Los Angeles County Super. Ct. No. KA034049. Judge: David Sherman Milton.
The opinion of the court was delivered by: Moreno, J.
A jury convicted Alfred Anthony Gutierrez of the second degree murder of Dawn Nakatani (Pen. Code, § 187, subd. (a)),*fn1 the first degree murder of Mario Orellano (§ 187, subd. (a)), and the attempted willful, deliberate, and premeditated murder of Sergio Medina (§§ 187, subd. (a), 664). The jury found true sentencing enhancements as to the murder of Mario Orellano and attempted murder of Sergio Medina that defendant personally used a firearm (§ 12022.5, subd. (a)(1)) and that defendant committed the offenses for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(4)). The jury also found true a multiple-murder special-circumstance allegation. After a penalty trial, the jury returned a verdict of death. The trial court denied defendant's motions for a new trial and for a reduction or modification of the sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
On October 1, 1996, Dawn Nakatani, defendant's ex-girlfriend and the mother of his child, was beaten, strangled, and left for dead in her Baldwin Park home. A little before noon, defendant had driven to Nakatani's home, picked up defendant's and Nakatani's three-year-old son, and left. A few minutes after noon, Nakatani's roommate returned home to find Nakatani unconscious and not breathing. Nakatani was transported to Queen of the Valley Hospital, where she died at 12:48 a.m. on October 2, 1996, after being briefly resuscitated.
On October 11, 1996, defendant drove past a gas station where he saw Ralph Benevente, Mario Orellano, Sergio Medina, and others meeting to make plans for the evening. Defendant returned to the gas station moments later, got out of his car with an AK-47-type firearm, and fired several shots at Benevente's car, killing Orellano and injuring Medina.
1. Murder of Dawn Nakatani
Nakatani and her three-year-old son shared a home with Maria Rios and her daughter. On the morning of October 1, 1996, Rios left the house in the morning while Nakatani and the son slept. Rios came home for lunch around 12:06 p.m. and noticed that Nakatani's room was in disarray. Nakatani's purse and wallet were on Rios's bed, there were candy wrappers at the top of the stairs - a vantage point from which the television could be viewed - and there was a video cassette case for a Casper video on top of the television cabinet. Things were out of place in Rios's bedroom and Rios's bedroom window blinds were open and her bed pillows flattened as though someone had been sitting on her bed looking down at the street through her blinds. Rios became frightened and looked through the rest of the house, finding Nakatani lying face down in the bathroom/laundry room of the home. Nakatani had a bandana tightly knotted twice around her neck; Rios had to use her hands and teeth to untie the bandana. Nakatani was not breathing when Rios found her and her face was bruised and swollen. Rios ran outside screaming and a neighbor called 911. Nakatani was transported to the hospital, where she was briefly resuscitated but died of her injuries early the next morning.
Kim Pinto, Nakatani's sister, testified that defendant had called her the evening before Nakatani was found strangled to tell her that he was upset that Nakatani would not let him see his son, and that she had "better talk to [Nakatani] or else he will take care of her his way." Defendant's grandmother testified that defendant, along with two men, dropped defendant's son off at her house shortly after noon on October 1, 1996 even though she was too infirm to babysit. Earlier that day, defendant's mother, Janet Gutierrez, had spoken with Nakatani to make arrangements to pick up the boy. Janet Gutierrez arrived at Nakatani's home a little after noon, saw Rios screaming, and was told that the child was not there. Janet Gutierrez left Nakatani's home, called defendant's grandmother from a nearby gas station to see if defendant was at his grandmother's house, and learned that defendant had dropped the child off there earlier that day.
Two days later, defendant went to the police in response to a notice in the newspaper that he was being sought in connection with Nakatani's murder. Deputy Sheriff Sean Heieck testified that, as they were walking to a jail cell, defendant told him that Nakatani used methamphetamine and had sex with multiple partners. Shortly thereafter, Deputy Heieck put defendant in an "isolation cell," where he was able to observe defendant sitting alone and heard defendant thrice repeat, unprovoked by any questioning, "I had to do what was best for my son." Sergeant David Watkins testified that defendant was released later that day because the case could not be presented to the district attorney within 48 hours.
