
       ―In People v. Anderson (1968) 70 Cal.2d 15, 26–27, this court reviewed
earlier decisions and developed guidelines to aid reviewing courts in assessing the
sufficiency of evidence to sustain findings of premeditation and deliberation.
[Citation.] We described three categories of evidence recurring in those cases:
planning, motive, and manner of killing. [Citations.] The Anderson decision
stated: ‗Analysis of the cases will show that this court sustains verdicts of first
degree murder typically when there is evidence of all three types and otherwise
requires at least extremely strong evidence of [planning] or evidence of [motive]
in conjunction with [evidence of] either [planning] or [manner of killing].‘
(Anderson, at p. 27; [citation].) Since Anderson, we have emphasized that its
guidelines are descriptive and neither normative nor exhaustive, and that
reviewing courts need not accord them any particular weight.‖ (People v.
Halvorsen (2007) 42 Cal.4th 379, 419–420.) In particular, the Anderson factors
―are not well adapted to a case . . . in which the defendant‘s post-offense
statements provide substantial insight into the defendant‘s thought processes in the
crucial moments before the act of killing.‖ (People v. Mayfield (1997) 14 Cal.4th
668, 768 (Mayfield.)
       In his briefing, Sandoval says he arrived at Lime Avenue intending to kill
Toro and had insufficient time to premeditate the murder of Detective Black. But
there is ample, uncontradicted direct evidence from Sandoval‘s own confession
and conduct of premeditation and deliberation. First, Sandoval‘s confession
reveals his motive. His decision to kill the police rather than have his fellow gang
member returned to prison epitomizes a ― ‗ ―cold, calculated judgment . . . arrived
at quickly.‖ ‘ ‖ (Koontz, supra, 27 Cal.4th at p. 1080; see Mayfield, supra, 14
Cal.4th at p. 767 [quick but ―cold and calculated decision‖ to kill police officer
                                          33
rather than being arrested supports a finding of premeditation].) Moreover, the
manner of killing may be ―sufficiently ‗ ―particular and exacting‖ ‘ to warrant an
inference that defendant was acting according to a preconceived design.‖ (People
v. Thomas (1992) 2 Cal.4th 489, 518.) The fact that the manner of killing is
prolonged also supports an inference of deliberation. (People v. Davis (1995) 10
Cal.4th 463, 510.) Here, the firing of 28 shots from a high-powered weapon into a
police car, a period that lasted for about two minutes, according to eyewitness
Jimmy Falconer‘s testimony, provided evidence of a military-style execution of
Sandoval‘s hastily made plan from which the jury could reasonably infer
premeditation and deliberation.
       On the other hand, there is scant evidence to support Sandoval‘s theory of
second degree murder. There is little indication that the murder was rash and
impulsive, as when a defendant acts out of a fear or passion in response to a
provocation that is insufficient to show an absence of malice. (See People v.
Rogers (2006) 39 Cal.4th 826, 866–867; People v. Dewberry (1959) 51 Cal.2d
548, 553.) We conclude there was sufficient evidence from which a jury could
conclude beyond a reasonable doubt that Sandoval‘s murder of Detective Black
was willful, deliberate, and premeditated, and therefore constituted murder of the
first degree.
       Sandoval argues that ―the prosecutor urged the jury to find premeditation
and deliberation pursuant to a transferred premeditation theory.‖ (See Hajek and
Vo, supra, 58 Cal.4th at p. 1184, fn. 12 [a transferred intent theory of the lying-in-
wait special circumstance has ―no support in case law‖].) Although the prosecutor
argued that ―[t]he premeditation and deliberation . . . started a long time before
they ever got to Lime [Avenue],‖ he did not argue that Sandoval‘s prior intent to
kill Toro could be transferred to constitute intent to kill Detective Black. Rather,
the prosecutor argued that when the police car arrived at the scene, Sandoval
                                          34
―chang[ed] his focus from willful, deliberate premeditated killing Toro to now,
I‘m going to kill these police officers. This defendant considered what the options
were and what the appropriate course of action was, and he chose to kill Daryle
Black and try and kill his partner.‖ The record does not support Sandoval‘s claim
that the prosecutor urged a transferred premeditation theory.

       D. Refusal to Instruct the Jury with CALJIC No. 2.02
       Sandoval argues that the trial court erroneously refused his request to give
the jury the standard instruction regarding the use of circumstantial evidence,
CALJIC Nos. 2.01 and 2.02, the guilt phase equivalents of the special
circumstance instructions CALJIC Nos. 8.83 and 8.83.1, discussed above.
Sandoval points out that ―[e]vidence of a defendant‘s state of mind is almost
inevitably circumstantial . . . .‖ (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
But we have held that this fact alone does not require a trial court to instruct the
jury pursuant to CALJIC No. 2.02: ―The fact that the elements of a charged
offense include mental elements that must necessarily be proved by inferences
drawn from circumstantial evidence does not alone require an instruction on the
effect to be given such evidence however. The contrary is usually the rule.‖
(Wiley, supra, 18 Cal.3d at p. 175.) An instruction on the effect to be given
circumstantial evidence is not required simply because the defendant‘s mental
state ―had to be inferred from the circumstances‖ of the crime. (Ibid.)
       Moreover, although we hold above that the equivalent circumstantial
evidence instruction should have been given with respect to the lying-in-wait
special circumstance, we do not similarly conclude CALJIC No. 2.01 or 2.02
should have been given simply because the jury was instructed on murder by lying
in wait. As discussed, this instruction should be given ―only when circumstantial
evidence is ‗substantially relied on for proof of guilt.‘ ‖ (Wiley, supra, 18 Cal.3d


                                          35
at p. 174.) Here the prosecutor, when arguing first degree murder to the jury,
relied primarily on a theory of premeditation and deliberation, emphasizing
Sandoval‘s confession and the manner of killing. We held in Wiley that
―[e]xtrajudicial admissions, although hearsay, are not the type of indirect evidence
as to which the instructions on circumstantial evidence are applicable.‖ (Ibid.)
       Even if it were error to refuse the instruction, there is no reasonable
probability the instruction would have resulted in a more favorable verdict. The
strong direct evidence of premeditation and deliberation recounted above, which
the prosecutor focused on, means that even if the jury discounted Sergeant
Valdemar‘s testimony about Sandoval‘s likely mental state when he initially
spotted the police officers on Lime Avenue, there is no reasonable chance it would
have returned a second degree rather than first degree murder verdict.

       E. Admission of Camacho’s Notes
       Sandoval asserts that the trial court erred in admitting into evidence notes
written by codefendant Miguel Camacho as he prepared for a gang meeting.
       On the afternoon of the day Sandoval shot Detectives Black and Delfin,
Camacho and about 30 other members of the Barrio Pobre gang met in a house on
Dairy Street. As Camacho was organizing the meeting, he wrote notes on two
sheets of white, lined paper. One page has what appears to be 13 gang names
followed by telephone numbers. The other sheet lists 33 gang names. In the
middle of the page, Camacho wrote what appear to be talking points for the
meeting: ―Tagers in the neighborhood, no straps, too much hanging out and not
enough dead muthaphuckers, homies click tripping, homies doing stupid shit and
cause of that other homies pay for it, braging about another homie‘s dirt or even
talking about it.‖ A gang expert testified that ―tagers‖ refers to graffiti and ―strap‖




                                          36
refers to carrying a gun, so ―no straps‖ means some gang members did not have
guns.
        Sandoval objected to admission of the notes on the grounds that Camacho‘s
notes were ―not connected up with [Sandoval] because there‘s no showing that
[Sandoval] endorsed or watched [Camacho] write it; was there when he talked
about it,‖ and the notes are ―basically hearsay,‖ and their probative value was
outweighed by their prejudicial effect. The court held that ―the foundation was
laid as to the authenticity of the writing,‖ it was relevant because it listed the
people who attended the meeting, it was connected to Sandoval because he
attended the meeting, it was very probative and was more probative than
prejudicial. The court did not rule on the hearsay objection.
        On appeal, Sandoval focuses on the statement in the notes that there was
―too much hanging out and not enough dead muthaphuckers.‖ A gang expert
testified that this meant ―we‘re acting like a club, not like a gang. We‘re not
killing enough people or our rivals.‖ Sandoval argues that this statement was
hearsay because it was offered to prove the truth of the matter stated:
―Specifically, the prosecutor offered the written remark to prove Mr. Sandoval‘s
mental state at the time of the shooting of Detective Black.‖
        ― ‗Hearsay evidence‘ is evidence of a statement that was made other than
by a witness while testifying at the hearing and that is offered to prove the truth of
the matter stated.‖ (Evid. Code, § 1200, subd. (a).) In People v. Mendoza (2007)
42 Cal.4th 686, 697, we held that the murder victim‘s out-of-court accusation that
the defendant had sexually molested her was not hearsay because it was not
offered ―to prove defendant actually molested her, but rather to prove defendant
was aware of the accusations and to explain defendant‘s motive for killing‖ the
victim. We held that the victim‘s ―accusations were properly admitted to explain
defendant‘s state of mind, motive, and conduct.‖ (Ibid.) Similarly, Camacho‘s
                                           37
note was not offered to prove that there actually were not enough dead people or
that the gang actually had not killed enough people, but to prove that shortly
before defendant shot Detectives Black and Delfin, a leader of his gang had told
him that gang members should kill more people. The note was properly admitted
to explain Sandoval‘s state of mind when he shot the officers.
       Sandoval also appears to argue that the notes were irrelevant because ―[n]o
evidence was presented that [Camacho] or any other B.P. member read or
otherwise communicated the contents of [Camacho‘s] notes to other B.P. members
at the B.P. meeting . . . .‖ Evidence was introduced that Camacho prepared these
notes as he was organizing a meeting of gang members. The jury reasonably
could conclude that these notes reflected what Camacho later said at the meeting.

       F. Evidence of Threats Against Angela Estrada
       Sandoval contends the trial court erroneously admitted evidence that
prosecution witness Angela Estrada was threatened. Estrada was living at her
sister‘s house on Dairy Street when Sandoval, Camacho, and other members of
Barrio Pobre met there just before the April 29, 2000 shooting. During direct
examination, the prosecutor asked Estrada whether she had been threatened:
       ―Q: Have you been threatened with regard to coming in here and telling this
jury the truth about what you know?
       ―The Court: I‘m going to admonish the jury right now. Any questions dealing
with threats does not infer or assume that those threats are connected with the
defendant in any way, but threats in general may have occurred by people on their
own who have no ties or relationship with the defendant, and you‘re not to assume
otherwise. Please go ahead.
       ―[¶] . . . [¶]
       ―Q: Do you remember the question?


                                          38
       ―A: Yes. Have I been threatened?
       ―Q: Yes.
       ―A: Not in particular. But in general, yes.
       ―Q: What do you mean? What does that mean?
       ―A: I‘ve just been told, you know, just to watch what I say.
       ―Q: Well, what does that mean?
       ―A: I don‘t know.
       ―Q: Was the person with a message that you got a message from someone in
Barrio Pobre?
       ―A: No.
       ―Q: Did you tell Detective Prell and I when we spoke it was someone in
Barrio Pobre?
       ―A: Look, I don‘t know what you‘re trying to get at but - -
       ―The Court: Ma‘am, just answer the question.
       ―A: No, it wasn‘t.
       ―Q: Did you tell Detective Prell and I, and then Detective Robbins and I, that
you were threatened by someone in Barrio Pobre?
       ―A: Someone told me, you know. They didn‘t tell me directly. Someone had
said, you know, we -- we -- we--we saw the paperwork, and you said this and you
said that. That‘s all that was said.‖
       Estrada later added:
       ―Q: If there were paperwork indicating that you had testified being a past
member of Barrio Pobre, and you had testified against another member of B.P., would
that be looked on favorably or unfavorably by people in the neighborhood?
       ―A: Unfavorably.‖
       A ―jury may consider in determining the credibility of a witness any matter
that has any tendency in reason to prove or disprove the truthfulness of his
                                          39
testimony at the hearing, including but not limited to any of the following: [¶] . . .
[¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] . . . [¶]
(j) His attitude toward the action in which he testifies or toward the giving of
testimony.‖ (Evid. Code, § 780.) ―Evidence that a witness is afraid to testify or
fears retaliation for testifying is relevant to the credibility of that witness and
therefore is admissible. [Citations.] An explanation of the basis for the witness‘s
fear is likewise relevant to her credibility and is well within the discretion of the
trial court.‖ (People v. Burgener (2003) 29 Cal.4th 833, 869.) ―Moreover,
evidence of a ‗third party‘ threat may bear on the credibility of the witness,
whether or not the threat is directly linked to the defendant. [Citations.]‖ (People
v. Mendoza, supra, 52 Cal.4th at p. 1084.) ―It is not necessarily the source of the
threat — but its existence — that is relevant to the witness‘s credibility.‖
(Burgener, supra, 29 Cal.4th at p. 870.) The trial court did not abuse its discretion
in admitting evidence that Estrada had been threatened.
       The court immediately admonished the jury not to ―infer or assume that
those threats are connected with the defendant in any way,‖ explaining that ―threats in
general may have occurred by people on their own who have no ties or relationship
with the defendant.‖ Sandoval argues that this admonition was inadequate because
―the court did not instruct the jury to limit its consideration of the evidence to the
witness‘s state of mind.‖ Because the court instructed the jury not to infer that the
threats were connected to Sandoval in any way, there was no reason to believe that
the jury would have considered the evidence of threats for any reason other than
evaluating the state of mind of the witness. The trial court‘s admonition was
sufficient.




