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The People v. Gabriel Castaneda

June 30, 2011


San Bernardino County Super. Ct. No. FWV-15543

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

A jury convicted Gabriel Castaneda of the first degree murder of Colleen Mary Kennedy (Pen. Code, §§ 187, subd. (a), 189), one count of second degree commercial burglary (Pen. Code, §§ 459, 460), one count of kidnapping (Pen. Code, § 207, subd. (a)), one count of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)), and one count of second degree robbery (Pen. Code, § 211).*fn1 The jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, kidnapping, sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (B), (D), (G).) The jury also found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of each of the five crimes (§§ 12022, subd. (b)(1)), 12022.3, subd. (a)), and intentionally confined the victim in a manner that exposed her to a substantial likelihood of death during the commission of kidnapping (§ 209, subd. (a)). Finally, the jury further found that during the commission or attempted commission of sodomy, defendant kidnapped the victim (§ 667.61, subd. (e)(1)), engaged in the tying and binding of the victim (§ 667.61, subd. (e)(5)), personally inflicted great bodily injury upon the victim (§ 667.61, subd. (d)(6)), and committed the offense of burglary of a commercial establishment that was then closed to the public (former § 667.61, subd. (e)(2), Stats. 1997, ch. 817, § 6, pp. 5575-5577). The trial court found true the allegations that defendant suffered two prior convictions for serious felonies (§§ 667, subd. (a)(1), 1170.12). The court also found that defendant suffered a felony conviction in 1987, and did not remain free of prison custody and did commit additional offenses resulting in felony convictions during the five-year period subsequent to the conclusion of his prior prison term. (§ 667.5, subd. (b).)

Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant's application to modify the death penalty verdict to life imprisonment without the possibility of parole (§ 190.4, subd. (e)), and sentenced defendant to death. The court also sentenced defendant to a term of life in prison without the possibility of parole and to 123 years to life in prison with respect to the other charges of which he was convicted. This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of conviction for kidnapping, vacate the findings related to kidnapping, and otherwise affirm the judgment.

I. FACTS A. Guilt phase evidence 1. Prosecution case

The victim, Colleen Mary Kennedy, was employed by P. Basil Vassantachart, M.D., at his medical clinic in Montclair, San Bernardino County, where she performed clerical tasks and provided some medical services, such as taking X-rays and assisting with physical therapy. On Mondays, she worked alone at the clinic from approximately 9:00 a.m. until the doctor arrived at approximately 11:00 a.m. Her routine on Mondays was to finish her clerical tasks and then to sit in her office and read a newspaper or book until patients arrived at 10:30 or 11:00 a.m. She kept the clinic door locked while she was alone, but from her office inside the clinic, she could see the front door to the clinic, and she admitted patients when they arrived.

In February 1998, following a minor automobile accident, defendant, his brother George Castaneda and George's wife Gina Ybarba received physical therapy at the clinic. Their first two appointments were on February 26 and March 5, when Dr. Vassantachart, the victim, and a second "nurse" were present at the clinic in the morning. After one of these appointments, defendant told Ybarba that when the second nurse bent over to tie her shoe, she put her "behind" in his face, and Ybarba responded that the nurse "better not do that to George." Their third appointment was on Monday, March 9, at 9:30 a.m., when the victim was alone in the office. At some point in mid- or late March, Dr. Vassantachart or the victim informed Ybarba that there was no insurance coverage for their treatment, but the clinic would continue treatment if they would be financially responsible. Ybarba conveyed this information to defendant. Thereafter, the three received no further treatment at the clinic.

