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People v. Hartsch

June 28, 2010


Riverside County Super. Ct. No. CR-63743. Judge: W. Charles Morgan.

The opinion of the court was delivered by: Corrigan, J.

Defendant Cisco James Hartsch was convicted of three counts of first degree murder and one count of shooting at an inhabited dwelling.*fn1 As to all counts, the jury found that he personally used a firearm.*fn2 It returned a verdict of death, based on the special circumstance of multiple murder.*fn3 This appeal is automatic.*fn4 The trial court also imposed a determinate sentence, which defendant does not challenge. We affirm.


The facts are summarized here. Further factual and procedural details are provided in the discussion of defendant's claims on appeal.

A. Guilt Phase

1. Prosecution

Early on the morning of June 15, 1995, well before dawn, defendant and his friend Frank Castaneda left a party to go target shooting in an orange grove near the town of Highgrove in Riverside County. Defendant, who was drunk and may have smoked some methamphetamine, took his .22-caliber revolver. He was 18 years old; Castaneda, 20. At trial, Castaneda provided the following account of the ensuing events.

As Castaneda was driving to the orange grove in a stolen Honda, defendant fired four or five shots at a house. He had some problems with the family that lived there.*fn5 When they got to the grove, they saw a truck parked in the dark. Defendant told Castaneda to pull over, saying he was going to "jack it," meaning he intended to take something from the apparently unoccupied vehicle. Castaneda stopped the car, facing the front end of the truck. As defendant approached the driver's side, Castaneda noticed someone in the passenger seat. He switched the car's headlights to the high beams to give defendant a better view. A woman sat up on the passenger seat, and defendant seemed surprised. The woman woke up a man in the driver's seat, who spoke angrily to defendant. Defendant fired his gun several times into the driver's side of the truck. The woman screamed repeatedly, "oh, my God."

Castaneda panicked and backed up, preparing to leave. Defendant fired more shots into the truck, then approached the car and asked Castaneda where he was going. Castaneda said, "let's get out of here." Defendant replied, "they're not dead yet," and reloaded the revolver. Castaneda again said he wanted to leave, but defendant pointed the gun at him. Defendant then walked to the passenger side of the truck and fired more shots through the passenger window. Castaneda saw him reach into the truck before returning to the car.

As they drove away, defendant told Castaneda, "the bitch didn't want to die and . . . she had nice tits." He said he had pulled down her shirt and grabbed her breast. Defendant also said that when the woman said, "oh God," he had told her, "God can't help you now. Mt. Vernon is here to rob, kill and destroy."*fn6 Castaneda drove defendant home. When they arrived, Castaneda said he was not going to take the blame if they got caught. Defendant told him not to worry, adding, "it's not like they were important, like, if they were bankers or lawyers or anything like that. Nobody cared about them."

The bodies were discovered later that morning by a water company employee, who called the police. A .22-caliber bullet and casings were recovered at the scene. Shoe prints with a chevron pattern were found around the truck. The prints were consistent with size nine-and-a-half Nike tennis shoes. The shoulder straps of the female victim's top and bra had been pulled down. She was identified as Ellen Creque. Her companion was Kenneth Gorman. Gorman had been shot seven times; Creque, 13 times. More .22-caliber bullets were recovered during the autopsies.

At 6:30 on the same morning, defendant and his brother "Chucky" Rushing went to work at a beverage packing company. They were wearing tennis shoes, which were not allowed in the plant, and were sent home to change. Two supervisors testified that defendant's shoes were white.

Castaneda, meanwhile, had driven to the home of his girlfriend, Veronica Delgado, and gone to sleep in the car. Veronica's brother Gabriel woke him by tapping on the window. Castaneda told Gabriel that defendant had shot two people in the orange grove with the gun Gabriel had given him.*fn7 Later that day, Castaneda also told his brother-in-law about the shootings. Castaneda wanted to know if the victims had been found, he drove to the scene with his brother-in-law and Gabriel. They left when they saw the police. The next day, Friday June 16, Castaneda read a newspaper story about the murders. He clipped the article and showed it to Veronica, telling her that he had been there, and that defendant was the killer. When Veronica became upset, Castaneda told her he was lying.