Dr. Eugene Carpenter, Jr., the deputy medical examiner, testified that Nakatani died by ligature strangulation, and had also suffered abrasions and blunt-force trauma consistent with being held against carpet while being strangled. The strangulation must have occurred no more than 20 minutes before emergency personnel began administering cardiopulmonary resuscitation, which began at 12:14 p.m.
More than two months later, on December 7, 1996, Pinto was driving defendant's son to his maternal grandmother's house and mentioned that the next day they were going to visit his mother's grave at the cemetery. The boy responded that he would "untie my mommy," that he saw his "daddy and his mean friend tie up my mommy," and that he hit his dad to get him to stop, at which point defendant carried him upstairs and placed a Casper video in the video cassette recorder for him to watch.
Defendant testified that he had been concerned about the environment in which his son was being raised, which sometimes had led to arguments with Nakatani. On October 1, 1996, although defendant had planned for his parents to pick up his son from Nakatani's home, he received a call from Nakatani requesting that he come to pick up the child because his parents were running late. Defendant did not have a driver's license, but he told Nakatani that he would get a ride over and pick up their son at 11:30 a.m.
Defendant and two unnamed cohorts*fn2 drove to Nakatani's home and walked into her garage to pick up defendant's son. Defendant and Nakatani began arguing, which escalated into a physical altercation. Nakatani grabbed defendant's shirt and scratched his chest, and the two exchanged kicks. Defendant testified that he walked out of the garage with his son while the two men walked towards Nakatani. The two men returned to the car one or two minutes later, and defendant, the boy, and the two men drove away.
When the two men returned to the car, defendant asked them what had happened with Nakatani. They replied, "She got crazy with us." When defendant asked them to elaborate, one of them said, "I don't want to talk about it in front of your son." After dropping his son off at defendant's grandmother's house, defendant again asked what had happened. Defendant testified that they replied that she "got crazy with them, and they f.ed her up." When defendant again asked them to elaborate, they replied, "Don't worry about it." Defendant became worried and fled to Mexico, but returned the next day and went to the police after learning that he was being sought in connection with Nakatani's death.
2. Murder of Mario Orellano and Attempted Murder of Sergio Medina
On October 11, 1996, Ralph Benevente, along with his friends Mario Orellano, Sergio Medina, and twin brothers Aaron and Salvador Cervantes, were out for the evening in Benevente's car. Shortly before midnight, the five men were at a gas station on Francisquito Avenue in Baldwin Park. The gas station was well lit, and there were a number of other people there. Benevente and Medina testified that they saw an old, "beat-up," red or maroon car drive past the gas station. The car stopped, and defendant got out of the passenger's seat to stare at, or "mad dog," Orellano. The red car drove away, and Benevente became nervous and asked Orellano to get in his car. Benevente moved his car so that it was between the gas station's office area and the gas pumps. Benevente and Medina then saw the red car return and saw defendant jump out of the passenger side of the vehicle with an AK-47-type assault rifle and fire six shots. Medina was shot three times, once in his back, and once in each leg. Medina spent a week and a half in the hospital, and was confined to bed for three months. Orellano was shot in his abdomen, which caused him to bleed to death internally.
Benevente identified defendant as the person who initially got out of the red car and stared at Orellano, and identified him as the shooter in a photo lineup, a corporeal lineup, and at defendant's preliminary hearing. He noted that defendant's appearance had changed in that his mustache was thicker at the time of trial. Medina, who initially did not wish to cooperate with police out of concern for his safety, ultimately identified defendant as the shooter in the photo and corporeal lineup. Medina also noted that defendant's appearance changed from the photo lineup to the corporeal lineup in that defendant's hair was longer and his mustache might have been larger, although his face appeared the same.