On Monday, March 30, 1998, the day of the crimes, Dr. Vassantachart's office manager, Shirley Vassantachart, spoke to the victim by telephone at 9:28 a.m., and perceived nothing unusual in their interactions. She placed another telephone call to the victim between 10:15 and 10:30 a.m., but the victim did not answer. Patients began arriving at 10:30 a.m., but the victim did not open the clinic door or answer the telephone. Thereafter, Dr. Vassantachart unlocked the clinic. When he entered the victim's office, he noticed an open book on the floor, which he characterized as "very unusual."*fn2 He proceeded 40 to 50 feet further into the clinic, and found the victim's dead body lying facedown across a "procedure table." Photographs of the crime scene, which Dr. Vassantachart confirmed were accurate, show that the victim was naked from the waist down, except where her pants caught on one of her ankles. Her hands were bound behind her back, and her legs were splayed, with one leg hanging down from each side of the table. Her body was askew, so that her head also hung over one side of the table, and her genital area was near a corner of the table. An examination of the exterior of the building after the crimes were committed revealed no evidence of a forced entry.

Dr. Frank Sheridan, the Chief Medical Examiner for the County of San Bernardino, described the victim's condition. Her hands were tied tightly behind her back with shoelaces, which left deep ligature marks on her wrists. A gag, comprised of a sock and a shoelace, was in her mouth and wrapped tightly around her neck. She had abrasions on her forehead, on either side of her chin, and on her neck, which might have resulted from a struggle against someone holding her face and attempting to put the gag on her. There were four areas of hemorrhaging inside the scalp, which were caused by blows with a blunt object.

Sheridan concluded that the cause of death was blood loss from multiple stab wounds to the victim's neck. There were 29 wounds inflicted with a Phillips screwdriver on the back and sides of her neck. The wounds at the back of the neck, over the spine, were more shallow, where the bone would have stopped the weapon; they were deeper on the sides of the neck. Some of the superficial wounds appeared to have been caused by "jabbing" or "prodding" of the victim, and with respect to these "scraping" or "glancing" wounds, Sheridan agreed it was possible the screwdriver was being used "as an implement to intimidate." At least 15 of the wounds were "fairly deep," and Sheridan opined that "it would take a significant amount of pressure to enter the skin . . . with a screwdriver." Collectively, the wounds caused much hemorrhaging into the tissues of the neck, but two wounds on the left side were the most lethal, because they opened the carotid artery and the jugular vein. Sheridan stated it was difficult to determine how long the victim remained alive after these two vessels were severed, because blood continued to flow to and from her brain on the right side of her neck, but he stated that "it would take a matter of several minutes," and that she might have survived as long as 15 minutes. He concluded that all of these wounds were inflicted while the victim was alive, but he could not determine the order in which they were inflicted. The wounds' close proximity suggested they occurred within a short period of time, but they might have occurred over a period of 15 minutes, with some "inflicted at an earlier stage and the rest fairly quickly after." The gag was in place around the victim's neck when most or all of the wounds were inflicted, as evidenced by holes in the sock. The gag, which became soaked with blood, partially obstructed the victim's breathing, and thereby contributed to her death.

Dr. Sheridan also testified that it appeared from his external examination that there might be some bruising in the area of the vaginal entrance, but he was not able to confirm through microscopic examination of a sample of the underlying tissue that there was bruising. He noted a small amount of dried feces around the anal area, but observed no apparent trauma to the anal region. In addition, his internal examination of the rectum and anal area revealed nothing that indicated trauma. He further explained that whether there were visible injuries from a sexual assault would depend upon how much struggling occurred and whether the injuries were inflicted when the victim was dead or near death, at which time muscles would relax and there would be little circulation to enable bruising.

No spermatozoa was found on the vaginal, rectal, and oral smears taken from the victim, but tests revealed seminal fluid on two areas of carpet and on a feces-stained sock that was found on the floor beneath the procedure table. In addition, a palm print was found on the upward-facing sheet of paper that covered the table on which the victim's body was found.*fn3