Angelica Delgado was Veronica's 14-year-old sister.*fn8 Late in the afternoon of June 16, she left her grandmother's house with friends. She was wearing several rings and necklaces. She and her friends drove around for a while, stopping at defendant's house to see one of his sisters, Suzie. They drove around some more, but eventually returned to defendant's house. Angelica's friends left, and she stayed to visit with Suzie. Angelica's older brother Jesse testified that she called him around 9:00 or 9:30 p.m. and said she had a ride home. Suzie testified that Angelica left the house on foot.

Later that night, Castaneda and his sister Alvina were driving through Highgrove when they saw defendant driving toward them. Castaneda stopped and defendant pulled up beside him. Angelica was with defendant. Castaneda testified that defendant told them he was going to the orange groves to have sex, presumably with Angelica. Angelica was smiling and appeared happy. Castaneda said he would be at his mother's house later, and defendant replied that he would come by. Alvina testified that defendant invited them to join him and Angelica. When Castaneda declined, defendant said that "they were going to the groves to party and have some fun." Alvina also said that Angelica seemed to be happy.

Defendant came to Castaneda's mother's house after midnight and showed Castaneda two necklaces. Castaneda asked where he got them, but defendant only smiled and returned them to his pocket. Castaneda recognized a medallion as Angelica's. He asked to see the jewelry again, but defendant refused. Around the same time, defendant gave his girlfriend, Larissa Gonzalez, a heart-shaped ring that was later identified as Angelica's. Gonzalez testified that defendant had other rings, and necklaces.

The next morning, Saturday, June 17, Veronica asked Castaneda if they could "run away" to Texas. They had discussed such a move over the past few months; both had relatives there. Veronica had a four-month-old baby, by another man. She and Castaneda were using methamphetamine regularly, and she wanted to get away from the drugs. Castaneda agreed. They packed the stolen Honda, visited several family members to borrow money, and drove to Laredo. They left that Saturday afternoon and arrived the following Monday. Veronica did not tell her mother she was going, because she was only 17 years old and would have gotten into trouble. From Laredo, Castaneda telephoned defendant to borrow money. Defendant wired him $60.

Early on Tuesday morning, June 20, Angelica's body was found in an orchard near Highgrove. The body lay on its back about 20 feet from a dirt road, beginning to decompose. Bloodstains on the sweatshirt and jeans indicated that the victim had been upright when killed. There were no drag marks or signs of a struggle. Shoe prints leading to and from the body had a chevron sole pattern. The victim's shoe prints were found along with more chevron prints on and around some large tractor tires near the dirt road.

Later the same day, Angelica's mother, Diana Madrid, heard that citrus workers were talking about another body found in the groves. She feared the victim might be her daughter, who had been missing for several days. Madrid contacted the sheriff's department, and learned that the body was indeed Angelica's. She had been shot four times in the top of her head and once between the eyes. The bullets and fragments recovered from her skull were in the .22-caliber range. The chevron shoe prints found at the scene were similar to those found at the scene of the Gorman and Creque murders, and were again consistent with men's size nine-and-a-half Nike shoes.

Castaneda and Veronica learned of Angelica's death, and promptly left Texas for California. Castaneda, however, was stopped by a Texas state trooper for speeding, and taken into custody when he was unable to produce a vehicle registration. The Honda was impounded. Veronica and her baby flew back to Riverside.

Angelica's brother Jesse told investigators that Angelica had telephoned from defendant's house the night she disappeared. Officers visited the house on Wednesday, June 21. In the yard, they noticed chevron shoe prints similar to those found around Angelica's body. With the consent of defendant's mother they searched the house, but discovered nothing of evidentiary value. At the time, they were unaware that the garage had been converted into a bedroom.

Officers questioned defendant at work on Friday, June 23, saying they were investigating Angelica's death. Defendant told them he had formerly dated Angelica, and last saw her the previous May. She had been with his ex-girlfriend Armanda Ramirez, and he had exchanged some angry words with Angelica. On the day Angelica disappeared, he had come home from work and gone with friends to San Bernardino, returning around four in the morning. He told the officers his shoe size was nine-and-a-half, and said he had two pairs of Nike tennis shoes, one white and one black.