Salvador and Aaron Cervantes, members of the Varrio 213 gang, did not wish to identify defendant, and Salvador feared reprisal. The Cervantes brothers noted that the artist's sketch and the photograph of defendant shown in the photo lineup looked like the shooter. The brothers refused to participate in a corporeal lineup.
On December 15, 1997, as defendant was being moved out of the general prison population, Deputy Sheriff Thomas Garcia searched defendant's property and found a number of "kites," which are notes that inmates illegally pass to other inmates or to individuals outside of prison while incarcerated. Deputy Garcia did not "go into detail" in his search of defendant's property; once he discovered the contraband, he packed all of the notes into the folder in which they were found and called his colleague to pick up the documents.
Among the "kites" were notes identifying Benevente as the "main rata," and identifying Benevente, Medina, and Salvador and Aaron Cervantes by name and by age. One of the notes identified Benevente's vehicle and license plate number; another indicated that Benevente had "identified [defendant] at a lineup." One note contained Salvador Cervantes's address and a map to Benevente's home. Another note referred to Benevente's car, included his address, and directed the recipient of the note to "solve this problem." Defendant refused to give a full handwriting exemplar and refused to write Ralph Benevente's name. A handwriting expert confirmed that the kites were likely written by the same person, but could not identify that person as defendant because the exemplar defendant provided was of limited utility.
A search of defendant's home revealed a box of papers and photographs depicting gang members. Gang expert Deputy Sheriff Scott Lusk testified that he had known defendant for eight years as a member of the Puente 13 gang, and he had had several dozen conversations with defendant over the eight-year period preceding defendant's trial. Defendant, known as "Dinky," was a member of the Perth clique of the Puente 13 gang, and his tattoos affiliated him both with the gang and with the clique. One of the kites found in defendant's possession was signed, "Dinky G., LaPuente 13." Deputy Lusk testified that someone who was trying to distance himself from a gang would not sign kites with his gang moniker and gang name, as defendant had done.
On October 11, 1996, defendant was staying with his sister, Pam Gutierrez, about two or three miles away from the gas station where the shooting occurred. That evening, defendant's family celebrated defendant's son's third birthday, although defendant was prevented from attending the celebration by a court order. Defendant's cousin, Michael Ramirez, attended the party, and then went to visit defendant around 10:00 p.m. Ramirez stayed with defendant until about 12:30 a.m. on October 12, 1996, and did not see defendant leave the house, although Ramirez left once to buy beer shortly after arriving at the house. Ramirez signed a declaration prepared by defendant's father outlining his recollection of seeing defendant on October 11, 1996. In his declaration, Ramirez stated that defendant did not have a mustache in October of 1996, although he testified at trial that he was not really sure.
Benevente, Medina, and Salvador and Aaron Cervantes all testified that the shooter had a mustache. Benevente and other witnesses assisted police with preparing a composite sketch of the shooter; all witnesses involved in preparing the sketch believed that the shooter had hair on his head, while two witnesses who did not participate in preparing the sketch recalled that the shooter was bald. In defendant's booking photograph taken on October 3, 1996 in connection with the murder of Nakatani, defendant did not have a mustache. Defendant testified that it takes him "a month and [a] half, [or] two months" to grow a mustache. The photograph of defendant included in the photo lineup was taken in 1992 and depicted him with a mustache, but his more recent booking photograph depicted him without a mustache.
The People presented evidence that defendant had two prior arrests for assaulting Nakatani. In the first incident, defendant punched Nakatani in the side of her head, threw her to the ground, and threatened to kill a member of her family after she refused to have sex with him. Nakatani subsequently claimed she lied about this incident, and defendant pled guilty to a misdemeanor violation of section 273.5, inflicting corporal injury on a cohabitant. Several months later, defendant was arrested after assaulting Nakatani. The People also presented evidence that defendant, while incarcerated, punched another inmate in the head while the inmate covered up defensively. Defendant refused to stop when ordered to do so, and had to be physically subdued.