In the course of their investigation, law enforcement officials obtained palm prints and DNA samples from Dr. Vassantachart's patients, including defendant. A latent print examiner identified 12 points on defendant's print and on the latent print found on the paper that matched. He testified that he was "certain" that the prints originated from the same source. A forensic scientist extracted DNA from spermatozoa found on the feces-stained sock and from defendant's saliva sample, and examined seven genetic markers using a process known as "polymerase chain reaction" (PCR). She determined that the seven genetic markers from the two samples matched, and that the particular DNA profile appears in one in 19 million Caucasians, one in 524 million African-Americans, and one in four million Hispanics. Another scientist analyzed five genetic markers from the DNA extracted from the sock and from defendant's DNA, using a process known as restriction fragment length polymorphism (RFLP). His analysis reflected that the genetic markers from the two DNA samples matched, and that the particular DNA profile occurs in fewer than one in six billion individuals in each of three racial categories -- Caucasians, Hispanics, and African-Americans. The PCR analysis and the RFLP analysis generated different statistical frequencies because each analysis tested different genetic markers with different variability. Considering the two results together, the scientist who performed the RFLP analysis concluded that, unless the source of the DNA extracted from the sock was an identical twin or a brother of defendant, the source of the DNA was defendant.*fn4

At the time of the crimes, defendant was living with his girlfriend, Virginia Castaneda, in Ontario, California.*fn5 On the day of the crimes, he drove Virginia's burgundy Nissan Sentra to his first day of work at a Toyo Tires distribution center. Defendant reported to work at approximately 6:00 a.m. that day, and worked until a scheduled morning break at approximately 9:00 a.m. When Robert Love, a supervisor at Toyo Tires, checked after the break to ensure that everyone was working, he was informed that defendant had left at the break. According to Francisco Tello, who worked with defendant that day, at the morning break at approximately 9:00 a.m., defendant inquired where he could find something to eat, and was informed that he would have to look for food away from the work premises. Tello testified that defendant left no later than five minutes after the break started. Various law enforcement officers drove different routes between the Toyo Tires distribution center and the clinic. The longest period of time the trip required was approximately 21 minutes.

The evidence reflected that during the time period in which the crimes were committed, a vehicle similar to Virginia Castaneda's vehicle was parked at a Long John Silver's restaurant located in the same block as the clinic. Linda Salley testified that when she arrived to work at the restaurant between 9:10 and 9:15 a.m., no other vehicles were in the parking lot. Martha Carter, another employee of the restaurant, testified that when she arrived to work at 9:45 a.m., she noticed a vehicle in the parking lot, which was unusual, because the restaurant did not open until 11:00 a.m. Salley then went to the parking lot to investigate, and observed what she described as a late model burgundy-colored Japanese vehicle. The vehicle was parked on the side of the restaurant farthest from the clinic, where it could not be seen from the clinic. When Carter went to the parking lot between 10:00 and 10:15 a.m., the second vehicle was still there. Carter could not recall whether the vehicle was in the lot when she went out after 11:00 a.m., by which time police officers had arrived in the area. When shown a photograph of Virginia Castaneda's vehicle, Salley testified that the vehicle she saw in the lot was "probably" the same vehicle as in the photograph, and Carter testified that it was "similar" to Virginia Castaneda's vehicle.

George Castaneda, defendant's brother, testified that he had seen defendant use a Phillips screwdriver as a weapon. Defendant's parole officer testified that on April 20, 1998, when he searched Virginia Castaneda's vehicle, he found a Phillips screwdriver in the wheel well in the trunk, underneath a panel. The search was related to a parole violation rather than to the investigation of the charged crimes, and the parole officer did not seize the screwdriver.

On May 8, 1998, at which time defendant was in custody for a parole violation, law enforcement officers advised him of his Miranda*fn6 rights, and defendant stated he was willing to speak to the officers. He confirmed he had received treatment from the victim, and that the victim was alone in the office during one of these visits. With respect to his activities on the day of the crimes, he stated that he drove a red Nissan to Toyo Tires, arriving at approximately 6:30 a.m., he hurt his thumb unloading tires and did not want to work, so he left at the first break, at approximately 8:30 a.m.*fn7 He then drove to the residence of his cousin, Gloria Salazar, in El Monte, arriving at 9:00 or 10:00 a.m. He related that he awakened Salazar, went out to buy some beer and food, and then returned and talked to Salazar until he departed at approximately 3:30 p.m. to pick up Virginia Castaneda from her place of employment. When the interview resumed following a break, an officer told defendant, perhaps falsely, that Salazar said defendant did not arrive at her residence until noon on March 30. Defendant then stated that before he traveled to Salazar's residence, he saw his half brother, Louie Arroyo, standing on a street corner, in need of heroin. Defendant claimed he and Arroyo traveled somewhere to obtain heroin, and then both went to Salazar's residence.