That evening, Angelica's relatives contacted the authorities. Veronica told investigators what Castaneda had said about the Gorman and Creque murders. Gabriel related in detail what Castaneda had told him about the killings, although initially he attempted to protect Castaneda by saying he had heard about them from defendant. Ultimately, however, he admitted that Castaneda was the source of his information. The next morning, officers executed a search warrant at defendant's residence. They found him sleeping in the converted garage, and seized a pair of black Nike tennis shoes, size 9-and-a-half, a .22-caliber magazine with six live rounds, and an expended .22 shell. Defendant was arrested, waived his Miranda rights, and consented to an interview. (Miranda v. Arizona (1966) 384 U.S. 436.)

Defendant told the investigators that on the night of the Gorman and Creque killings, he had been partying with his brother Chucky, two girls, and Castaneda. Initially, he denied leaving with Castaneda. The investigators falsely told defendant that Castaneda had identified him as the shooter, and that they knew he had used the gun he got from Gabriel. Defendant admitted getting a gun from Gabriel, but said he had sold it at a liquor store two weeks earlier. The investigators also told defendant they thought the shoe prints at the crime scenes would match the shoes taken from his bedroom. Defendant was eager to talk about the shoe prints, and claimed they would not match those shoes.*fn9 As the questioning continued, defendant admitted leaving the house with Castaneda and going to the orange groves, but insisted he had been drunk and had trouble remembering what happened. He conceded it was possible he had shot up a car in the groves without realizing anyone was in it. He said that Castaneda did not have a gun, and he did not think Castaneda had left the car.

On the same day that defendant made these statements, investigators flew to Texas and interviewed Castaneda. Castaneda refused to speak without counsel. However, the next day he changed his mind and agreed to a taped interview, giving his account of the Gorman and Creque shootings. He waived extradition and returned to California with the investigators. Castaneda took the officers on the route he and defendant had driven, showing them two locations where he said defendant had tossed spent shell casings. In one of those places, .22-caliber shells were recovered.

Several days later, investigators placed Castaneda in the same jail cell with defendant. Unbeknownst to either of them, their conversation was recorded. There was a telephone in the cell, and defendant was making a call home when Castaneda arrived. He seemed excited to see Castaneda. In conversation with his brother on the phone, defendant told Chucky that "they got the wrong shoes," and directed him to call "Little Mikey" and "tell him to get the fuckin' rid of that shit." Castaneda understood this to mean that "Mikey" should dispose of the .22 revolver. Defendant also told Castaneda that the police had the wrong shoes, because his mother had thrown out the white Nikes. He said there was no evidence. When Castaneda disagreed, defendant spoke about getting rid of the gun, which was "the only thing they can use."

The next day, June 29, defendant wrote a letter in which he talked about having a gun, mentioned a girl who was driving him insane, and wrote: "I didn't give a fuck anymore. I lost it. . . . I just got too stressed out, I guess. I flipped out, lost it, went insane. . . . My brother, oh, boy, I'm glad he wasn't a part of it. . . . I shocked everyone. No one can believe what I did."

Castaneda had not told the police he had seen defendant with Angelica the night she was murdered, and with her necklace later that night. However, around July 3 he contacted an investigator and provided that information. Castaneda explained that he had not wanted to link himself to another killing, and hoped "they'd be able to figure it out and piece it together themselves." Eventually, when defendant had not been charged with Angelica's murder, he decided to assist them because "it was the right thing to do."

One firearms expert concluded that the same weapon was used to shoot Gorman, Creque, and Angelica. Another found the match probable but not conclusive. Semen was recovered from Angelica's vagina. Its concentration indicated it had been deposited within three days of her death. DNA testing showed that the random match probability of the semen coming from anyone other than defendant was less than one in a billion.