                                           40
       G. Absence of Defendant from the Proceedings
       Sandoval argues that the trial court committed reversible error by
discussing with counsel how to respond to a question from the jury during
deliberations when he was not present.
       After the jury retired to deliberate, the trial court asked whether Sandoval
wished to be present if the jury requested that testimony be read back. Sandoval
personally waived his right to be present. The court then asked whether both of
his attorneys wished to be present if the court was called upon to respond to a
question from the jury. Defense counsel agreed that only one attorney, William
Ringgold, would be present. Sandoval personally waived his right to have both of
his attorneys present. He was not asked if he waived his right to be personally
present when the court responded to the jury‘s question.
       On the second full day of deliberations, the jury sent the court a written
question regarding the attempted murder charge in count two. The question stated
in part: ―Pages 54 and 55 of the instructions do not states [sic] that this must be a
premeditated act. Is my interpretation of the elements right?‖ The trial court
consulted by telephone with the prosecutor and both defense counsel, and they
agreed upon the following response, which was sent to the jury: ―Whether or not
there was premeditation as to count two is a finding you are required to make.
Please refer to CALJIC 8.67 at pages 56 and 57.‖ Sandoval does not claim this
was error.
       Later that morning, the court received a second written question from the
jury: ―If we find the person guilty of count two attempted murder, but find the
attempt not to be premeditated, is this person still guilty of the crime?‖ The
prosecutor and defense counsel, Ringgold, appeared. The trial court asked
Ringgold whether he wanted Sandoval to be present, and Ringgold replied: ―No.
I‘ll waive his presence.‖ The trial court and both counsel agreed to send the jury

                                          41
the following response: ―Yes.‖ Near the end of the following court day, the jury
returned its verdict.
       ― ‗Broadly stated, a criminal defendant has a right to be personally present
at certain pretrial proceedings and at trial under various provisions of law,
including the confrontation clause of the Sixth Amendment to the United States
Constitution, the due process clause of the Fourteenth Amendment to the United
States Constitution, section 15 of article I of the California Constitution, and
sections 977 and 1043. [Citation.]‘ [Citations.] ‗ ―A defendant, however, ‗does
not have a right to be present at every hearing held in the course of a trial.‘ ‖ ‘ ‖
(People v. Jennings (2010) 50 Cal.4th 616, 681 (Jennings).) A defendant has a
right under the Fourteenth Amendment to be present ―at a ‗stage . . . that is critical
to [the] outcome‘ and [if] defendant‘s ‗presence would contribute to the fairness of
the procedure.‘ ‖ (Id. at pp. 681–682.)
       In Jennings, the defendant was not present at a discussion in chambers
between the trial court and counsel at which they discussed how to respond to a
question from the jury during deliberations. We held ―that defendant did not have
a constitutional or statutory right to be personally present during the in-chambers
discussion regarding how to respond to the jury‘s question . . . . The formulation
of an appropriate response to this question was a legal matter, and . . . a defendant
does not have the right to be personally present during proceedings, held in-
chambers and outside of the jury‘s presence, concerning questions of law.‖
(Jennings, supra, 50 Cal.4th at p. 682.)
       Jennings applies here. The fact that the discussion between the court and
counsel about how to respond to the jury‘s question took place in the courtroom
rather than in chambers makes no difference. The jury was not present, and the
discussion involved a legal matter. Sandoval‘s presence would not have
contributed to the fairness of the proceedings.
                                           42
                            IV. PENALTY PHASE ISSUES

       A. Retrial of Penalty Phase
       Sandoval claims it was unconstitutional to conduct a second penalty trial
after the jury in the first penalty trial was unable to reach a verdict. Citing a
―national consensus,‖ he argues that ―if the prosecutor does not convince the
originally empaneled jury to unanimously vote to impose the death penalty, the
federal and state bans on cruel and/or unusual punishment prohibit the prosecutor
from seeking to exact that penalty in a second penalty trial.‖ He acknowledges
that we considered and rejected this argument in People v. Taylor (2010) 48
Cal.4th 574, 633–634, but he ―respectfully raises the issue here in order to
preserve his right to raise the issue in future proceedings, if necessary.‖ Sandoval
presents no persuasive reason for us to revisit this issue. (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 311.)

       B. Removal of Prospective Juror for Cause
       Sandoval argues that the trial court erred in removing for cause Prospective
Juror D.M. during jury selection for the second penalty trial.
       ―[T]he proper standard for determining when a prospective juror may be
excluded for cause because of his or her views on capital punishment . . . is
whether the juror‘s views would ‗prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.‘ . . . [T]his
standard . . . does not require that a juror‘s bias be proved with ‗unmistakable
clarity.‘ This is because determinations of juror bias cannot be reduced to
question-and-answer sessions which obtain results in the manner of a
catechism. . . . [M]any veniremen simply cannot be asked enough questions to
reach the point where their bias has been made ‗unmistakably clear‘; these
veniremen may not know how they will react when faced with imposing the death


                                          43
sentence, or may be unable to articulate, or may wish to hide their true feelings.
Despite this lack of clarity in the printed record, however, there will be situations
where the trial judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law. . . . [T]his is why
deference must be paid to the trial judge who sees and hears the juror.‖
(Wainwright v. Witt (1985) 469 U.S. 412, 424–426, fns. omitted.)
       In the present case, D.M. filled out a lengthy juror questionnaire that asked
about his views on the death penalty. D.M. indicated he was ―for‖ the death
penalty ―in some cases.‖ He said he would be able to vote for the death penalty if
the evidence showed that penalty was appropriate. But when asked, ―Do you
realistically see yourself as a person capable of returning a verdict of death on
another human being?‖ D.M. circled the answer ―Don‘t know.‖ D.M. also circled
―No‖ in response to the question, ―If you had a choice, would you want to be a
juror on this case?‖
       During individual voir dire, the prosecutor asked D.M. whether he saw
himself as a person who could return a death verdict if it was warranted. D.M.
said, ―I thought about it. And I honestly couldn‘t answer you. I‘ve never been in
that situation before.‖ The prosecutor again asked whether D.M. could return a
death verdict if he believed if was warranted, and D.M. answered, ―I think so. I
really don‘t know until I face that situation.‖
       When defense counsel asked whether D.M. could vote either for death or
for life without parole, D.M. replied, ―To be honest, I‘m not sure,‖ adding, ―I think
whether, perhaps I should even have the ability or the power to decide life or
death.‖ D.M. said, ―I‘m not sure whether – I don‘t know. I‘m not sure whether
I‘m up to the responsibility, to be honest.‖ When asked again whether he could
vote for death if he thought it was appropriate, D.M. said, ―To be honest, I could
only say yes until I was at that actual point.‖
                                          44
       D.M. agreed with defense counsel that what was bothering him was that
deciding whether to impose the death penalty was ―a pretty momentous and
difficult decision.‖ When defense counsel asked whether D.M. was ―able to make
decisions in your life, even tough ones,‖ D.M. replied, ―Not very well.‖
       When the prosecutor asked the court to dismiss D.M. ―based on his
ambivalence,‖ the court replied, ―I think so too. I think he‘s too ambivalent . . . .
I don‘t think he can make any decision.‖ The court dismissed D.M., saying ―he
had a problem with just this kind of decision, that this isn‘t the kind of decision
that one should be forced to even make.‖
       The trial court did not dismiss D.M. because he was biased either for or
against the death penalty, but because the court concluded that D.M. would be
unable to make a decision either way. A prospective juror who is unable to reach
a decision is unable to perform the duties of a juror and may be removed for cause.
―At bottom, capital jurors must be willing and able to follow the law, weigh the
sentencing factors, and choose the appropriate penalty in the particular case.
[Citations.]‖ (People v. DePriest (2007) 42 Cal.4th 1, 20.) In determining
whether D.M. was unable to fulfill the role of a juror, we accord deference to the
trial court. (See Uttecht v. Brown (2007) 551 U.S. 1, 9 [―the trial court makes a
judgment based in part on the demeanor of the juror, a judgment owed deference
by reviewing courts‖]; People v. DePriest, supra, at p. 21 [―The trial court is in the
unique position of assessing demeanor, tone, and credibility firsthand—factors of
‗critical importance in assessing the attitude and qualifications of potential
jurors.‘ ‖].)
       We reject Sandoval‘s argument that the trial court erroneously ―applied a
double standard‖ because it denied his motion to remove for cause three
prospective jurors who favored the death penalty. When asked whether she could
be fair and impartial, one such juror answered, ―I think so. I don‘t know.‖
                                          45
Another prospective juror said she was ―really leaning . . . toward the death
penalty‖ because Sandoval had killed a police officer, but assured the court she
would take into account all the evidence before reaching a decision. Similarly, the
third prospective juror indicated he was ―predisposed to the death penalty in the
case of the death of an officer‖ but would listen to evidence of Sandoval‘s
background before making a decision. None of these three prospective jurors
indicated, as D.M. did, that they would not be able to reach a decision.
       In sum, the record before us supports the trial court‘s ruling that D.M. could
not perform the functions of a juror because he was ―too ambivalent‖ to ―make
any decision.‖ The trial court did not err in excusing D.M. for cause.

       C. Use of Profanity by Detective Delfin
       Sandoval contends that the trial court erred in failing to declare a mistrial
after Detective Delfin called Sandoval a ―son of a bitch‖ during his testimony in
the penalty phase retrial.
       The prosecutor called Detective Delfin as a witness at the penalty retrial,
and the detective recounted in moment-by-moment detail what happened when
Sandoval opened fire with his assault rifle on the police vehicle Detective Delfin
was driving. Detective Delfin heard what he recognized as a shot from an assault
weapon and ―noticed that it became extremely hot like someone opened up a pizza
oven. It was hot. And the car was getting filled with gunfire. [¶] I heard glass
breaking. . . . [I]t was like I was in a tornado. The car inside just started
exploding everywhere. There was debris flying, glass, fragments. . . . I got shot
on the right side of my head, and it knocked me senseless. I lost my motor skills.
. . . Pain. From a one to ten scale, a ten. Excruciating pain.‖
       Detective Delfin noticed that Detective Black was not moving and made no
sound. He assumed he had been shot. Detective Delfin then was shot in his right


                                          46
knee, which again caused excruciating pain. The following colloquy then took
place.
         ―[The Prosecutor] When you say the bullet hit you in the knee, what did it
do?
         ―[Detective Delfin] It shattered my whole knee. It shattered the bones. . . .
And the bullet exited in the right inner portion of my leg and tore all the muscle
out too.
         ―Q And as a result of that gunshot, do you have a knee anymore?
         ―A No, sir.
         ―Q What do you have instead?
         ―A I have a prosthetic knee.
         ―Q Does the injury which was caused by this person who chose to fire an
assault weapon into your vehicle, has it altered your ability to pursue your career
as a gang detective?
         ―A Yes.
         ―Q In what way?
         ―A I‘m no longer able to work the streets. The citizens of Long Beach no
longer have an officer who cares as much as I do anymore because this son of a
bitch shot me, man.‖
         The trial court interrupted, sent the jury to the jury room, and called a
recess. Outside the presence of the jury, the trial court denied Sandoval‘s motion
to dismiss the penalty phase and declare a mistrial, ruling that a jury instruction
would be sufficient to cure any prejudice. When the jurors returned, the court
admonished them ―to disregard the profanity that was used in characterizing the
defendant by this witness.‖
         Citing Parker v. Gladden (1966) 385 U.S. 363, Sandoval argues that
Detective Delfin‘s comment was inherently prejudicial because he is a state
                                            47
official. Parker is distinguishable. The court bailiff in Parker told some of the
jurors during deliberations that the defendant was a ― ‗wicked fellow‘ ‖ who was
― ‗guilty‘ ‖ and later added, ― ‗If there is anything wrong [in finding petitioner
guilty] the Supreme Court will correct it.‘ ‖ (Id. at pp. 363-364.) The high court
held that the bailiff‘s comments violated the defendant‘s Sixth Amendment rights
because ― ‗the ―evidence developed‖ against a defendant shall come from the
witness stand in a public courtroom where there is full judicial protection of the
defendant‘s right of confrontation, of cross-examination, and of counsel.‘ ‖ (Id. at
p. 364.) Here, by contrast, Detective Delfin was testifying as a witness and was
subject to cross-examination. His use of profanity was a momentary breach of
decorum that was swiftly and adequately addressed by the trial court.