On May 15, 1998, at defendant's request, law enforcement officers spoke with him again. At this interview, defendant stated that he left Toyo Tires at approximately 9:00 a.m., traveled to Pomona to the residence of Elizabeth Ibarra, a former girlfriend, and then traveled to Salazar's residence. Defendant stated that he did not previously mention his visit with Ibarra because he was engaged to be married to someone else. According to defendant, he arrived at Ibarra's residence at approximately 9:30 a.m., the two of them went somewhere "to meet a connection,"*fn8 and he remained with Ibarra until approximately 11:00 a.m., at which time he drove to Salazar's residence. Contrary to his earlier account, he stated that he did not see Louis Arroyo on March 30.

Ibarra testified that after defendant was arrested, he told her he needed her to tell the investigators he was with her at the time of the crimes. After she reconstructed her activities of March 30, she informed defendant he was not with her that day. She recalled that he insisted he was with her, and repeatedly asked her to tell the police officers that he was with her. She described him as "very upset," and she interpreted his manner as threatening. Telephone records reflected that between defendant's interview on May 8 and his interview on May 15, he placed 11 telephone calls to Ibarra.*fn9

Ibarra also testified that defendant visited her in early March and several times in April 1998, to obtain heroin and to talk. She recalled that she purchased heroin for them when defendant visited. When asked if defendant had money, she responded, "Not very often, no." According to Ibarra, when defendant visited her, they would discuss his relationship with Virginia. In particular, he spoke "very much" about anal intercourse with Virginia -- that it hurt Virginia and she complained, but he wanted to continue engaging in anal sex.*fn10

The victim's husband, Steven Kennedy, testified that when his wife worked, she wore a round gold ladies' watch with a dark brown or black band, and sometimes wore a ring. After his wife's death, he was unable to find the watch or a particular gold ring with a green or red stone -- he did not know which color because he is color-blind. The victim also carried to work a purse in which she kept her wallet with credit cards and cash, and a satchel containing work-related items. He searched their residence, but did not find her purse or its contents, or the satchel. He cancelled all of the missing credit cards during the first week of April. Mary Boyle, the victim's mother, also recalled that the victim always wore at least one ring. After her daughter's death, Boyle discovered that a ring she had bought for the victim, which had an emerald flanked by two diamond chips, was missing, and that one of the victim's watches was missing.

According to Shirley Vassantachart, the office manager, the victim always wore one or two rings and a watch with a black leather band. She also recalled that the victim kept her purse in the office area where she read her book. She explained that the satchel to which the victim's husband referred was used by the victim to carry patient records, bills, petty cash for making change, and payments collected from patients between Dr. Vassantachart's Montclair office and his Covina office, where the victim worked on other days of the week. She testified that although the victim would have delivered the collections to the office manager the previous Friday, the victim would have had petty cash of $30 to $40 in the satchel on Monday when the crimes were committed. The investigating officers did not find the satchel, the victim's purse, or their contents at the crime scene.