2. Defense

The defense theory was that Castaneda and Gabriel Delgado had murdered Gorman and Creque, and Castaneda had killed Angelica. Defense counsel challenged Castaneda's credibility, noting his many felony convictions and his involvement in other shooting incidents.*fn10 Counsel also argued that Castaneda was an accomplice to the Gorman and Creque murders, and thus his testimony was suspect and required corroboration. He suggested that Castaneda's flight to Texas with Veronica reflected his guilt. Counsel contended the shoe print evidence was inconclusive as to size.*fn11

A witness who lived near the orange grove testified for the defense. She awoke at 4:00 a.m. on the day of the Gorman and Creque murders. She thought she had heard gunshots, but may have been dreaming. Based on this testimony, counsel argued that Castaneda had enough time to drive defendant back to the party, then return with Gabriel to the orange grove by 4:00. Counsel argued that Gabriel's statements about the shootings to the police included many more details than he could have learned from Castaneda, more indeed than Castaneda said he gave Gabriel. Counsel emphasized Gabriel's attempt to protect Castaneda by telling the police at first that he had heard about the shootings from defendant.

Counsel conceded that defendant had sex with Angelica, but argued that it was consensual and did not necessarily occur on the night she was killed. He noted that Castaneda had asked Diana Madrid how much Angelica's diamond ring was worth, shortly before she disappeared. Madrid testified that she told Castaneda it was worth about $1,200. Madrid further testified that a couple of weeks before she disappeared, Angelica had become angry about her sister Veronica's relationship with Castaneda. She had left the house, upset. Madrid started to go after her, but Castaneda grabbed her keys and said he would bring Angelica back. When they returned about 45 minutes later, Angelica was still upset.

Counsel also sought to establish that the purse Angelica was carrying on the night she disappeared had been found at the home of Castaneda's mother. Madrid testified that she saw Angelica with a black and white purse on June 16. After Veronica returned from Texas, she had moved into the Castaneda residence. Madrid found Angelica's purse there when she helped Veronica move a few months later.*fn12 Counsel noted that pewter figurines found in the impounded Honda were similar to figurines that Angelica collected.*fn13

B. Penalty Phase

1. Prosecution

The prosecutor presented evidence of defendant's other criminal activity. In May 1991, defendant, Castaneda, and others smashed the window of a truck in a parking lot. In January 1992, defendant went with his father and brother to an apartment complex, looking for someone who had shot at defendant. His father drove a pickup, with defendant in the passenger seat and his brother in the middle. A resident of the complex heard something ram into her door. When she opened the door, she saw a truck close by, with a passenger pointing a gun at her. She closed the door, called the police, and heard gunshots. In a nearby alley, the police found defendant, his father, and his brother in the truck. A .22-caliber pistol with a round in the chamber was under the seat. Defendant had three clips of .22 ammunition in his pocket, one of them with an empty round.

In May 1993, a developmentally disabled man was robbed and shot to death in a school parking lot. Defendant told a cellmate he had committed the killing. He remembered the date well because his uncle had died the same day. In September 1993, defendant was part of a group that accosted a homeless couple. They beat and stabbed the man and stole his jacket, sweatshirt, and shirt. When the group was caught, defendant was wearing the man's shirt. He resisted arrest and was subdued with pepper spray. In October 1994, while in a juvenile rehabilitation program, defendant forced a tentmate to orally copulate him. When confronted, defendant admitted the victim's allegations. In 1995, shortly before the murders in this case, defendant struck his former girlfriend Armanda Ramirez on two occasions.

The jury heard victim impact testimony from Kenneth Gorman's brother and sister, Ellen Creque's brother and daughter, and Angelica's mother and sister.

2. Defense

A supervisor at the beverage plant testified that defendant was a very good employee. His probation officer said that defendant was cooperative and well adjusted in normal social settings, but likely to be violent when intoxicated or with peers. Poorly supervised at home, he was a chronic reoffender who required further intervention to avoid criminal activity. A case manager from the juvenile rehabilitation program testified that defendant was cooperative, quiet, and artistic, but frank about intending to return to the gang lifestyle.

Defendant's mother testified about his family background. She had separated from his father when the father went to prison. She became involved with a man who fathered her younger daughters, and he mistreated defendant. Eventually she reunified with defendant's father, who later returned to prison. Defendant's older brother had been sent to the California Youth Authority. Two of defendant's sisters testified on his behalf, as did his current girlfriend, who intended to marry him.