The People presented victim-impact evidence. Nakatani's brother testified that he had been with her the night she died in the hospital, that her death was traumatic, and he thought about her every day. Nakatani's sister, Kim Pinto, testified that she and Nakatani had been very close, and Nakatani's son was the same age as Pinto's youngest child. Pinto testified that Nakatani's son had been a normal child before his mother's murder, but following her death the boy became angry and aggressive, had nightmares, was afraid to go to sleep, was quick-tempered, and was very emotional. Pinto testified that Nakatani's mother became very depressed after her daughter's death, and that Nakatani's father could not eat or sleep following Nakatani's death and that he quit working one week after her death and died of a heart attack six months later.
Orellano's father testified that Orellano was a good child and did not get into trouble with the law. Orellano's brother testified that he was in shock and his job performance was impacted by his brother's death.
A number of people testified on defendant's behalf. Defendant's father testified that he had provided defendant with a stable family, ensured that defendant received good educational opportunities, and ensured that he graduated from high school. Defendant's father testified that he believed defendant would take direction from authority figures if imprisoned, and that although defendant had chosen gang life, he would "have to find himself again," which he would be able to do if imprisoned.
Defendant's Little League Baseball coach testified that defendant had been a good worker. Robert Alderete, defendant's godfather, testified that defendant had received a religious upbringing. Alderete testified that he believed defendant would do well in prison, and that he could be a credit to the institution because he would help others while incarcerated. Margaret Alderete, defendant's godmother, testified that defendant had received a wonderful education, had good role models like his godparents, understood his religion, and knew right from wrong.
A. Denial of Marsden Motion
Defendant contends that the trial court failed to conduct a sufficient inquiry under this court's holding in People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and erroneously denied his motion to substitute counsel in violation of his right to counsel under the Sixth Amendment to the United States Constitution. At defendant's pretrial conference on January 15, 1998, defendant requested and received a Marsden hearing. Defendant claimed that appointed counsel, Antonio J. Bestard, had failed to thoroughly interview defendant prior to a January 15, 1998 trial-setting conference, had not communicated adequately with defendant, had not explained to defendant the manner in which he would seek the return of materials confiscated from defendant's jail cell, had responded to defendant's request to file a motion for a change of venue by telling defendant that he was "not O.J. Simpson," and had told the prosecutor that this case was not like his last one, which had involved the strangulation murder of the defendant's mother.
Bestard responded to defendant's allegations, explaining that although he had been appointed only one month prior to the pretrial conference, he had begun to familiarize himself with the voluminous record, had interviewed defendant, accepted defendant's collect telephone calls, and had spoken on numerous occasions with defendant and members of defendant's family. With respect to the documents confiscated from defendant's jail cell, Bestard had explained several times to defendant's sister that he could not seek the return of the documents without the court's permission, and it was unlikely that the court would grant that permission. Counsel also explained that his comment to the prosecutor related to the complexity of the case and certainly was not intended to be a joke, as defendant contended.
"As we have stated, 'a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement.' (People v. Hines (1997) 15 Cal.4th 997, 1025.)" (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) As defendant admits, there is no absolute right to substitute counsel. (Marsden, supra, 2 Cal.3d at p. 123.) A trial court is required to substitute counsel " 'in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused.' " (Ibid.) Alternatively the trial court must substitute counsel where it is demonstrated that counsel and defendant are embroiled in an irreconcilable conflict. (People v. Abilez (2007) 41 Cal.4th 472, 488.) The decision to substitute counsel is within the discretion of the trial court; this court will not find an abuse of discretion unless the trial court's failure to substitute counsel would " ' "substantially impair" the defendant's right to effective assistance of counsel.' " (Ibid.)