In late March or early April 1998, while visiting Gloria Salazar, defendant removed a watch and a ring from his pocket, told Salazar that "this bitch got me mad," and stated that he was going to throw the items off the freeway. Salazar suggested he give the items to her, which he did. Salazar was unsure of the date, but stated that it could have been March 30. She testified that the ring was gold and had a colored stone. She could not recall the color of the stone at trial, but according to the detective who interviewed her, Salazar told him the ring had a green stone. Salazar testified that she took the ring to a pawn shop and gave the watch to a friend whom she called her "grandfather." She did not inform law enforcement officers of these facts until August 1999, by which time the ring was gone from the pawn shop; however, the grandfather still had the watch, which he gave to the police. The victim's husband testified that the watch shown to him at trial "looks like the watch she would wear, but it's kind of beat up," and he was not certain it was her watch. He stated that the finish was rubbed off, but the gold areas that remained were the same color as his wife's watch. The victim's mother, Mary Boyle, similarly testified that she did not know whether the watch shown at trial was her daughter's watch, that she thought her daughter's watch was a brighter gold, and that her daughter's watch had a black leather band. Finally, Shirley Vassantachart testified that the watch at trial looked like the victim's watch, but noted that it lacked a band and that the gold around its face was faded or worn off.*fn11

2. Defense case

Defendant presented evidence that he could not have been at the scene of the crimes when they occurred. First, two police officers testified that when Francisco Tello and Robert Love were interviewed in early May 1998, each said that the first work break at Toyo Tires on March 30 was at approximately 9:30 a.m., a half hour later than the time to which they testified at trial. Second, defendant's sister-in-law, Gina Ybarba, and defendant's son, Gabriel, Jr., who was 16 years of age at the time of the crimes, testified that they saw defendant at his residence mid-morning on March 30. Ybarba, who lived next door to defendant, recalled that she heard a vehicle in the driveway at 10:00 a.m. on March 30, looked out the window, and saw defendant and a dark-haired woman whom she identified as Elizabeth Ibarra. After the vehicle left, she went to the back door of defendant's apartment, and asked Gabriel, Jr., if that was his father who had driven into the driveway. He confirmed it was. Gabriel, Jr., testified that he visited defendant on weekends, and sometimes stayed until Monday or Tuesday. He recalled a Monday when Ybarba came to defendant's apartment to talk to him. On that particular Monday, defendant came into the apartment, remained for 10 to 15 minutes, and then departed at 10:50 or 11:00 a.m. Gabriel, Jr., testified that he thought these events happened on a Monday, because he had returned to his mother's residence the following day at 11:00 a.m. When asked why he specifically remembered this particular visit, he testified that on that Monday, his father's girlfriend, Virginia Castaneda, had repeatedly called the apartment when defendant failed to pick her up after work, defendant had returned late that evening, and defendant and Virginia had argued.*fn12

Defendant also presented evidence that law enforcement officers may have obtained from defendant's residence a sock with defendant's semen on it. Virginia Castaneda testified that defendant's parole officer and other officers came to their residence on April 20, 1998, and conducted a parole search, after defendant failed to report to his parole officer. She recalled that when the officers arrived, she and defendant were having sex, and that defendant ejaculated and wiped himself off with boxers or socks. She testified that the officers took dirty boxers, socks, and T-shirts from the bedroom. She further testified that when the residence was searched again by law enforcement officers on May 8, the officers seized almost all of the family's clothing.*fn13

3. Rebuttal

Several law enforcement officers testified concerning their parole search of defendant's residence on April 20, 1998. Defendant's parole officer recalled that when he first saw Virginia Castaneda, she was in bed with an intravenous (IV) drip attached to her arm, and "[s]he looked very ill." He asked her the reason for the IV, and she said that she was having problems with her pregnancy. At the time of the search, the parole officer was unaware of the charged crimes, and he did not learn of the homicide investigation of defendant until three to four weeks after the parole search. The only clothing seized during the search was a beanie and a shirt the parole officer found hidden on top of a cabinet in the kitchen. He confirmed he found a screwdriver in the trunk of Virginia's burgundy Nissan Sentra, but he did not seize the screwdriver. A second parole officer, who was also unaware of the homicide investigation at the time of the parole search, confirmed the testimony of defendant's parole officer, except he did not recall seeing or hearing about a screwdriver. A police officer who accompanied the parole officers recalled that Virginia was attached to an IV drip, and described her as "obviously ill." A detective from the Montclair Police Department, the lead agency in the investigation of the charged crimes, testified that no one from that department was involved in the parole search of defendant on April 20, 1998. He estimated that he learned of the parole search "sometime after May 6."