       D. Juror Misconduct
       Sandoval argues that two alternate jurors engaged in misconduct by
discussing the case prior to deliberations.
       After the jury had been excused for the day following Detective Delfin‘s
testimony, Juror No. 11 told the court clerk that he had overheard two alternate
jurors discussing the case during a break in the jury room. The court notified
counsel and, the next morning, ordered Juror No. 11 to appear outside the presence
of the other jurors. Juror No. 11 said that during the previous day, when the jury
was in the jury room following Detective Delfin‘s use of profanity, one alternate
juror whispered to another alternate juror, asking what the detective had said; ―the
response was the curse word.‖ The alternate juror then said, ―I can‘t believe this is
happening. I think that it‘s not even. The consensus is probably seven to five still.
I don‘t know what these people are thinking.‖
       After the juror had left the courtroom, the trial judge remarked that this
indicated to her ―that somebody has read one of the newspaper articles, because


                                          48
that information was in one of the newspaper articles the other day that the prior
jury had hung seven to five.‖ Both the prosecutor and defense counsel added that
this information also had appeared in earlier newspaper articles.
       The court also examined three jurors who were seated near the alternate
jurors. Two had heard nothing, and the third believed that the alternate jurors had
been discussing the case because ―they were saying like ‗he,‘ ‗him‘ and
whispering,‖ but he could not recall what they had said. The two alternate jurors
were examined. One denied having discussed the case. The other also denied
having discussed the case, but ―vaguely‖ recalled asking someone whether
Detective Delfin had said the phrase ―son of a bitch.‖ The court then examined
each of the remaining jurors individually; each denied hearing any conversation.
The trial court denied Sandoval‘s motions ―for dismissal of the penalty‖ or for a
mistrial and to excuse the two alternate jurors, finding that no misconduct
occurred. Although the court observed that there was ―very conflicting
testimony,‖ it seemed to accept the testimony of Juror No. 11, stating that the
alternate juror‘s purported comments were ―all statements which have nothing to
do with the evidence in the case. But statements dealing with his state of mind,
which they‘re not forbidden to have.‖
       As required by Penal Code section 1122, subdivision (b), the trial court
instructed the jurors at the end of each court day that they were not to ―converse
among themselves . . . on any subject connected with the trial, or to form or
express any opinion about the case until the cause is finally submitted to them.‖
       We agree with Sandoval that it was misconduct for the alternate juror to ask
another alternate juror whether Detective Delfin had used the phrase ―son of a
bitch, ‖ as well as for the alternate juror to express disbelief that the jury appeared
split on whether to impose the death penalty. These comments, which violated the


                                          49
trial court‘s instruction not to discuss the case before deliberations, constituted
misconduct. We must examine whether the misconduct was prejudicial.
       Juror ―misconduct raises a presumption of prejudice that may be rebutted
by proof that no prejudice actually resulted.‖ (People v. Cooper (1991) 53 Cal.3d
771, 835.) We find that the presumption of prejudice was rebutted in this case.
The alternate juror‘s question with respect to Detective Delfin‘s statement was a
trivial and inconsequential breach of the trial court‘s instruction. The alternate
juror‘s expression of disbelief that the jury appeared split, while more serious, was
brief and isolated. It was heard only by one other juror and was not repeated.
(See People v. Manibusan (2013) 58 Cal.4th 40, 59 [juror‘s comments on the
defendant‘s failure to testify were not prejudicial because they were ―merely brief
and passing observations‖]; People v. Avila (2009) 46 Cal.4th 680, 727 [jurors‘
discussion of the defendant‘s failure to testify was not prejudicial because it ―was
not of any length or significance‖].) And the described conversation was between
two alternate jurors, neither of whom participated in deliberations.

       E. Admission of Uncharged Shooting
       Sandoval contends that the prosecutor committed misconduct by supplying
the jury with a portion of Sandoval‘s confession in which he admitted shooting
another person with the weapon he used to shoot Detectives Black and Delfin, and
that defense counsel was ineffective in failing to move for a mistrial when this
error was discovered.
       Three days after the crime, police executed a search warrant for Sandoval‘s
residence. The AR-15 assault weapon that Sandoval had used to shoot the victims
was found covered by a towel behind the stove. After being arrested, Sandoval
made a tape-recorded confession in which he admitted unloading the assault




                                          50
weapon and placing it behind the stove. He also admitted that he previously had
fired the weapon. A 55-page transcript of the confession was prepared.
        Before the recording of his confession was played for the jury at the guilt
phase, Sandoval moved to exclude two lines from the tape and transcript in which
Detective Lassiter asked whether Sandoval had ever shot anyone else with the
assault weapon and Sandoval answered, ―Yes, I have.‖ The prosecutor agreed to
remove those lines from the transcript and not play that portion of the tape for the
jury.
        During the penalty phase retrial, just before the tape recording of
Sandoval‘s confession was played for the jury, the prosecutor gave the jurors
copies of the transcript. While the tape was being played for the jury, defense
counsel interrupted and asked to approach the bench. He noted that Sandoval‘s
statement that he had shot someone else with the murder weapon appeared in the
transcript given to the jury. The bailiff collected the copies of the transcript from
the jurors, and the trial court instructed the jurors that ―there is absolutely no
evidence the defendant ever shot anyone else with the CAR-15, and you‘re
ordered to disregard the statements to that effect.‖ Those lines were deleted from
the original transcript that was later provided to the jury. The remainder of the
tape recording then was played for the jury.
        We reject Sandoval‘s claim that the prosecutor committed misconduct by
including the excluded question and answer in the transcript. ―In general, a
prosecutor commits misconduct by the use of deceptive or reprehensible methods
to persuade either the court or the jury. [Citations.] But the defendant need not
show that the prosecutor acted in bad faith or with appreciation for the
wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated
by a showing of the prosecutor‘s subjective good faith.‖ (People v. Price (1991)
1 Cal.4th 324, 447.) Here, the prosecutor made a mistake that was quickly caught
                                           51
and corrected. The erroneous transcripts were taken from the jurors, and the trial
court gave a clear admonition to cure any harm.
       Nor was defense counsel ineffective in failing to move for a mistrial
because the prosecutor‘s error did not warrant declaring a mistrial. The potential
for prejudice was not great. The jury was erroneously told that Sandoval admitted
he had used the murder weapon to shoot someone else, but the jury already knew
that he had used the murder weapon to kill Detective Black and wound Detective
Delfin. And the jury knew that Sandoval had used an assault rifle to kill Jesus
Cervantez and attempt to kill Steve Romero. Sandoval‘s admission that he had
used the murder weapon to shoot someone else could not have affected the
outcome of the penalty phase, and the trial court‘s timely admonition was
sufficient to cure any harm.

       F. Improper Prosecutorial Argument
       Sandoval claims that the prosecutor committed misconduct by arguing that
Sandoval had grown out his hair to deceive the jury and by anticipating several
arguments he expected defense counsel to make.
       During his argument at the penalty retrial, the prosecutor invited the jury to
consider a videotape taken just prior to the shooting, saying:
       ―[Prosecutor]: . . . Because that‘s the person that was on Lime Avenue.
That‘s the person that went to McDonald‘s; not the guy that started growing his
hair out two months ago to deceive you, because that‘s why he did it. He doesn‘t
have his hair this way, and it won‘t be this way for 15 minutes after your verdict.
       ―[Defense Counsel]: I object. That‘s improper argument.
       ―The Court: Overruled.
       ―[Prosecutor]: He began growing his hair out to deceive you. He began
doing it when he knew this case was coming to trial. That‘s why he did it.


                                         52
       ―[Defense Counsel]: There‘s no evidence of this, your Honor.
       ―The Court: Counsel may argue inferences from the evidence. Overruled.‖
       The trial court did not err. ― ‗It is settled that a prosecutor is given wide
latitude during argument. The argument may be vigorous as long as it amounts to
fair comment on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom. [Citations.]‘ ‖ (People v. Wharton (1991) 53
Cal.3d 522, 567.) We have held that a prosecutor‘s argument that the defendant
had deliberately altered his appearance between the time of the murder and the
time of trial ―was not improper, because it related to the issues of identity and
consciousness of guilt.‖ (People v. Cunningham (2001) 25 Cal.4th 926, 1001; see
People v. Foster (2010) 50 Cal.4th 1301, 1355 [―It is not improper for a
prosecutor to suggest that a defendant deliberately altered his or her appearance to
raise doubt concerning the defendant‘s identity as the perpetrator . . . .‖].)
       Nor did the prosecutor commit misconduct by anticipating arguments that
the jury was ―likely to hear from defense counsel.‖ The prosecutor predicted that
defense counsel would use a triangle to symbolize the population as a whole and
argue that only the ―infinitesimal portion‖ of people at the tip of the triangle
should get the death penalty. The prosecutor also argued that defense counsel
would claim that a sentence of life without the possibility of parole was sufficient
because Sandoval would still be in prison 30 years from now. Defense counsel
objected only when the prosecutor added that if defendant were sentenced to life
without parole ―Thirty years from now he would still have access to all the quality
of life that exists within the prison community; watching television,‖ stating,
―Objection. There‘s no evidence of this, your Honor.‖
       Defendant is precluded from arguing on appeal that the prosecutor
committed misconduct by anticipating arguments defense counsel would raise
―because he failed to timely object and request the jury be admonished.‖
                                          53
[Citations.]‖ (People v. Wharton, supra, 53 Cal.3d at p. 566.) In any event, the
prosecutor‘s argument was proper. There is no misconduct ―where the prosecutor
anticipates the flaws likely to appear in counsel‘s closing argument based upon
evidence that was introduced.‖ (People v. Bemore (2000) 22 Cal.4th 809, 846,
citing People v. Thompson (1988) 45 Cal.3d 86, 113 (Thompson).)

       G. Prosecutorial Misconduct During Argument
       Sandoval contends that the prosecutor committed misconduct during his
argument in the penalty phase retrial by showing the jury a photo montage of the
victims accompanied by music.
       At the end of the prosecutor‘s argument, he played a nearly six-minute
PowerPoint presentation that consisted of still photos introduced into evidence
accompanied by stirring orchestral music. The photos depicted each phase of
Detective Black‘s life, from infancy until his death, culminating with photos of his
lethal wounds and dead body. There were numerous photos of his funeral, which
included full honors and was attended by thousands of uniformed officers.
Detective Delfin was shown both before and after his injury, as was Maria
Cervantes and a photo of the blood-soaked bed in which she was shot. Several
photos showed Sandoval flashing gang signs. The presentation also showed the
murder weapon and the bullet-ridden, bloodstained car that Detectives Black and
Delfin were in when they were shot. Following the presentation, defense counsel
stated without contradiction, outside the presence of the jury, that ―[d]uring the
playing of the video, [juror] number 12, number 7, number 3, and at the end,
number 11 began to openly cry.‖ When the court said it did not see Juror No. 11,
the clerk interjected, ―Yes, including number 11 began to.‖
       Our case law holds that the use of audio-visual presentations dramatizing
the life and death of the victims, though not categorically prohibited, risks


                                         54
injecting an improper degree of emotion into the proceedings. ―Courts must
exercise great caution in permitting the prosecution to present victim-impact
evidence in the form of a lengthy videotaped or filmed tribute to the victim.
Particularly if the presentation lasts beyond a few moments, or emphasizes the
childhood of an adult victim, or is accompanied by stirring music, the medium
itself may assist in creating an emotional impact upon the jury that goes beyond
what the jury might experience by viewing still photographs of the victim or
listening to the victim‘s bereaved parents. . . . In order to combat this strong
possibility, courts must strictly analyze evidence of this type and, if such evidence
is admitted, courts must monitor the jurors‘ reactions to ensure that the
proceedings do not become injected with a legally impermissible level of
emotion.‖ (People v. Prince (2007) 40 Cal.4th 1179, 1289 (Prince); see People v.
Vines (2011) 51 Cal.4th 830, 887 (Vines) [―courts should be cautious about
admitting videotapes featuring the victim‖].)
       Prince upheld the admission of a 25-minute interview with the victim
conducted at a local television station. We were careful to note the unemotional
nature of the evidence: ―[T]he videotaped interview of [the victim] did not
constitute an emotional memorial tribute to the victim. There was no music,
emotional or otherwise. The tape did not . . . display the victim in her home or
with her family, nor were there images of the victim as an infant or young child.
The setting was a neutral television studio, where an interviewer politely asked
questions concerning the victim‘s accomplishments on the stage and as a musician
and the difficulty she experienced in balancing her many commitments, touching
only briefly upon her plan to attend college in the fall and follow the stage as a
profession. . . . The loss of such a talented and accomplished person is poignant
even for a stranger to contemplate, but the straightforward, dry interview depicted


                                          55
on the videotaped recording was not of the nature to stir strong emotions that
might overcome the restraints of reason.‖ (Prince, supra, 40 Cal.4th at p. 1290.)
       In People v. Dykes (2009) 46 Cal.4th 731, we found no error in presenting
an eight-minute video of a murder victim and his family ―preparing for and
enjoying a trip to Disneyland.‖ (Id. at p. 783.) The trial court had deleted the
audio portion of the tape and cautioned the prosecutor that commentary during the
showing of the tape ―should be unemotional.‖ (Id. at p. 784.) We held: ―The
videotape is an awkwardly shot ‗home movie‘ depicting moments shared by [the
victim] with his family shortly before he was murdered. The videotape does not
constitute a memorial, tribute, or eulogy; it does not contain staged or contrived
elements, music, visual techniques designed to generate emotion, or background
narration; it does not convey any sense of outrage or call for vengeance or
sympathy; it lasts only eight minutes and is entirely devoid of drama; and it is
factual and depicts real events.‖ (Id. at p. 785.)
       A three-minute videotape ―of fewer than 20 still photographs‖ of the victim
was properly admitted in People v. Bramit (2009) 46 Cal.4th 1221 because it ―was
not unduly emotional‖ and was ―unenhanced by any soundtrack or commentary.‖
(Id. at pp. 1240–1241.) And in Vines, we upheld the admission of a five-minute
― ‗home movie‘ ‖ of the victim singing and dancing, noting that there was no
―added music‖ and ―it is not a tribute or eulogy, and there is nothing particularly
dramatic or emotional about the performances.‖ (Vines, supra, 51 Cal.4th at
p. 888.) We agreed with the trial court ―that the videotape contained ‗nothing
inflammatory that would divert the jury from [its] proper function,‘ and nothing in
the record suggests the jury in fact reacted emotionally to the playing of the
videotape. We therefore conclude[d] the trial court did not abuse its discretion in
admitting it.‖ (Ibid.)