Here, we conclude that the trial court made a proper inquiry and did not abuse its discretion by concluding that it was unnecessary to substitute counsel. Defendant primarily asserts that the trial court failed to make an appropriate inquiry under Marsden, which requires that a trial court "listen to [a defendant's] reasons for requesting a change of attorneys." (Marsden, supra, 2 Cal.3d at p. 123.) Here, the trial court did just that - the trial court asked defendant to list the grounds upon which he believed Bestard had provided inadequate representation and the grounds upon which he believed that there was an irreconcilable conflict with counsel. Defendant listed his concerns with counsel, and the trial court then asked Bestard to respond. Counsel provided a thorough response to the concerns raised by defendant. Defendant was given an opportunity to respond, and the trial court then denied defendant's motion finding that representation was adequate. We conclude that the trial court made an adequate inquiry as to the existence of a conflict between defendant and counsel, and as to the adequacy of Bestard's representation.
Defendant contends that trial counsel's representation was inadequate because, defendant alleges, Bestard failed to consult with defendant, failed to make "critical motions," and lacked preparation. Defendant cites Bland v. California Dept. of Corrections (9th Cir. 1994) 20 F.3d 1469, 1477 (overruled in part on other grounds, Schell v. Witek (9th Cir. 2000) 218 F.3d 1017) (Bland) for the proposition that inadequate preparation implies that there exists an irreconcilable conflict between a defendant and his attorney. In Bland, defense counsel spent only 15-20 minutes with defendant prior to trial, failed to prepare defendant to take the witness stand, and failed to investigate exculpatory eyewitnesses. (Bland, supra, 20 F.3d at p. 1477.) There is no evidence here that Bestard was not fully prepared for trial; defendant objects only to the amount of time counsel spent with him prior to the January 15, 1998 pre-trial conference. Most significantly, however, the Bland court held that the trial court violated the defendant's Sixth Amendment right by failing to make a proper inquiry after defendant requested that counsel be substituted. (Bland, supra, 20 F.3d at p. 1477.) Here, as previously discussed, the trial court immediately and properly inquired as to the adequacy of representation and potential existence of a conflict; accordingly, defendant's reliance on Bland is unavailing.
Defendant alleges that counsel's failure to file a motion for a change of venue constituted inadequate representation requiring substitution of counsel. Not so. Certainly defense counsel could have been more artful in explaining to defendant why he believed that filing a motion for change of venue would be unsuccessful. However, defense counsel's decision not to file a motion he believes will be futile does not " ' "substantially impair" . . . defendant's right to effective assistance of counsel.' " (People v. Abilez, supra, 41 Cal.4th at p. 488; see People v. Memro (1995) 11 Cal.4th 786, 834 ["The Sixth Amendment does not require counsel ' "to waste the court's time with futile or frivolous motions." ' [Citations.]"].)
Finally, defendant contends that even if a conflict did not exist prior to the Marsden hearing, a conflict arose at the hearing because trial counsel took an "adversary position." There is no evidence in the record that Bestard took such a position; to the contrary, defense counsel was given an opportunity to describe the scope of his representation at the Marsden hearing, and following defendant's response, the trial court reasonably concluded that no substitution of counsel was necessary. Because we conclude that defendant was not denied his Sixth Amendment right to counsel, reversal is not warranted.
B. Dismissal of Prospective Juror Following Contact with Prosecution Witness
Kim Pinto, Nakatani's sister and a witness for the People, observed jury selection in which her coworker, F.K., was a prospective juror. The next day, Pinto approached F.K. at work and told him that defendant "killed my sister. And if that's not enough, after that, he killed someone else. That's my case. And we have been waiting for a year to get it." Pinto then told F.K. that he would likely be excused because he knew her. Prospective Juror F.K. informed the court later that evening of the conversation he had with Pinto. The court admonished Pinto for her communication with F.K., heard testimony from Prospective Juror F.K. regarding his communication with Pinto, and excused Prospective Juror F.K. Defendant did not object to Prospective Juror F.K.'s ...