Castaneda also testified for the defense at the penalty phase. He said that defendant had been depressed on the night of the Gorman and Creque shootings, and upset about Armanda Ramirez. It had been Castaneda's idea to go target shooting in the groves, to relieve defendant's tension.


A. Pretrial Issues

1. Denial of Defendant's Wheeler Motion

Defense counsel made a Wheeler motion after the prosecutor exercised the 17th of his 20 peremptory challenges. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) It was the prosecutor's fourth challenge of an African-American. The court deferred a hearing on the motion, and jury selection continued. The prosecutor passed the challenge at a point when the panel included two African-Americans. After the defense excused a White candidate, the prosecutor excused the African-American who took the same seat, and the defense excused the next White candidate. The court then heard the Wheeler motion.

The argument in support of the motion was perfunctory. To support his claim of racial discrimination, defense counsel noted that when he made the motion, the prosecutor had excused every African-American prospective juror except J.C., who was employed as a school resource officer in a position "akin to law enforcement." Counsel stated that nine of the 91 prospective jurors in the venire pool had identified themselves as African-American in their questionnaires. (In fact, 10 prospective jurors had done so.) Three of them had yet to be called. Counsel observed that the other African-American presently in the jury box, R.P., had been unsuccessfully challenged for cause by the defense due to her opinions on the death penalty. The court summarily denied the Wheeler motion.

Defendant contends the court erred by failing to find a prima facie case of discrimination under Wheeler and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). "Under Wheeler, supra, 22 Cal.3d 258, '[a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias -- that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds" -- violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.]' (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) 'Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.]' (Ibid., citing Batson, supra, 476 U.S. at p. 88.)" (People v. Hawthorne (2009) 46 Cal.4th 67, 77-78 (Hawthorne).)

The applicable procedure is now well established. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168; see also Hawthorne, supra, 46 Cal.4th at p. 78.)

Here, as in Hawthorne, defendant contends reversal is required because the trial court presumably applied the Wheeler standard, requiring the defense to show a "strong likelihood" that a juror was challenged on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280; see Hawthorne, supra, 46 Cal.4th at p. 79.) "The high court later disapproved that standard for purposes of a defendant's establishing a prima facie case. (Johnson v. California, supra, 545 U.S. at pp. 166-168.) Under Batson, the court stated, the prima facie burden is simply to 'produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' (Johnson v. California, at p. 170.)" (Hawthorne, at p. 79.)

When we cannot be sure the trial court applied the correct standard, we review the record independently to resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. (Hawthorne, supra, 46 Cal.4th at p. 79; People v. Bonilla (2007) 41 Cal.4th 313, 342.) It is the defendant's burden to make a prima facie showing on this point, and to that end the defendant should make as complete a record of the facts and circumstances as possible. (Batson, supra, 476 U.S. at p. 96; Hawthorne, at p. 79.) Here, the record made by defense counsel does not support an inference of discrimination.

As noted, in the trial court defendant relied entirely on the fact that the prosecutor had excused four of the first five African-Americans called to the jury box. Under the circumstances before the court, however, this showing did not raise an inference of racial discrimination. There were two African-Americans on the panel by the time the motion was heard, J.C. and R.P. Defense counsel claimed the prosecutor had not challenged J.C. because he was sympathetic to law enforcement, and had passed R.P. because she favored the death penalty. This argument, however, tended to show that the prosecutor was motivated by the candidates' individual views instead of their race. The prosecutor's acceptance of a panel including these African-American prospective jurors, while not conclusive, was "an indication of the prosecutor's good faith in exercising his peremptories, and . . . an appropriate factor for the trial judge to consider in ruling on a Wheeler objection . . . ." (People v. Snow (1987) 44 Cal.3d 216, 225; accord, People v. Huggins (2006) 38 Cal.4th 175, 236; People v. Reynoso (2003) 31 Cal.4th 903, 926.)*fn14

Defendant notes that when the Wheeler motion was argued, the prosecutor had exercised peremptory challenges against 71 percent of the African-American candidates who had been seated in the jury box (five of seven). He compares this figure with the 27 percent of White candidates excused by the prosecutor (nine of 33). However, because defense counsel had peremptorily challenged 17 White prospective jurors, the number remaining for challenge by the prosecutor was only 16. Thus, the prosecutor challenged 56 percent of the Whites who were not removed by the defense, and together the attorneys had excused 79 percent of the White candidates (26 of 33).