                                          56
       The presentation in this case was markedly different. The photographs
were accompanied by stirring, emotional music. In People v. Kelly (2007) 42
Cal.4th 763 (Kelly), we said: ―Nonfactual dramatization of the evidence in a
videotape — in the sense of making a presentation in a dramatic manner — adds
irrelevant factors to the videotape. The videotape must factually and realistically
portray the victim‘s life and character and not present a ‗staged and contrived
presentation . . . .‘ [Citation.] Trial courts must not permit irrelevant background
music or video techniques that enhance the emotion of the factual presentation.
Moreover, the videotape, even when presented factually, must not be unduly
emotional. [Citation.]‖ (Kelly, supra, 42 Cal.4th at p. 798; see People v. Verdugo
(2010) 50 Cal.4th 263, 299; People v. Zamudio, supra, 43 Cal.4th at p. 367.) The
music accompanying the photos did not serve ―to remind the jury that the person
whose life was taken as a unique human being‖; it instead appeared designed to
―inflame [the jury‘s] passions more than did the facts of the crime.‖ (Payne v.
Tennessee (1991) 501 U.S. 808, 831, 832 (conc. opn. of O‘Connor, J.).) The
photos themselves had been admitted into evidence, and the prosecutor could
properly have shown them to the jury during his argument. But the trial court
abused its discretion in allowing the prosecutor to present these images with music
designed to amplify their emotional impact. We hold that because background
music in victim impact presentations provides no relevant information and is
potentially prejudicial, it is never permitted. Music in such presentations is
permissible only when it is relevant to the jury‘s penalty phase decision. (See,
e.g., Vines, supra, 51 Cal.4th at p. 888.)
       However, we find ―no reasonable possibility‖ that the jury would have
reached a different penalty verdict if the stirring music had been omitted from the
PowerPoint presentation. (Kelly, supra, 42 Cal.4th at p. 799.) The presentation
came at the end of the four-day penalty trial, during which the evidence focused
                                             57
on the highly aggravated circumstances of the crime. The fact that Sandoval,
using an assault weapon, had fired 28 rounds into a police car, killing one officer
in the line of duty and attempting to kill another, undoubtedly had a considerable
impact on the jury. This impact was amplified by evidence properly admitted
from Detective Black‘s friends and siblings and from Detective Delfin and his
wife about the impact of the shooting. Further, as noted, the photographs of
Sandoval and his victims in the PowerPoint presentation had been properly
admitted. And the jury was also presented with serious aggravating evidence apart
from the circumstances of the crime, i.e., that Sandoval had used an assault
weapon to kill Jesus Cervantez and attempt to kill Steve Romero. It is true that
Sandoval was 18 years old at the time he committed the capital offense, that the
defense offered several witnesses on his behalf at the penalty retrial, and that the
first penalty phase jury did not return a death verdict. But we find no reasonable
possibility, in light of the aggravating evidence presented to the jury, that omitting
the music in the PowerPoint presentation would have resulted in a different
penalty verdict.

       H. Instruction about Life Sentence
       Sandoval claims that the trial court erred in not permitting defense counsel
to tell the jury during argument that a sentence of life without the possibility of
parole would mean that he would never be released from prison.
       Defense counsel argued to the jury that a sentence of life without the
possibility of parole ―means that you will never get out.‖ The prosecutor objected.
Outside the hearing of the jury, the court explained that ―the correct statement of
the law is that you are to assume that it means that.‖ Defense counsel asked the
court ―to admonish them now,‖ and the court told the jury: ―Life without the
possibility of parole . . . you are to assume that it means that.‖ Defense counsel


                                          58
added, ―you are to assume that that‘s what it means because that‘s what it does
mean. It means that Ramon Sandoval will spend the rest of his life in a California
maximum security prison.‖ The court interrupted:
       ―The Court: Excuse me. The jury is not allowed to accept the statement
that life without the possibility of parole means exactly what it is. You‘re to
assume that that‘s what it means. Thank you.
       ―[Defense Counsel]: Well, okay. You‘re to assume that Ramon Sandoval
will spend the rest of his life in a California maximum security prison. Even if he
lives to be 100 years old, you‘re to assume that‘s where he‘s going to die.‖
       As a preliminary matter, we reject the Attorney General‘s contention that
because Sandoval‘s counsel requested the court to admonish the jury that they are
to assume that life without possibility of parole means what it says, Sandoval
forfeited the right to contest that admonition on appeal. Counsel requested that
instruction only after the court informed him that it was improper to tell the jury
that someone sentenced to life imprisonment without possibility of parole ―will
never get out.‖ Sandoval has not forfeited his claim that the trial court erroneously
prevented him making that argument to the jury.
       We also conclude that the trial court erred in not allowing counsel to argue
the finality of life imprisonment without parole. To be sure, we have held in the
context of jury instructions that it is ―incorrect to tell the jury the penalty of death
or life without possibility of parole will inexorably be carried out.‖ (Thompson,
supra, 45 Cal.3d at p. 130.) Thompson explained that such an instruction ―is not
accurate‖ in part because it ―ignores the Governor‘s power of commutation.‖
(Ibid.; see People v. Arias (1996) 13 Cal.4th 92, 172 [instructing jury that a
defendant sentenced to life without possibility of parole ― ‗will spend the rest of
his life confined in state prison‘ ‖ would be ―inaccurate‖ because ―[t]he Governor
may ameliorate any sentence by use of the commutation or pardon power‖].) But
                                           59
in Thompson we distinguished between jury instructions and remarks made during
voir dire. ―In general, impressing the jury with the weight of its responsibility is
beneficial. Hence it was not necessarily error to suggest to them on voir dire that
the sentence they decide on will be carried out. At the stage of formal instruction
to the jury at the penalty phase, however, the effect of the inaccuracy in this
instruction is hard to predict.‖ (Thompson, at p. 131, fn. omitted.) Thompson
extended this logic to counsel‘s closing argument: ―Defense counsel‘s remarks to
the jury during closing argument as to what life without possibility of parole
would really mean and what an unending punishment it would be were also within
the scope of legitimate argument to the extent the remarks impressed on the jury
the gravity of its task.‖ (Id. at p. 131, fn. 29.)
       We have since disapproved of instructing a penalty phase jury to
― ‗assume‘ ‖ that its sentence will be carried out. (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 206 (Letner and Tobin).) Instead, we have concluded that if
an instruction on this subject is given, it should simply admonish the jury to
refrain from speculating on matters beyond the evidence and the trial court‘s
instructions. (Ibid.) But we have not revised the distinction recognized in
Thompson between trial court instruction on this topic and statements made during
voir dire or closing argument. Defense counsel is permitted to argue that life
without possibility of parole is an ―unending punishment‖ to impress upon the jury
the ―gravity of its task‖ –– that it is choosing between the two harshest
punishments available under the law. (Thompson, supra, 45 Cal.3d at p. 131, fn.
29.) In this particular context, counsel is permitted to argue that the sentence of
imprisonment for life without the possibility of parole means the defendant will
not be released from prison –– a legally accurate description of the sentence ––
without reference to the speculative factual possibility that the sentence may not
be carried out. Claiming that Thompson should not be followed, Justice Chin cites
                                            60
People v. Smith (2003) 30 Cal.4th 581, 636, where we noted without explanation
that defense counsel‘s statement that the defendant will ―never have a parole
hearing‖ was inaccurate. But we went on to note that both sides in that case
argued without objection that if spared execution, the defendant would die in
prison; as a result, ―[t]he jury understood the significance of its choices.‖ (Ibid.)
We are unpersuaded that Smith eclipses the rule set forth in Thompson that we
follow today.
       We therefore turn to the question of whether the error was harmless. We
first note that the Attorney General has not argued harmless error, which
complicates our task. We are bound by article VI, section 13 of the California
Constitution, which says: ―No judgment shall be set aside, or new trial granted, in
any cause, on the ground of misdirection of the jury, or of the improper admission
or rejection of evidence, or for any error as to any matter of pleading, or for any
error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.‖ The plain meaning of this
provision is that a reviewing court may not reverse a judgment without addressing
harmless error. But ―as a general rule, ‗[o]ur adversary system is designed around
the premise that the parties know what is best for them, and are responsible for
advancing the facts and arguments entitling them to relief.‘ ‖ (Greenlaw v. United
States (2008) 554 U.S. 237, 244; see also Carducci v. Regan (D.C. Cir. 1983) 714
F.2d 171, 177 (Scalia, J.) [―The premise of our adversarial system is that appellate
courts do not sit as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued by the parties before
them.‖].) Courts in other jurisdictions have warned of ―the dangers of allowing
sua sponte consideration of harmlessness,‖ including ―the potential burden on
reviewing courts of searching the record without guidance from the parties and
                                          61
encouragement of sloppy practice by lawyers.‖ (Gover v. Perry (6th Cir. 2012)
698 F.3d 295, 300.) Furthermore, courts have warned that ―[t]he practice may
unfairly tilt the scales of justice by authorizing courts to construct the
government‘s best arguments for it without providing the defendant with a chance
to respond.‖ (U.S. v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093, 1101.)
       When the government has made no case for harmless error, some federal
authorities have held that a reviewing court has discretion whether to conduct a
harmless error inquiry and that the exercise of such discretion to find an error
harmless requires ―a double level of certainty: we must be convinced that the
error was ‗harmless beyond a reasonable doubt‘ and that ‗satisfaction of that
standard is beyond serious debate.‘ ‖ (U.S. v. Brooks (9th Cir. 2014) 772 F.3d
1161, 1171.) Under article VI, section 13 of the California Constitution, we do not
have discretion to reverse a judgment without first conducting harmless error
review. But even if we were to ask, in light of the government‘s failure to argue
harmless error, whether it is beyond serious debate that the error was harmless
under Chapman, we would conclude that it was in this case. An instruction about
a sentence of life without possibility of parole that, although imperfect, does not
misinform the jury will generally not be the basis for a reversal in the absence of
evidence of juror confusion or concern about the subject. (See Letner and Tobin,
supra, 50 Cal.4th at pp. 206–207.) We find no such evidence on this record.
Moreover, it is highly doubtful the jury would draw a prejudicial implication from
the trial court‘s fine distinction between ―accepting‖ and ―assuming‖ that a
sentence of life without possibility of parole will be carried out. We therefore
perceive no prejudice either from the trial court‘s ruling preventing Sandoval‘s
counsel from arguing that his sentence ―means that you will never get out‖ or from
its admonition to ―assume‖ the same.


                                           62
       I.   Instruction that Jurors Need Not Agree
       Sandoval argues that the trial court erred in refusing his request to instruct
the jury that ―[t]he jurors need not unanimously agree on whether a particular
mitigating circumstance is present.‖ Sandoval requested the following jury
instruction: ―A mitigating circumstance does not have to be proved beyond a
reasonable doubt to exist. The jurors need not unanimously agree on whether a
particular mitigating circumstance is present. Each juror, in his or her own
individual assessment of the evidence, may find that a mitigating factor exists if he
or she finds there is any substantial evidence to support it.‖ The trial court refused
to give the requested instruction because ―it‘s covered by the other instructions.‖
       The trial court did not err. ―We repeatedly have held the trial court does
not have to instruct the penalty phase jury that . . . a juror may find that a
mitigating circumstance exists if there is any substantial evidence to support it, [or
that] . . . there is no requirement that all jurors agree on any factor in mitigation
. . . .‖ (People v. Lee (2011) 51 Cal.4th 620, 655.) ―The trial court is not required
to instruct that mitigating factors need not be proven beyond a reasonable doubt
. . . .‖ (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 458.)

       J. Harmless Error
       Sandoval claims that a reviewing court may not conclude that any error
committed during the penalty phase is harmless. As noted, the California
Constitution prohibits a judgment from being set aside unless ―the error
complained of has resulted in a miscarriage of justice.‖ (Cal. Const., art. VI,
§ 13.) Pursuant to this mandate, we have regularly employed harmless error
analysis in deciding whether a death verdict should be affirmed (see, e.g., People
v. Cowan (2010) 50 Cal.4th 401, 491; People v. Gonzalez (2006) 38 Cal.4th 932,
960–961; People v. Ashmus (1991) 54 Cal.3d 932, 990; People v. Brown (1988)
46 Cal.3d 432, 448), and we see no persuasive reason to discard our precedent in

                                           63
favor of a categorical bar on harmless error analysis with respect to penalty phase
error.