Elizabeth Ibarra testified that she initially thought it was possible defendant had been with her on March 30, but changed her mind after she reviewed her telephone records and spoke to her relatives. She also testified that, unlike the dark-haired woman whom Ybarba and Gabriel, Jr., claimed to have seen with defendant on March 30, she had had blond hair for 12 years, until approximately two weeks before testifying at trial. She testified she had never been to defendant's residence in Ontario.

B. Penalty phase evidence 1. Defense case

At defendant's request, the defense presented its penalty phase witnesses first. Richard Hall, Ph.D., a clinical psychologist, reviewed defendant's records from the California Department of Corrections (CDC; now the Department of Corrections and Rehabilitation), and performed psychological evaluations on defendant. According to the Wechsler Adult Intelligence Scale Revised, defendant has an IQ of 84, which is in the low average range of intellectual functioning. According to the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), defendant was depressed, and he was "a very male oriented person." Hall found no indication of any mental defect; in particular, he found no evidence of psychosis or schizophrenia. Dr. Hall characterized defendant's difficulty in adjusting to society as a personality disorder caused by his environment. According to Hall, records from the CDC reflected that during defendant's incarceration in a maximum security prison, he was found guilty of rules violations, "for either being out of bounds or fighting," and was disciplined by being isolated from the general prison population in a higher security housing unit.

Hall explained that there are four security levels in California prisons, and that levels 3 and 4 are maximum security levels, where prisoners' movements are highly regulated and controlled. He stated that a defendant sentenced to life imprisonment without the possibility of parole will never be placed outside of a maximum security setting. Television, radio, and an hour in the yard are available to a prisoner in levels 3 and 4, unless the prisoner fails to follow prison rules. Hall testified that, according to studies, prisoners confined in levels 3 and 4 tend to adopt to the rigid structure and become good workers, and may have difficulty surviving outside of a highly structured prison environment. Hall opined that defendant could function in a prison setting "without much difficulty," and testified that nothing in his evaluation of defendant led him to believe that defendant could not survive in prison the rest of his life.

Frank Gawin, M.D., a psychiatrist whose specialty focused on the effects of medication and drugs on the brain, obtained information from defendant about his history of drug use. From 12 to 14 years of age, defendant abused inhalants, and at age 14, he began using marijuana and ethanol. According to Dr. Gawin, drug use at such an early age indicated that defendant was in an environment in which drugs were available and permitted. He also testified that drug use at 12 years of age limits a child's capacity for maturation, by interfering with the ability to perceive social and moral signals correctly and to remember the consequences of one's actions. Defendant's drug use was mild from age 20 to age 24, when he was working at two jobs and maintaining a relationship. Dr. Gawin characterized defendant's life from age 20 to 24 as "relatively stable," but acknowledged that during this period, defendant was sentenced to the California Youth Authority (now Division of Juvenile Justice) twice, for burglary and assault with a deadly weapon, escaped from the Youth Authority, was arrested for drugs and possession of a sawed-off rifle, and fathered children with three different women. At 24 or 25 years of age, defendant began using heroin and cocaine. His cocaine use ended at age 34, as a result of experiencing a panic attack while on the drug, but he became dependent on heroin, and used it in moderate amounts in the morning and periodically during the day, to stave off symptoms of withdrawal and his increasing depression. In sum, Dr. Gawin testified, defendant suffers from the mental illnesses of drug dependence, a major depressive disorder, and an anxiety disorder.

Armando Morales, Ph.D., a professor of psychiatry and biobehavioral sciences, who specialized in the study of Hispanic gang culture, received information about defendant's family and his prison record, and interviewed defendant. Defendant's maternal grandparents were farm workers who emigrated to the United States from Mexico in 1920. Defendant's grandmother suffered from depression and his grandfather was a heavy drinker, but Dr. Morales was not able to establish whether the grandfather was an alcoholic. Defendant's mother also reported that she herself was a moderate to heavy drinker from 17 to 22 years of age. Although Dr. Morales learned there was "heavy use of alcoholic beverages" among the mother's sibling group, he could not confirm whether any of the siblings were alcoholics.