Defendant's statistical analysis does not raise an inference of racial discrimination. The numbers are subject to a variety of interpretations, by one of which Whites were actually underrepresented on the panel as compared to African-Americans. Defendant calculates that when the court heard the Wheeler motion, there had been 48 available candidates after challenges for cause and excusals for hardship.*fn15 Accepting this figure, African-Americans were represented on the panel in a proportion roughly equal to their representation in the candidate pool: two of 12, or 17 percent of the panel, as compared to seven of 48, or 15 percent in the pool. Whites, on the other hand, were only 58 percent of the panel (seven of 12), though they made up 69 percent of the available candidates (33 of 48).

Defendant devotes considerable space in his brief to exploring the questionnaires of the five African-American candidates peremptorily challenged by the prosecutor. Defendant could have, but did not, present any argument based on these questionnaires in the trial court. He based his Wheeler motion entirely on the number of peremptory challenges against African-Americans, referring to responses on the jury questionnaires only to argue that the two African-American jurors currently in the box were likely to be favorably disposed toward the prosecution. In any event, we have examined the questionnaires of the candidates in question. They do not justify an inference of discrimination.

One of these prospective jurors, T. A., was strongly opposed to the death penalty. Another, O.B., had been treated badly by Los Angeles police officers while waiting at a bus stop, and wrote that he would not apply the same standards in evaluating testimony by peace officers as he would for other witnesses. G.C., while a supporter of the death penalty, expressed reluctance to resolve conflicts in the evidence and discomfort with scientific evidence. G.C. failed to answer hypothetical questions regarding penalty deliberations. Upon questioning by the court, G.C. said he could listen to scientific evidence and discuss it with fellow jurors. He provided oral answers to the hypotheticals. He was hesitant, however, about his ability to refrain from discussing the case with persons outside the jury.

K.W. was also unwilling to resolve conflicts in the evidence, believing that was "the lawyers' job." When the court explained the jury's role to her, however, she affirmed that she could perform it. K.W. had a third cousin who had been convicted of murder, but felt she was treated fairly by the justice system. J.B., a supporter of the death penalty who believed it was imposed "too seldom," gave no responses in her questionnaire that would plainly appear to have given a prosecutor pause, though she said that if a back problem were to recur she might have difficulty serving. J.B., who worked at a Veteran's Administration hospital, also noted that she might be distracted as a juror if she "hear[d] grief from work" about being away for a long period.

O.B.'s bias against police officers, G.C.'s failure to complete the questionnaire and his hesitance over evidentiary questions and the confidentiality of deliberations, and K.W.'s initial unwillingness to resolve evidentiary conflicts were all matters that could legitimately give an advocate pause. J.B.'s medical condition and work concerns did not appear to be serious impediments to her service, but the prosecutor had earlier accepted a panel that included her. Her eventual dismissal did not fit into a pattern of discrimination against African-American candidates for the jury, two of whom had been accepted by the prosecutor shortly before the Wheeler motion was heard. A single questionable challenge in such circumstances does not raise an inference of discrimination by the prosecutor. (Cf. People v. Williams (2006) 40 Cal.4th 287, 313.)*fn16

Defendant also asserts that the prosecutor's failure to engage the African-American prospective jurors in extensive questioning during voir dire reflects discrimination. Again, defense counsel did not make this claim below. We note that the prosecutor tended to speak to the venire members as a group, and often did not question individual candidates of any race in more than a cursory manner.