         K. Validity of Death Penalty Statutes
         Sandoval contends that the death penalty ―cannot be administered in a
constitutional manner‖ but recognizes that this court ―has repeatedly rejected
challenges to the constitutionality of the death penalty.‖ He raises this challenge
―to preserve his right to litigate the issue in further proceedings if necessary.‖
Sandoval has offered no persuasive reason to revisit our precedent holding that
California‘s death penalty law is constitutional. (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at pp. 468–469.)




                                          64
                                   CONCLUSION
       The judgment with respect to the lying-in-wait special circumstance is
reversed. In all other respects, the judgment is affirmed.
                                                 LIU, J.

WE CONCUR:

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




                                         65
         CONCURRING AND DISSENTING OPINION BY CHIN, J.



       Although I concur in the judgment affirming defendant‘s convictions,
enhancements, and sentence, for reasons explained below, I do not agree that we
should vacate the lying-in-wait special circumstance. Nor do I agree that the trial
court erred in precluding defense counsel from making erroneous and inaccurate
statements to the jury regarding a sentence of life without possibility of parole,
i.e., that the sentence ―means that you will never get out‖ and that defendant ―will
spend the rest of his life in a California maximum security prison.‖ I also do not
subscribe to the majority‘s suggestion that the approach of some federal
authorities to harmless error review when the government fails to make a harmless
error argument may be applicable to California appellate courts. The parties have
not briefed, or even mentioned, this question, no doubt because the majority‘s
suggestion is so clearly at odds with the California Constitution‘s express
commands regarding the review duty of California appellate courts.

       1. Lying in Wait
       One of the special circumstances the jury found true is that defendant
―intentionally killed the victim by means of lying in wait.‖ (Pen. Code, § 190.2,
subd. (a)(15).) Defendant argues that, for two reasons, we should set aside this
finding: (1) the evidence to establish it is insufficient; and (2) the trial court
prejudicially erred in failing to give, sua sponte, an instruction on evaluating
circumstantial evidence. The majority vacates the finding based solely on the
latter argument. In my view, neither argument has merit.

           A. The Court Did Not Err in Failing to Give a Circumstantial
               Evidence Instruction.

       Defendant argues the trial court prejudicially erred in failing to give, sua
sponte, CALJIC No. 8.83 ―and/or‖ CALJIC No. 8.83.1.‖ CALJIC No. 8.83 (6th
ed. 1996) states: ―You are not permitted to find a special circumstance alleged in
this case to be true based on circumstantial evidence unless the proved
circumstance is not only (1) consistent with the theory that a special circumstance
is true, but (2) cannot be reconciled with any other rational conclusion. [¶]
Further, each fact which is essential to complete a set of circumstances necessary
to establish the truth of a special circumstance must be proved beyond a
reasonable doubt. [¶] In other words, before an inference essential to establish a
special circumstance may be found to have been proved beyond a reasonable
doubt, each fact or circumstance upon which that inference necessarily rests must
be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence is
susceptible of two reasonable interpretations, one of which points to the truth of a
special circumstance and the other to its untruth, you must adopt the interpretation
which points to its untruth, and reject the interpretation which points to its truth.
[¶] If, on the other hand, one interpretation of that evidence appears to you to be
reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.‖
       CALJIC No. 8.83.1 (6th ed. 1996) is similar, but specifically addresses
specific intent and mental states. It provides: ―The [specific intent] [mental state]
with which an act is done may be shown by the circumstances surrounding its
commission. But you may not find a special circumstance alleged in this case to
be true unless the proved surrounding circumstances are not only, (1) consistent
with the theory that the defendant had the required [specific intent] [mental state],

                                           2
but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the
evidence as to [any] [specific intent] [mental state] is susceptible of two
reasonable interpretations, one of which points to the existence of the [specific
intent] [or] [mental state] and the other to the absence of the [specific intent] [or]
[mental state], you must adopt that interpretation which points to the absence of
the [specific intent] [or] [mental state]. [¶] If, on the other hand, one
interpretation of the evidence as to the [specific intent] [or] [mental state] appears
to you to be reasonable and the other interpretation to be unreasonable, you must
accept the reasonable interpretation and reject the unreasonable.‖ (Ibid.)
       The federal Constitution does not require the giving of an instruction on
evaluating circumstantial evidence where the trial court correctly instructs the jury
on reasonable doubt. (People v. Livingston (2012) 53 Cal.4th 1145, 1167.)
However, this court ―has long held‖ that, under certain circumstances, ―trial courts
must give ‗an instruction embodying the principle that to justify a conviction on
circumstantial evidence the facts and circumstances must not only be entirely
consistent with the theory of guilt but must be inconsistent with any other rational
conclusion.‘ ‖ (Ibid.)
       In this case, however, the court did not err in failing to give a circumstantial
evidence instruction with respect to lying in wait because two of the circumstances
that would have triggered its duty to give such an instruction were lacking. In her
separate opinion, Justice Corrigan has explained why one of those circumstances
is missing: Sergeant Valdemar‘s testimony, which is the circumstantial evidence
the majority discusses, did not ―reasonably support[] an inference that defendant
did not act with the required mental state.‖ (Dis. opn. of Corrigan, J., post, at p.
3.)
       The other circumstance that was lacking was substantial reliance by the
prosecution on the circumstantial evidence to prove defendant‘s guilt. We have
long and ―consistently‖ held that a trial court must give a circumstantial evidence
instruction only when the prosecution ―substantially relies on [such] evidence to

                                           3
prove its case.‖ (People v. Anderson (2001) 25 Cal.4th 543, 582.) ―Conversely,
the instruction need not be given when circumstantial evidence is merely
incidental to and corroborative of direct evidence . . . .‖ (People v. McKinnon
(2011) 52 Cal.4th 610, 676 (McKinnon).) Indeed, where circumstantial evidence
―is not the primary means by which the prosecution seeks to establish‖ its case, the
instruction ―should not be given‖ because it ―may confuse and mislead‖ the jury.
(Anderson, supra, at p. 582.) Under our decisions, this is true even if the
circumstantial evidence is ―substantial,‖ arguably ―central‖ to the prosecution‘s
case, and ―strong,‖ either in the abstract or in comparison to the ―quality of the
direct evidence‖ that it ―bolsters, corroborates, or supports.‖ (McKinnon, supra, at
p. 676 & fn. 40.) It is also true even if the defendant‘s mental state is at issue; a
circumstantial evidence instruction is not required if that mental state is ―proved
by inference drawn from the direct evidence of [the] defendant‘s conduct,‖
including the defendant‘s own extrajudicial statements and the testimony of
eyewitnesses. (People v. Wiley (1976) 18 Cal.3d 162, 175.)
       Under these principles, because the prosecution in this case primarily relied
on direct evidence to prove the lying-in-wait special circumstance, the trial court
did not err in failing to give, sua sponte, a circumstantial evidence instruction in
connection with that special circumstance. During discussions about jury
instructions, defendant‘s counsel objected to instructing on lying in wait, arguing
there ―wasn‘t sufficient evidence for‖ doing so. In response, the prosecution relied
only on evidence provided by defendant‘s ―own statement.‖ The court agreed
with the prosecution, stating: ―The evidence supports those comments, including
the evidence by Mr. Falconer who was an eyewitness to the shooting.‖
       Consistent with the preceding comments, in its opening argument to the
jury after the close of evidence, with respect to the lying-in-wait special
circumstance, the prosecution relied on the defendant‘s confession, the testimony
of eyewitnesses, and inferences that could be directly and reasonably drawn from
that direct evidence. Specifically, the prosecution argued: ―Remember what all

                                           4
the testimony is here? Jimmy Falconer, the defendant, and Rick Delfin. What did
they say happened here? Jimmy Falconer said it was like shooting fish in a barrel.
They never gave them a chance. What does Rick Delfin tell you? I never saw
him. I didn‘t think he‘d ever stop shooting. I was sitting in a police car looking at
this other guy planning to go talk to this guy, Camacho, when this ambush assault
occurred. What does the defendant say? They never looked at me. Why did you
hide behind the car? They never seen me. What did you do when you popped up?
I shot them when they weren‘t looking. That‘s an ambush. That‘s what lying in
wait is all about. This concealment, hiding of himself, is where you get the lying
in wait. He sees the police officer, ducks down, and waits to see whether it‘s
necessary, whether it‘s appropriate to for him to begin shooting, whether it‘s going
to be necessary to kill the police officers, depending on their conduct. And he
watches and he waits. And he sees what they do. And they kind of do what a
gang member would expect, they go over and focus on the gang member that‘s
across the street on his way up to Toro‘s house to ring the bell and kill Toro. As
they‘re approaching him getting ready to contact him and ultimately arrest him
and prevent having Toro killed, this defendant instead of having his homeboy
arrested, the focus was on the police officer on the opposite side of the street. He
discharged his assault weapon into Detective Black and killed him.‖
       As is readily apparent, in its opening argument, the prosecution relied on
reasonable inferences from the direct evidence, and made no reference to expert
testimony. However, in a completely separate part of its opening argument, the
prosecution did expressly and precisely explain ―why gang experts [had been]
called‖: to address issues related to charges that had a gang component, e.g.,
―intentional killing by an active street gang member‖ or ―an active participant in a
criminal street gang,‖ ―crimes committed for the benefit of a criminal street
gang,‖ engaging ―in a pattern of criminal gang activity,‖ ―the primary activities of
the gang.‖ Thus, the record clearly demonstrates that, in its opening argument, the


                                          5
prosecution did not substantially rely on Sergeant Valdemar‘s testimony to prove
lying in wait; indeed, it did not rely on that testimony at all.
       The majority ignores this clear record in concluding otherwise, i.e., in
finding that the prosecution‘s opening argument regarding the lying-in-wait
special circumstance was ―unmistakably a reference to Sergeant Valdemar‘s
testimony.‖1 (Maj. opn., ante, at p. 27.) It then compounds this factual error with
a legal one: engaging in a mode of analysis that we clearly rejected just four years
ago. In McKinnon, the defendant based his argument that circumstantial evidence
was ―central to the prosecution‘s case,‖ such that a circumstantial evidence
instruction should have been given, on ―the ‗quality‘ of the evidence,‖ asserting
that a finding of substantial reliance is appropriate when ―the quality of the direct
evidence is weak, and the quality of the circumstantial evidence is strong.‖
(McKinnon, supra, 52 Cal.4th at p. 676 & fn. 40.) We rejected that argument,
finding ―no persuasive authority for our consideration of [the quality of the
evidence] in analyzing whether an instruction on circumstantial evidence was
required.‖ (Id. at p. 676, fn. 40.) The majority‘s reasoning here — that the
circumstantial evidence ―was critical to‖ the prosecution‘s case ―because‖ it was
―the principal evidence in support of the prosecution‘s theory‖ (maj. opn., ante, at
p. 27, italics added) — is virtually the same argument we rejected in McKinnon —
that the circumstantial evidence ―was central to the prosecution‘s
case‖ (McKinnon, supra, at p. 676). It rests on the very ―factor‖ — the relative
― ‗quality‘ of the evidence‖ — we held in McKinnon should not be considered.
(Id. at p. 676, fn. 40.) Adopting the mode of analysis we rejected in McKinnon,
the majority in essence concludes that the prosecution substantially relied on

1       Notably, although initially asserting that the prosecution‘s argument was
―unmistakably a reference to‖ Sergeant Valdemar‘s testimony (maj. opn., ante, at
p. 27), two paragraphs later, the majority characterizes the supposed reference as
―oblique‖ (id. at p. 28). As I have explained, the record belies either
characterization.


                                           6
Sergeant Valdemar‘s testimony because ―the quality of [that] circumstantial
evidence is strong‖ and ―the quality of the direct evidence‖ — defendant‘s
confession and the eyewitness testimony — ―is weak‖ as to the duration of the
watching and waiting. (McKinnon, supra, 52 Cal.4th at p. 676, fn. 40.) Thus, the
majority‘s reasoning is not only factually inconsistent with the record, it is
analytically contrary to our recent precedent.2
       The majority correctly notes that the prosecution addressed Sergeant
Valdemar‘s testimony during its rebuttal argument (maj. opn., ante, at p. 27), but
the majority‘s discussion of that circumstance is incomplete and misleading.
According to the majority, the prosecution was ―responding‖ to defense counsel‘s
―arguments that there was no premeditation or lying in wait.‖ (Ibid.) However,
the record shows that, in fact, the prosecution was responding to defense counsel‘s
argument regarding ―premeditation,‖ not lying in wait. Specifically, defense
counsel charged that the prosecution had ―brought‖ Sergeant Valdemar ―in here
because [it] knows that [its] evidence on premeditation is weak. So [it‘s] trying to
get Sergeant Valdemar up here to say, Oh, yes, if you see someone with a long
gun, that means they‘re prepared to shoot a policeman.‖ (Italics added.) In
rebuttal, the prosecution responded that defense counsel‘s ―suggestion that Rich
Valdemar was called because our case was weak is so far from the truth.‖ In its
ensuing comments, the prosecution stated, among other things: ―This is the way
[criminal street gangs] deploy their troops. This is the way they commit these
types of crimes. They do consider law enforcement‘s presence. They do bring

2      The majority‘s response — that Sergeant Valdemar‘s testimony ―did not
bolster any direct evidence of the prosecution‘s theory‖ (maj. opn., ante, at p.
28) — obviously overlooks the compelling inferences the direct evidence supports
(see post, at pp. 10-12) and our established rule, as stated above, that a
circumstantial evidence instruction is not required where mental state is proved
―by inference drawn from the direct evidence of [the] defendant‘s conduct,‖
including the defendant‘s own extrajudicial statements and the testimony of
eyewitnesses. (People v. Wiley, supra, 18 Cal.3d at p. 175, italics added.)