Dr. Morales testified that defendant's mother was raped when she was 12 years of age, and thereafter had three "marital relationships." The first relationship began when she was 14 years of age and the man was 19. She gave birth to a daughter during this relationship. At age 16, she became involved with a boy, 15 years of age, who was a "heavy drinker." During this second relationship which lasted from 1958 to 1966, she gave birth to five sons and a daughter, including defendant, who was born in 1960. Each of the five boys had juvenile and adult criminal histories, were dependent on drugs, and served time in prison. At 26 years of age, she entered a relationship with a man who had a history of drug problems and incarceration, and they had two sons, both of whom developed drug problems and served time in prison.

Dr. Morales reported that defendant's mother left defendant and his siblings with her parents during the day while she worked, but her parents had little control over the children, and defendant and some of his brothers became involved in "turf-oriented" Hispanic gangs. Morales identified numerous factors related to gang membership, including poverty, parenting problems, family members who are in gangs, violence in the family or the neighborhood, poor education and employment history, and a person's age. He described gangs as surrogate families for their members, and stated that defendant was initiated into a gang at 12 to 15 years of age. At 20 or 21 years of age, defendant married Elvira Moreno, whose parents and siblings were better educated than defendant's family. During the period defendant lived with Elvira's family, he obtained employment and dissociated himself from his peers, but eventually he was drawn back to his brothers, became involved in drugs again, and was rejected by his wife.

Dr. Morales found that defendant fit within three psychiatric diagnostic categories: substance abuse dependence, mood disorder (depression), and dependent personality. Symptoms of his depression included anger and irritability, and a lack of energy, drive, or direction when he was on his own rather than in an institution. Morales stated that depression may have biological and environmental components. With respect to defendant's dependent personality, Morales stated that after 10, 11, or 12 years of age, defendant became a follower, dependent on peers.

Various relatives and friends of defendant testified on his behalf. Lucia Gonzalez gave birth to defendant's son, Gabriel Castaneda, Jr., in December 1981, but her relationship with defendant ended soon thereafter. Their son visited defendant on three or four weekends in 1998, until defendant was arrested for a parole violation in April 1998. Approximately one week after that arrest, defendant asked their son to claim that a firearm found in defendant's residence belonged to the son. Gabriel, Jr., confirmed that defendant exerted "a little bit" of pressure on him to claim ownership of a firearm, but defendant respected his decision not to claim ownership. He asked the jury to consider a punishment other than death, because he would like to become better acquainted with defendant.

At about the time defendant's relationship with Gonzalez ended, he began a relationship with Elvira Moreno, who became pregnant. They married in 1982, and lived together with her parents for almost a year, but she ended their relationship when she found a syringe in his pocket. She testified that defendant treated her with respect, but struck her once, causing bruising around her eye. Defendant was incarcerated during most of their son's childhood, but he wrote letters and drew pictures for their son, and advised him to stay in school, take care of his mother, and stay away from gangs. Defendant's father-in-law testified that defendant complied with his rules while residing in the Morenos' home in 1982, but changed and "went the other way" when he associated with his brothers and other relatives.

Henry and Louie Arroyo, the sons of defendant's mother and stepfather, testified that each of their mother's eight sons belonged to a gang, each had served time in prison, and most had used heroin. According to Henry, his father, who "practically raised" defendant, also used heroin. Both Henry and Louie testified that they never saw defendant strike a woman.

Defendant's sister, Dianna Castaneda, testified that defendant was protective towards her, and she never saw him abuse a woman. When defendant was released from prison in 1997, she took him into her residence, and he became very active in her church. After a couple of months, however, defendant stopped following rules Dianna established for living in her home and he began a relationship with Virginia Castaneda, the wife of his brother Juan. Dianna expressed disapproval, and defendant moved out of her residence and stopped attending church services. Dianna's friend Yvonne Tovar testified that she had known defendant for approximately 19 years. She described him as "nice to everyone, very cordial, very respectful," and she could not recall him ever striking a woman.