Had defense counsel supported his Wheeler motion with references to the questionnaire and voir dire responses of the prospective jurors excused by the prosecutor, the court could have evaluated them with the benefit of its own observations, and the prosecutor could have explained his reasoning.*fn17 Counsel may have decided it was not worthwhile to delve into these matters, aware that the prosecutor had just accepted a panel, at a late stage of the selection process, on which African-Americans were proportionally represented.*fn18 Whatever the case may be, on the record before us we conclude that defendant failed to meet his burden of establishing a prima facie case of discrimination in the prosecutor's use of peremptory challenges.

2. Admission of the Taped Conversation with Castaneda

Castaneda was brought back to California, in custody, on Sunday night, June 25, 1995. He and investigators retraced the route he had driven with defendant on the night Creque and Gorman were killed. During an interview with Detective Michael Eveland, Castaneda implicated defendant in the shootings. Eveland did not expressly ask for Castaneda's assistance in gathering evidence. Castaneda was nevertheless cooperative, though apprehensive about retaliation. Eveland initially asked the jail authorities not to house defendant and Castaneda together. However, on Tuesday, June 27, he arranged for them to be placed in the same cell, where their conversation was recorded. His plan was to see if defendant would make any incriminating statements, and also to see whether Castaneda would say anything inconsistent with what he had told Eveland. Castaneda was not informed of the arrangement, or asked to question defendant about anything. Defendant did, in fact, make several incriminating statements after Castaneda was placed in a cell with him.

As one element of a lengthy pretrial motion to suppress statements made after his arrest, defendant argued briefly that admission of the statements he made in the jail cell with Castaneda would violate his Sixth Amendment right to counsel under Massiah v. United States (1964) 377 U.S. 201. That argument was properly rejected. "To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] 'Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a pre-existing arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.' [Citation.] The requirement of agency is not satisfied when law enforcement officials 'merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.' [Citation.] A pre-existing arrangement, however, need not be explicit or formal, but may be inferred from evidence of the parties' behavior indicative of such an agreement. [Citation.] A trial court's ruling on a motion to suppress informant testimony is essentially a factual determination, entitled to deferential review on appeal. [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67.)

The court here found that Castaneda was not a police agent. Defendant renewed his Massiah claim in a general way at trial, objecting to the admission of his taped statements on the grounds previously raised. The court overruled the objection. On appeal, defendant contends the court erred because the record supports an inference that Castaneda was acting as a police agent. His arguments, however, are based on testimony given after the court's rulings. Our review, of course, is limited to the evidence before the court when it heard the motion. (People v. Garry (2007) 156 Cal.App.4th 1100, 1105, fn. 2; People v. Gibbs (1971) 16 Cal.App.3d 758, 761.) In any event, the evidence defendant relies on fails to show any pre-existing arrangement between Castaneda and the police.

Defendant claims the police told Castaneda that the "door was open" for him to help himself, implicitly inviting him to help them convict defendant. This assertion exaggerates the testimony of Detective Allen Paine. Paine said that when he first contacted Castaneda in Texas, Castaneda had declined to speak with him. The following day, Paine visited Castaneda to give him property receipts after the search of the Honda Castaneda had been driving. He told Castaneda that he would be returning to California, but offered him the opportunity to speak by saying, "my door is always open." The following day, Castaneda decided to talk. Nothing in Paine's testimony suggests he encouraged Castaneda to "help himself" or implicate defendant.

Defendant contends Castaneda was motivated to incriminate him because Castaneda was himself a suspect in the killings, either as the shooter or as an accomplice. The record provides only slight support for this claim, which itself falls short of establishing an agreement with the authorities. Paine testified that he did not tell Castaneda he was a suspect when they spoke in Texas. Castaneda testified that in Texas the police told him they were only interested in him as a witness. They "probably" told him it would be best for him to talk, and said they did not want to see him prosecuted for something he did not do. However, they did not say he could be charged as an accessory. Castaneda said he changed his mind and decided to talk because he wanted to assist in the investigation, and also desired to return to California.

Castaneda denied cooperating with the police in order to avoid being charged in the shootings. In response to a question by defense counsel, indefinite as to time, Castaneda admitted he was told it would be in his interest to cooperate with the police. He also said that at some point in June of 1995 he was told he might be charged as an accessory. Castaneda ...

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