                                          7
long arms in order to fend off police in the apprehension of their fellow
gangsters.‖ Given that the prosecution was responding to defense‘s counsel
comments about the weakness of the evidence ―on premeditation,‖ the jury no
doubt understood this statement as directed at that issue, not at lying in wait.
       In any event, although briefly discussing Sergeant Valdemar‘s testimony,
the prosecution, consistent with its focus during opening argument, spent most of
its rebuttal emphasizing the inferences supported by the following direct
evidence provided by defendant‘s confession and the eyewitness testimony: (1)
defendant went to a gang meeting where he and other gang members agreed to go
to Toro‘s house and shoot him in retaliation for an earlier drive-by shooting; (2)
defendant retrieved a fully automatic assault weapon he had earlier loaded, and
took it with him to shoot Toro; (3) as defendant was exiting his parked car with the
assault weapon, he saw the police officers approaching in their car and ducked
down behind his car to conceal himself; (4) while he was behind the car, he
continued watching the police as they moved down the street, approached his
position, and started looking at Camacho; and (5) in order to prevent the officers
from sending Camacho to jail for violating parole, defendant stood up and started
shooting at them with the assault weapon. Under McKinnon, even assuming ―the
incriminating effect of‖ Sergeant Valdemar‘s testimony was ―substantial,‖ because
that testimony ―complemented, and was merely corroborative of, defendant‘s
admissions‖ and other eyewitness testimony, the trial court ―was not obligated to
instruct on circumstantial evidence.‖3 (McKinnon, supra, 52 Cal.4th at p. 676.)


3       In another part of its opinion, the majority correctly holds that, with respect
to the prosecution‘s theory of premeditated and deliberate murder, no
circumstantial evidence instruction was required because the prosecution
emphasized the direct evidence — defendant‘s confession and the manner of
killing — and did not substantially rely on Sergeant Valdemar‘s testimony. (Maj.
opn., ante, at pp. 35-36.) The majority fails to explain how it justifies reaching the
opposite conclusion with respect to lying in wait, given that the prosecution‘s
                                                            (footnote continued on next page)

                                           8
             B. Any Error in Failing to Give a Circumstantial Evidence Instruction
                Was Harmless.

        Even had the trial court erred in failing to give a circumstantial evidence
instruction as to lying in wait, reversal would be unwarranted because there is no
reasonable probability defendant would have obtained a more favorable result had
the court given the instruction.
        In concluding otherwise, the majority reasons: (1) Sergeant Valdemar‘s
testimony ―was the principal evidence‖ supporting ―the prosecutor‘s theory‖ that
the period of watching and waiting began when defendant spotted the officers; (2)
a properly instructed jury might have ―discounted‖ Sergeant Valdemar‘s
testimony, which would have foreclosed the prosecutor‘s theory; (3) absent
Sergeant Valdemar‘s testimony, ―[i]t is unlikely‖ the jury would have concluded
that the period of watching and waiting began when defendant spotted the officers;
(4) instead, given that defendant‘s confession ―makes no mention of any thought
about killing the police until they approached Camacho,‖ the jury would likely
have concluded that the period of watching and waiting did not begin until
defendant ―noticed the police looking at Camacho‖; and (5) ―[i]t is unlikely‖ the
jury would have concluded that ―the very brief, indeterminate time between‖ the
moment defendant saw the officers looking at Camacho and the moment
defendant started shooting was ―sufficiently substantial‖ to prove the truth of the
special circumstance allegation. (Maj. opn., ante, at p. 30.)
        The majority‘s analysis contains several errors. First, as demonstrated
above, Sergeant Valdemar‘s testimony was not the principal evidence on which



(footnote continued from previous page)

remarks about Sergeant Valdemar‘s testimony were expressly directed at the issue
of premeditation, not lying in wait, and that the prosecution emphasized the same
direct evidence in arguing both issues to the jury.


                                           9
the prosecution relied to prove lying in wait; instead, the prosecution relied
principally on the direct evidence — defendant‘s confession and the eyewitness
testimony — and the reasonable inferences that direct evidence supported.
Indeed, the prosecution did not even mention Sergeant Valdemar‘s testimony until
its rebuttal, and then only in response to defendant‘s charge about the weakness of
the prosecution‘s case on premeditation. Thus, the discounting of Sergeant
Valdemar‘s testimony would not have foreclosed the prosecution‘s theory; it
would have had little, if any, effect on that theory.
       Second, based on the direct evidence alone, it is highly likely the jury
would have concluded that the period of watching and waiting began when
defendant spotted the officers, and highly unlikely it would have concluded that
the period did not begin until defendant saw the officers looking at Camacho.
That direct evidence shows the following: Out of loyalty to his own gang and to
retaliate against Toro‘s gang for a drive-by shooting, defendant retrieved a fully
automatic AR-15 assault weapon he had earlier loaded with about 30 rounds of
ammunition, went to a meeting with other gang members, and made a plan to go
together to Toro‘s house and kill him. Pursuant to the plan, defendant, carrying
the assault weapon, followed a car containing Camacho and other gang members
to Toro‘s street. There, after parking along the sidewalk, defendant started exiting
his car with his weapon. He saw the officers approaching in a police car. At this
point, Camacho, whom defendant knew to be violating parole by carrying a
weapon, was already walking on the sidewalk, in plain view of the officers. Upon
spotting the approaching police car, defendant did not throw his weapon away or
flee. Instead, he ducked down behind his car, still holding the AR-15. But even
when he ducked down, he did not completely conceal himself. Instead, he kept a
close watch on the officers as they slowly moved closer to Camacho. With the
police car still one or two car lengths away, defendant saw the officers looking at
Camacho and decided he would shoot them in order to prevent them from taking
Camacho to jail for violating parole. When the police car was right next to him,

                                          10
he opened fire, shooting at least 28 times. On this evidence, there is no reasonable
chance that, absent Sergeant Valdemar‘s testimony, the jury would have found
that when defendant, a loyal gang member who had armed himself with a loaded,
fully automatic assault weapon in order to carry out a retaliatory hit with Camacho
and other members of his gang, spotted the officers approaching Camacho, ducked
down with his weapon, and continued tracking the officers‘ movements, he was
not contemplating shooting them in order to protect Camacho. Instead, it is highly
likely the jury would have concluded that defendant began contemplating shooting
the officers at virtually the moment he ducked down with his weapon and started
tracking their movements as they slowly approached.
       Third, under the instructions the jurors received, even had they concluded
that the period began when defendant saw the officers looking at Camacho, there
is no reasonable probability they would have reached a different conclusion based
on the direct evidence. In his confession, defendant stated that the police car was
―just like two cars — like one car‖ north of his position when he saw the officers
looking at Camacho, and was ―right next to‖ his position, ―about 10 feet away,‖
when the shooting occurred. Defendant did not state that he started shooting as
soon as the car pulled up right next to him. Detective Delfin, however, did
provide relevant evidence on this point. He testified that, as he was driving down
Lime Avenue, he ―slowed up‖ upon spotting a double parked car and ―stopped
about two car lengths behind‖ it. He then saw Camacho ―by the back of the
bumper‖ of the double-parked car and ―made eye contact‖ with him. He
―continued observing‖ and making ―eye contact with‖ Camacho as Camacho
―walked in an eastbound direction across Lime.‖ Based on his observations of
Camacho‘s ―walk‖ and ―mannerisms,‖ Detective Delfin ―formed the opinion‖ that
Camacho might be carrying a firearm. He decided to ―go get this guy and talk to
him,‖ but before he was able to exit his car, ―someone started unloading on‖ him
and Detective Black. Thus, the evidentiary record shows that, between the time
defendant saw the officers looking at Camacho and the time defendant started

                                         11
shooting, the police car slowly moved forward one or two car lengths until
stopping in a location right next to defendant, and Detective Delfin then watched
Camacho walk across the street, made sustained ―eye contact with‖ Camacho,
observed Camacho‘s walk and mannerisms long enough to form the opinion that
he might be carrying a firearm, and made a decision to go talk to Camacho.
       Under the jury instructions, on this direct evidence alone, there can be no
doubt the jury would have found the period of watching and waiting sufficient.
On this issue, the court correctly instructed the jury that ―[t]he lying in wait need
not continue for any particular period of time provided that its duration is such as
to show a state of mind equivalent to premeditation or deliberation.‖ Only
moments before giving that instruction, the court instructed the jury that ―[t]he law
does not undertake to measure in units of time the length of the period during
which the thought must be pondered before it can ripen into an intent to kill which
is truly deliberate and premeditated,‖ that ―the true test‖ for premeditation and
deliberation ―is not the duration of time but rather the extent of the reflection,‖ that
―the slayer must weigh and consider the consequences and consider the question
of killing and the reasons for and against such choice, and having in mind the
consequences, he chooses to and does kill,‖ and that ―[a] cold, calculated
judgment and decision may have been arrived at in a short period of time.‖ Under
these instructions, the jury would surely have found that the ―duration‖ of the
period was ―such as to show a state of mind equivalent to premeditation or
deliberation‖ given the evidence that defendant, having watched the officers
approach Camacho and decided to kill them when he saw them looking at
Camacho, waited to begin firing long enough for them to drive slowly forward
another one or two car lengths, stop their car right next to his position, make
sustained eye contact with Camacho, and observe him long enough to form an
opinion he might be carrying a firearm.
       Indeed, the majority itself confirms this conclusion by holding that, as to
the first degree murder conviction based on the ―theory of premeditation and

                                          12
deliberation,‖ any error in failing to give a circumstantial evidence instruction was
harmless. (Maj. opn., ante, at p. 36.) As explained above, the prosecution‘s
remarks during rebuttal about Sergeant Valdemar‘s testimony — as well as
defense counsel‘s remarks on that subject — were expressly directed, not at the
issue of lying in wait, but at the issue of premeditation. The majority nevertheless
finds no ―reasonable probability‖ that a circumstantial evidence instruction ―would
have resulted in a more favorable verdict‖ on the issue of premeditation and
deliberation. (Ibid.) ―The strong direct evidence of premeditation and
deliberation,‖ the majority explains, ―means that even if the jury discounted
Sergeant Valdemar‘s testimony,‖ ―there is no reasonable chance it would have
returned a second degree rather than first degree murder verdict.‖ (Ibid.) I agree.
But the majority fails to explain how a jury that necessarily would have found the
period to be of sufficient duration to constitute premeditation and deliberation
would not necessarily also have found, in accordance with the trial court‘s correct
jury instructions on premeditation and lying in wait, the very same period to be of
a ―duration . . . such as to show a state of mind equivalent to premeditation or
deliberation.‖ Thus, under the jury instructions, the majority‘s harmless error
finding with respect to premeditated and deliberate murder compels a similar
conclusion with respect to lying in wait.
       Rather than respond to this analysis, the majority mischaracterizes it.
Contrary to the majority‘s suggestion, I do not contend that a conclusion ―there
was insufficient evidence of‖ lying-in-wait murder ―mean[s] there was no
premeditation and deliberation,‖ or that these different forms of murder ―must be
established by‖ the same ―route.‖ (Maj. opn., ante, at p. 32.) Indeed, neither I nor
the majority concludes ―there was insufficient evidence of lying-in-wait.‖ (Ibid.)
What I do contend is that given the majority‘s correct conclusion that ―there is no
reasonable chance,‖ in light of ―[t]he strong direct evidence of premeditation and
deliberation‖ — defendant‘s ―confession and the manner of killing‖ — that the
jury would not have found that defendant had that mental state (id. at p. 36), it

                                            13
logically follows that ―there is no reasonable chance‖ (ibid.), in light of that same
direct evidence and the applicable jury instructions, that the jury would not have
found the period in question to have been of a ―duration . . . such as to show a state
of mind equivalent to premeditation or deliberation.‖ The majority fails to explain
its contrary conclusion.

           C. The Evidence Was Sufficient.

       On the claim the majority does not reach — the sufficiency of the
evidence — defendant contends only that the period of watching and waiting was
of insufficient duration. He is incorrect.
        ―The purpose of the watching and waiting element is to distinguish those
cases in which a defendant acts insidiously from those in which he acts out of rash
impulse.‖ (People v. Stevens (2007) 41 Cal.4th 182, 202 (Stevens).) We have
never required a ―fixed, quantitative minimum time‖ limit as to this requirement.
(People v. Bonilla (2007) 41 Cal.4th 313, 333.) ―Indeed, the opposite is true, for
we have previously explained that ‗[t]he precise period of time is . . . not critical.‘
[Citation.]‖ (People v. Moon (2005) 37 Cal.4th 1, 23.) ―Even a short period of
time is sufficient to overcome an inference that a defendant acted rashly.
[Citation.]‖ (People v. Russell (2010) 50 Cal.4th 1228, 1245.) As the trial court
instructed the jury, the period ―need not continue for any particular length ‗ ―of
time provided that its duration is such as to show a state of mind equivalent to
premeditation or deliberation.‖ ‘ ‖ (Stevens, supra, at p. 202, fn. omitted.)
       Applying these principles and viewing the record, as discussed above, in
the light most favorable to the judgment, I conclude that a reasonable trier of fact
could find this element proved beyond a reasonable doubt by evidence that
defendant, having carefully watched the officers from his hidden position and
having decided to shoot them in order to prevent their apprehension of Camacho,
then waited until they slowly pulled up next to him, stopped, and watched
Camacho cross the street, before he stood up and opened fire. As the majority

                                             14
correctly concludes, this evidence provides ―little indication that the murder was
rash and impulsive.‖ (Maj. opn., ante, at p. 34.) Indeed, defendant‘s behavior
―dispel[s] any inference that he killed as a result of rash impulse‖; it ―is
completely consistent with, and ―provides substantial evidence for, the watching
and waiting element of the lying-in-wait special circumstance.‖ (Stevens, supra,
41 Cal.4th at p. 203; see People v. Lewis (2008) 43 Cal.4th 415, 511 [evidence that
the defendant watched the victim ―for at least the time it took her to open the
passenger door of her car and begin ‗doing something in . . . the backseat‘ ‖ was
sufficient to establish watching and waiting element].)

       2. Defense Counsel’s Erroneous Statements About Life Without the
           Possibility of Parole

       During his closing argument in the penalty phase retrial, defense counsel
told the jury that a sentence of life without the possibility of parole ―means that
you will never get out.‖ The prosecutor objected and, outside of the jurors‘
presence, asserted that ―case law does not allow you [to argue] an inaccurate
statement.‖ The trial court commented that ―the correct statement of the law is
that you are to assume that it means that.‖ Defense counsel, without disagreeing
with the court, then stated, ―I would ask you to admonish them now.‖ The court
did as defense counsel requested, telling the jurors: ―Life without the possibility
of parole, that sentence, you are to assume that it means that. That is the statement
of the law. You are to assume [it] means life without the possibility of parole.‖
Defense counsel then added: ―[Y]ou are to assume that that‘s what it means
because that‘s what it does mean. It means that Ramon Sandoval will spend the
rest of his life in a California maximum security prison.‖ The court interrupted
counsel and stated: ―The jury is not allowed to accept the statement that life
without the possibility of parole means exactly what it is. You‘re to assume that
that‘s what it means.‖



                                          15
       Consistent with defense counsel‘s failure to disagree with the trial court‘s
statement, defendant concedes on appeal that, under our case law, it was
―permissible‖ for the court to tell the jury ―to assume‖ that a sentence of life
without the possibility of parole would result in a capital defendant ―spending the
rest of his/her life in prison.‖ Indeed, at the time of defendant‘s penalty phase
retrial in 2003, we had expressly so held in numerous cases.4 (People v. Kipp
(1998) 18 Cal.4th 349, 378–379; People v. Fierro (1991) 1 Cal.4th 173, 250;
People v. Thompson (1988) 45 Cal.3d 86, 131 (Thompson).)
       However, citing Thompson, defendant argues that the trial court
prejudicially erred in precluding his counsel from telling the jury that a sentence of
life without the possibility of parole would ―in fact result in the defendant never
being released from prison,‖ and in ―correcting‖ his counsel‘s statement that the
sentence ―would actually result in life imprisonment.‖ The majority agrees with
defendant. (Maj. opn., ante, at pp. 59-61.) For reasons that follow, I do not.
       As the prosecution correctly asserted at trial in support of its objection,
―case law does not allow [counsel] to . . . argue an inaccurate statement.‖
―Arguments of counsel [that] misstate the law are subject to objection and to
correction by the court.‖ (Boyde v. California (1990) 494 U.S. 370, 384.) Indeed,


4       In 2010, years after defendant‘s retrial, we held that a trial court ―did not err
by refusing‖ to give such an instruction because stating that jurors ―should
‗assume‘ or ‗presume‘ that the sentence will be carried out obscures the purpose of
the instruction‖ and ―is misleading in the sense that, although other presumptions
and assumptions that juries are instructed to consider have their bases in logic and
experience, a presumption or assumption that the sentence will be carried out is, in
fact, contradicted by the real possibility, of which some jurors may be aware, that
the sentence will not be carried out.‖ (People v. Letner and Tobin (2010) 50
Cal.4th 99, 206.) We did not hold that courts that had followed our prior decisions
and given such an instruction had erred, but we suggested that, ―[i]n the future,‖ a
court ―might‖ instead instruct jurors that, in determining punishment, they ― ‗must
not be influenced by speculation or by any considerations other than those upon
which I have instructed you.‘ ‖ (Ibid.)


                                           16
a trial judge has both ―the right‖ and ―the duty to curtail defense counsel,‖ not just
the prosecution, ―from making incorrect or incomplete statements of law.‖
(People v. Ott (1978) 84 Cal.App.3d 118, 132 (Ott).) Thus, although a court has
discretion to ―allow counsel to incorporate correct statements of law in [their]
argument,‖ ―it must sustain an objection to an incorrect statement of law.‖
(People v. Suddeth (1966) 65 Cal.2d 543, 548, italics added (Suddeth).)
       We have long and consistently held that telling jurors the defendant, if
sentenced to life without the possibility of parole, will never be released and will
remain in prison for the rest of his or her life, or will never be considered for
parole and will not be paroled at any time, is ―an incorrect statement of the law.‖
(People v. Adams (2014) 60 Cal.4th 541, 581; People v. Whalen (2013) 56
Cal.4th 1, 88; People v. Letner and Tobin, supra, 50 Cal.4th at p. 204; see also
People v. Smith (2003) 30 Cal.4th 581, 635 (Smith) [it would be ―inaccurate‖ to
tell jurors that a sentence of life without possibility of parole ― ‗means
imprisonment for the rest of [the defendant‘s] natural life‘ ‖].) Such statements
are ―erroneous‖ in light of the Governor‘s commutation and pardon powers and
the possibility that the law‘s sentencing provisions might be invalidated. (People
v. Holt (1997) 15 Cal.4th 619, 688.) As we have explained, ―[t]he Governor may
ameliorate any sentence by use of the commutation or pardon power . . . . ‖
(People v. Arias (1996) 13 Cal.4th 92, 172.) Thus, under our decisions, the
majority is simply incorrect in asserting, without citation of authority, that defense
counsel‘s remarks were ―legally accurate.‖ (Maj. opn., ante, at p. 60.)
       It inexorably follows from these well-established principles that, upon the
prosecution‘s objection, the trial court in this case did not err in precluding defense
counsel from making the incorrect argument that life without the possibility of
parole ―means‖ that the defendant ―will never get out‖ and ―will spend the rest of
his life in a California maximum security prison.‖ Indeed, consistent with these
principles and this conclusion, in Smith, supra, 30 Cal.4th at page 636, we
unanimously rejected the defendant‘s contention that the trial court had erred in

                                          17
―sustain[ing] an objection when defense counsel started to argue that defendant
would never have a parole hearing.‖ ―[T]his argument,‖ we reasoned, ―would
have been inaccurate.‖ (Ibid.) Following Smith, we should similarly reject
defendant‘s argument.
       In reaching a contrary conclusion, the majority ignores these bedrock
principles and declines to follow Smith, choosing instead to rely entirely on dictum
defendant cites from Thompson. As here relevant, our holding in Thompson was
that the trial court had properly declined to instruct jurors that if they selected a
death sentence, ― ‗the sentence will be carried out,‘ ‖ and that if they selected life
without the possibility of parole, ― ‗the defendant will never be released from
prison.‘ ‖ (Thompson, supra, 45 Cal.3d at p. 129.) Such an instruction is
―[in]accurate‖ and ―incorrect,‖ we explained, because it ―ignores‖ the superior
court‘s statutory power to reduce a sentence of death and the Governor‘s power of
commutation. (Id. at p. 130.) In a footnote, we added the following statement,
which is the foundation of the majority‘s conclusion: ―Defense counsel‘s remarks
to the jury during closing argument as to what life without possibility of parole
would really mean and what an unending punishment it would be were . . . within
the scope of legitimate argument to the extent the remarks impressed on the jury
the gravity of its task.‖ (Id. at p. 131, fn. 29.)
       The majority‘s reliance on this statement is suspect for several reasons.
First, it was obviously dictum; it was completely unnecessary to our holding, and
thus does not, as the majority‘s asserts, establish a ―rule.‖ (Maj. opn., ante, at p.
61.) Indeed, just three years after deciding Thompson, in People v. Ashmus (1991)
54 Cal.3d 932, 960, footnote 5 (Ashmus), we not only noted that Thompson‘s
discussion was ―dictum,‖ we declared it ―open to question.‖
       Second, nowhere in Thompson did we set forth what defense counsel
actually said in his ―remarks to the jury during closing argument.‖ (Thompson,
supra, 45 Cal.3d at p. 131, fn. 29.) For this separate and additional reason,
Thompson‘s dictum does not ―set forth‖ a ―rule‖ (maj. opn., ante, at p. 61) that

                                            18
defense counsel, over the prosecution‘s objection, is entitled to make the
definitive, unqualified, and incorrect statement that a sentence of life without
possibility of parole ―means‖ the defendant ―will never get out‖ and ―will spend
the rest of his life in a California maximum security prison.‖ Indeed, a careful
reading of Thompson suggests that, in fact, defense counsel‘s remarks in that case
were similar to the trial court’s statement in this case that jurors should assume the
sentence would be carried out, not to the unqualified remarks of defendant‘s
counsel. In announcing our holding, we stated that, because it is generally
―beneficial‖ to ―impress[] the jury with the weight of its responsibility,‖ ―it was
not necessarily error to suggest to them on voir dire that the sentence they decide
on will be carried out.‖ (Thompson, at p. 131.) Notably, as our opinion discloses,
this idea was suggested to the jurors on voir dire by telling them, as the trial court
told the jurors here, ― ‗that they should assume the sentence they voted for,
whether death or life without possibility of parole, would be carried out.‘ ‖ (Id. at
p. 129, italics added.) As the majority explains, the footnote on which it relies
―extended‖ this discussion of the comments during voir dire to defense counsel‘s
remarks during closing argument. (Maj. opn., ante, at p. 60; see Thompson, supra,
at p. 131, fn. 29.) It is therefore logical to infer that the closing remarks were
similar to those made during voir dire, i.e., that jurors should assume the sentence
they voted for would be carried out.
       This inference is supported by the third and final reason that the majority‘s
reliance on Thompson is suspect: in Thompson‘s dictum, we did not even mention
a court‘s ―duty to curtail defense counsel from making incorrect . . . statements of
law‖ (Ott, supra, 84 Cal.App.3d at p. 132) and to ―sustain an objection to an
incorrect statement of law‖ (Suddeth, supra, at p. 65 Cal.2d at p. 548). Surely, we
would have discussed these duties before holding that defense counsel is entitled
to make incorrect and misleading statements to the jury during closing argument
about the meaning of a life sentence. For all of these reasons, our dictum in
Thompson is not support for the majority‘s holding that, over the prosecution‘s

                                          19
objection, defense counsel was entitled to make the erroneous arguments in
question here.
       Another good reason for rejecting the majority‘s holding is the majority‘s
failure to consider the effect of that holding on the prosecution. We have long
held that it is improper for the prosecution, in closing statement, to mention or
suggest the possibility that the sentence the jury selects will not be carried out.
(People v. Davenport (1985) 41 Cal.3d 247, 287–288.) Thus, the prosecution has
no way to respond to a defense counsel‘s erroneous argument to a jury that life
without the possibility of parole means the defendant will never be released and
will die in prison. Neither, the majority holds, is the court entitled to correct
defense counsel‘s misstatement. I see no logic to, justification for, or fairness in a
rule that uniquely entitles defense counsel to misstate the law to jurors without
response or correction.
       Certainly, as the record here demonstrates, the rule the majority announces
is not needed to serve the goal Thompson mentioned: ―impress[ing] on the jury
the gravity of its task.‖ (Thompson, supra, 45 Cal.3d at p. 131, fn. 29.) In this
case, defendant‘s counsel ably accomplished this goal by telling jurors, after the
trial court made its ruling, the following: ―Well, okay. You‘re to assume that
Ramon Sandoval will spend the rest of his life in a California maximum security
prison. Even if he lives to be 100 years old, you‘re to assume that‘s where he‘s
going to die. In 10 years, 20 years from now, whenever your children graduate
from college or graduate from high school, Ramon Sandoval will still be in a
California maximum security prison. It‘s not a gift. It is an extremely bleak
environment. It‘s one of the bleakest and most terrible environments that you can
imagine. And in many ways, it‘s worse that the death penalty. And the point I
think we‘re trying to make is that life without the possibility of parole is all that
society demands in this case. Society will be safe.‖ Surely, these comments
adequately ―impress[ed] on the jury the gravity of its task.‖ (Ibid.)


                                           20
       Although we have cited Thompson‘s dictum since declaring it ―open to
question‖ in Ashmus, supra, 54 Cal.3d at page 960, footnote 5, until today, we
have never held that, over the prosecution’s objection, a defendant is entitled to
make the incorrect statements at issue here. In People v. Nguyen (2015) 61
Cal.4th 1015, after quoting Thompson‘s ―dicta‖ (at p. 1087), we held that, because
the trial court had ―permitted‖ defense counsel to argue that life without possibility
of parole ― ‗means for the rest of [the defendant‘s] natural life he is going to be
locked up in prison,‘ ‖ the court did not err in precluding defense counsel from
describing the measurements and features of the defendant‘s prison cell (id. at p.
1088). In People v. Gutierrez (2002) 28 Cal.4th 1083, 1159, we discussed
Thompson‘s dictum in holding that the trial court had not erred in rejecting the
defendant‘s proposed instruction that life without the possibility of parole ―means
‗defendant will be imprisoned for the rest of his life,‘ ‖ but ―permit[ting] counsel
to argue its substance before the jury.‖ (Italics added.) In these decisions, we
cited the fact that defense counsel had been permitted to make such comments
―without objection‖ (Nguyen, supra, 61 Cal.4th at p. 1087) in rejecting claims that
it was otherwise error to refuse a requested instruction or preclude counsel from
making other arguments. In neither did we hold or suggest that where, as here, the
prosecution objects, a trial court must allow defense counsel to make the incorrect
arguments at issue in this case.5 In short, there is no precedent in our case law
supporting the majority‘s conclusion.
       On the other hand, there is precedent to the contrary; as explained above, in
Smith, supra, 30 Cal.4th at page 636, we unanimously rejected a claim that the
trial court had erred in ―sustain[ing] an objection‖ to defense counsel‘s argument


5      Moreover, in Gutierrez, we did not set forth the remarks the trial court
permitted defense counsel to make (People v. Gutierrez, supra, 28 Cal.4th at p.
1159), so it is impossible to determine from our opinion whether those remarks
were similar to the unqualified remarks at issue here.


                                          21
―that defendant would never have a parole hearing,‖ reasoning that this argument
―would have been inaccurate.‖ The majority‘s reasons for departing from Smith
are erroneous and unpersuasive. We did not, as the majority asserts (ante, at p.
61), simply ―note[]‖ in Smith, at page 636, that it was ―inaccurate‖ for defense
counsel to tell jurors that the defendant ―would never have a parole hearing‖ if
sentenced to life without the possibility of parole. That conclusion was our
primary basis for rejecting defendant‘s complaint that the trial court had
―sustained an objection‖ to defense counsel‘s ―argument.‖ (Ibid.) Contrary to the
majority‘s suggestion (maj. opn., ante, at p. 61), the force and authority of this
conclusion are not lessened by our subsequent comment in Smith that, ―[i]n any
event,‖ because ―both sides argued, without objection, that a life verdict would
mean [the] defendant would die in prison,‖ ―[t]he jury understood the significance
of its choices.‖ (Smith, at p. 636, italics added.)
       Nor is the majority correct in suggesting that we failed in Smith to provide
an ―explanation‖ for our conclusion. (Maj. opn., ante, at p. 61.) Earlier in the
same paragraph, we held that the trial court had not erred in refusing to instruct the
jury that life without the possibility of parole ― ‗means imprisonment for the rest
of [the defendant‘s] natural life,‘ ‖ explaining that such an instruction ―would have
been inaccurate because the Governor has the power to commute a sentence.
[Citations.]‖ (Smith, supra, 30 Cal.4th at p. 635.) We were clearly referring to
this explanation when, in later rejecting the related claim that the trial court had
erroneously ―sustained an objection‖ to defense counsel‘s similar argument, we
stated: ―Again, this argument would have been inaccurate.‖ (Id. at p. 636, italics
added.)
       Consistent with Smith and the well-established legal principles discussed
above, we should hold that where, as here, the prosecution objects to defense
counsel‘s inaccurate and erroneous statements about the meaning of a sentence of
life without the possibility of parole, a trial court does not err in sustaining that
objection. We should not, as does the majority, now transform Thompson‘s

                                           22
dictum — which cites no authority, fails to discuss established principles, and does
not even identify the remarks in question — into a ―rule‖ that a trial court commits
error in precluding defense counsel, upon the prosecution‘s objection, from
making such misstatements. (Maj. opn., ante, at p. 61.)
       Finally, even were I to adopt the majority‘s rule and find error, like the
majority, I would affirm for lack of prejudice. However, unlike the majority, I see
no reason to analyze this issue under — or even to mention — the approach that
some federal authorities have taken when the government fails to make a harmless
error argument. (See maj. opn., ante, at pp. 61-62.) In his briefs, defendant
nowhere mentions that approach, let alone urges us to adopt it. Thus, the majority
has needlessly and improperly injected into this case an issue the parties have
neither raised nor briefed.
       Moreover, the federal approach is clearly at odds with our state
constitutional duty as a reviewing court. Article VI, section 13 of the California
Constitution precludes a reviewing court from setting aside a judgment because of
an instructional or procedural error ―unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.‖ (Italics added.) As the
majority explains, the ―plain meaning of‖ this binding constitutional provision ―is
that a reviewing court may not reverse a judgment without addressing harmless
error,‖ even if the People fail to address that issue in their responding brief. (Maj.
opn., ante, at p. 61.) Thus, even if, as the majority asserts, ―some federal
authorities have held that a reviewing court has discretion [not] to conduct a
harmless error inquiry‖ under these circumstances (id. at p. 62), a California
reviewing court does not. In short, the government‘s failure to offer ― ‗guidance‘ ‖
on the issue of prejudice (id. at p. 61) does not affect a California reviewing
court‘s constitutional duty to ―examin[e] . . . the entire cause, including the
evidence‖ (Cal. Const., art. VI, § 13, italics added) — i.e., to ― ‗search[] the
record‘ ‖ (maj. opn., ante, at p. 61) — in determining whether there has been ―a

                                          23
miscarriage of justice‖ (Cal. Const., art. VI, § 13). Neither is there any logical or
persuasive reason why that failure should affect the standard a reviewing court
applies to determine that same issue. In other words, whether the record
establishes the constitutionally mandated criterion for reversal — ―a miscarriage
of justice‖ (ibid.) — should not depend in any way on whether the People make a
harmless error argument. I disagree with the majority‘s discussion insofar as it
suggests otherwise.
                                                  CHIN, J.

I CONCUR:

CORRIGAN, J.




                                          24
                  DISSENTING OPINION BY CORRIGAN, J.
       I respectfully dissent from the majority‘s reversal of the lying-in-wait
special circumstance. (Pen. Code, § 190.2, subd. (a)(15).) The majority concludes
defendant was prejudiced by the court‘s failure to instruct on circumstantial
evidence as it relates to the lying-in-wait special circumstance. Specifically, such
an instruction would have stated that if circumstantial evidence supports multiple
reasonable conclusions and one of those conclusions supports an inference that the
special circumstance is not true, then the jury must conclude the allegation has not
been proven by the circumstantial evidence. (See CALCRIM No. 704 [Special
Circumstances: Circumstantial Evidence—Sufficiency]; CALJIC Nos. 8.83
[Special Circumstances—Sufficiency of Circumstantial Evidence—Generally],
8.83.1 [Special Circumstances—Sufficiency of Circumstantial Evidence to Prove
Required Mental State].) Defendant did not request such an instruction, but the
majority concludes the trial court should have given it sua sponte. (Maj. opn.,
ante, at pp. 27-28.)
       CALJIC No. 8.81.15 (6th ed. 1996) (Special Circumstances—Murder
While Lying in Wait), as given, informed the jury that it could find the lying-in-
wait special circumstance true if defendant intentionally killed the victim and the
murder was committed while lying in wait. The instruction defined ―lying in
wait‖ as ―a waiting and watching for an opportune time to act, together with a
concealment by ambush or by some other secret design to take the other person by
surprise. The lying in wait need not continue for any particular period of time
provided that its duration is such as to show a state of mind equivalent to
premeditation or deliberation.‖
       The truth of this special circumstance thus turned on whether defendant
was ―waiting and watching for an opportune time to act.‖ The majority fails to
distinguish between direct and circumstantial evidence. Defendant‘s confession
was direct evidence of his own mental state. Sergeant Valdemar‘s testimony was
circumstantial in that it related facts supporting a different conclusion about that
same question. Valdemar testified that gangs ―often use military type tactics,‖
including having a person with a long firearm who ―would take a position of
advantage that would allow him to cover the people with hand guns who would
approach the house, possibly also acting as lookouts on either end of the
street . . . .‖ Gangs also anticipate police intervention and ―it would be the backup
man‘s duty to take them on and pin them down or kill them if possible.‖ The
majority reasons that ―[a]lthough there was evidence that Sandoval was hiding and
waiting and watching as soon as the police appeared on Lime Avenue, Sergeant
Valdemar‘s testimony was the principal evidence in support of the prosecution‘s
theory that Sandoval was watching and waiting for an opportune time to commit
the murder from the moment he spotted the police.‖ (Maj. opn., ante, at p. 27.)
This testimony was in contrast to the defense claim that defendant was not
watching and waiting for an opportune time to act, but merely hiding from police
when he ducked behind a car as he saw police approach. The only evidence cited
by the defense in support of its theory was the timeline of events recounted by
defendant in his confession and his own direct statements about what he saw and
did.
       On these facts, I disagree the trial court erred. The applicable rule on this is
well established. ― ‗[W]hen the only inference to be drawn from circumstantial
evidence points to the existence of a requisite mental state, a circumstantial
                                          2
evidence instruction need not be given sua sponte.‘ ‖ (People v. Rodrigues (1994)
8 Cal.4th 1060, 1142, italics added; see People v. Morrisson (1979) 92 Cal.App.3d
787, 791-794; see also People v. Dunkle (2005) 36 Cal.4th 861, 928 (Dunkle),
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22; People v. Heishman (1988) 45 Cal.3d 147, 167, abrogated on another ground
by People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Wiley (1976) 18 Cal.3d
162, 175 (Wiley).)
       The only relevant circumstantial evidence cited by the majority is Sergeant
Valdemar‘s testimony. Yet, the majority fails to explain how that testimony, if
believed, reasonably supported an inference that defendant did not act with the
required mental state. Sergeant Valdemar‘s testimony that gangs ―usually‖ are
prepared for police intervention and it is the duty of the person with the long
firearm to ―pin them down or kill them if possible‖ supports the inference that
defendant was so prepared and intended to do so as he sought cover from the
approaching officers. If the jury believed this interpretation of Valdemar‘s
testimony, the only reasonable conclusion to be drawn was that defendant was
watching the officers and waiting for an opportune time to shoot and thus acted
with the requisite mental state. The majority suggests the jury could have rejected
the prosecution‘s theory based upon defendant‘s confession. (Maj. opn., ante, at
pp. 29-30.) It could have done so. But in such a case, it would have rejected the
circumstantial evidence and accepted defendant‘s own direct evidence.
       Although the majority disagrees with this analysis, its attempt to refute it
only bears it out. The majority asserts: ―A reasonable juror, while believing the
gang expert, might have inferred that his testimony about how street gangs usually
think and act did not prove that Sandoval thought or acted that way in this
instance. Such a juror could reasonably refuse to credit the prosecution‘s theory
about what Sandoval was thinking when he first saw the police unless Sergeant
                                          3
Valdemar‘s testimony was supported by direct evidence of Sandoval‘s mental
state at the time. This view does not posit that the jury ‗rejected the circumstantial
evidence‘ (dis. opn., post, at p. 3); it posits only that the jury reasonably rejected
the inference that the prosecution wanted it to draw from that evidence.‖ (Maj.
opn., ante, at pp. 29-30.)
       However, in this scenario, the jury ―refuse[s] to credit the prosecution‘s
theory‖ and ―reject[s] the inference that the prosecution wanted it to draw from
that evidence‖ based upon its evaluation of the direct evidence of defendant‘s
confession. Contrary to the majority‘s suggestion, the circumstantial evidence
instruction is not intended to address a potential conflict between direct and
circumstantial evidence. That instruction addresses the danger that a jury would
rely on circumstantial evidence to convict even though the same evidence may
reasonably support a finding of innocence. That simply is not the case here. The
majority points to no interpretation under which Valdemar‘s testimony could be
understood to support an interpretation reasonably supporting a not guilty finding.
       In sum, ―[t]he fact that the elements of a charged offense include mental
elements that must necessarily be proved by inferences drawn from circumstantial
evidence does not alone require an instruction on the effect to be given such
evidence however. The contrary is usually the rule.‖ (Wiley, supra, 18 Cal.3d at
p. 175; see Dunkle, supra, 36 Cal.4th at p. 928.) The circumstantial evidence at
issue must be both substantially relied upon by the prosecution and support at least
one interpretation pointing to innocence. Because the only reasonable inference
from Valdemar’s testimony was that defendant acted with the required mental
state, the trial court did not err in failing to instruct the jury sua sponte regarding
circumstantial evidence. I would affirm the judgment of conviction in its entirety.
I CONCUR:                                           CORRIGAN, J.
CHIN, J.
                                            4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sandoval
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S115872
Date Filed: December 24, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Joan Comparet-Cassani

__________________________________________________________________________________

Counsel:

Victor S. Haltom, under appointment by the Supreme Court, 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 and Timothy M. Weiner, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Victor S. Haltom
428 J Street, Suite 350
Sacramento, CA 95814
(916) 444-8663

Timothy M. Weiner
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4922




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