2. Prosecution case

George Castaneda, defendant's brother, testified that he and his brothers were "born and raised" in their neighborhood gang and had used heroin, but after being released from prison a second time, George stayed away from his family and completed his parole without any violations. He stated that their stepfather encouraged the brothers to obtain drugs and alcohol for the stepfather, and that the brothers drank and smoked marijuana with their stepfather. George had never seen defendant strike a female.

Testimony was presented concerning an armed robbery by defendant in August 1991. Daniel Hills testified that as he was unlocking the door to his truck, an arm grabbed him around the neck and "practically picked me up off the ground." His assailant told him not to turn around or the assailant would shoot him. One or two other people searched his pockets and took all of his belongings. His assailants then threw him on the ground, tied his hands behind his back with his belt, removed his shoe and sock, shoved the sock in his mouth, kicked him in the side, and drove away in his truck. The day after the truck was stolen, California Highway Patrol officers found defendant at the scene of a collision, slumped in the passenger seat of the truck. Defendant was convicted of the offenses.

Deputy Joe Braaten of the San Bernardino County Sheriff's Department, testified that in June 1999, he received an anonymous note that an inmate named "Gato" had a syringe in a lotion bottle in his cell. He identified defendant as "Gato," and searched the cell defendant shared with another inmate. He found nothing in the lotion bottle, but he found a syringe stored inside a deodorant container labeled "Gato," a needle stored inside a soap container, a homemade handcuff key inside a baby powder jar, and a weapon manufactured from a hard plastic spoon in plain view. On cross-examination, Braaten agreed that prisoners sometimes attempt to cause trouble for other prisoners. He confirmed he found it odd that the weapon was left in plain view, and said he did not know which of the cell's occupants owned the items found in the cell. He also testified that when an inmate is away from a cell during a recreation period, the cell door remains open for approximately five minutes, and it would be possible for another inmate to go into the cell for a brief time.

Elizabeth Ibarra testified that she met defendant when he was in jail, and they began living together when he was released. Less than six months later, they stole a stereo in order to obtain drugs, and were arrested following a high-speed chase. After they were released from prison, they lived together again. She testified that when "[defendant] uses drugs, he gets angry. . . . And when he gets mad, he hits." When she refused to have sex with him, "[h]e'd get mad and I would have to do it anyway." She stated that he would tie her to his arm to prevent her from leaving at night. She recalled an instance when defendant beat her, and defendant's sister contacted Ibarra's mother and brother to come to retrieve Ibarra. Ibarra's mother recalled seeing bruises on Ibarra's neck and wrists, and testified that Ibarra told her defendant had tried to choke her.

Psychologist Sandra Baca testified that it is common for victims of abuse to minimize or deny abuse, and to return to the abuser. She reviewed the data Dr. Hall generated in applying the MMPI-2 test to defendant, and determined that Hall had made an error in his calculations, resulting in his conclusion that defendant was depressed. She testified that, correctly calculated, the MMPI-2 results reflected that defendant "meets the criteria for an antisocial personality disorder and with some depressive features and with some alcohol and substance abuse." Dr. Baca stated that people with antisocial personality disorder do not develop feelings for other people, and they use others to further their own goals. Such individuals may be outwardly gracious, in contrast to the persona they exhibit "behind closed doors," and many are "master manipulators." Unlike depression, "personality disorders . . . are not amenable to treatment at all." According to Dr. Baca, these individuals know what they are doing, but they do not think about being apprehended, and only after they are apprehended do they devise an explanation for their actions. Finally, she testified that defendant could have led his life differently, but "he has chosen to exercise the wrong choices."

II. DISCUSSION A. Pretrial Issue Defendant's absence from two hearings

Defendant contends his absence from two conferences violated his right to be present during the trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, article I, sections 7 and 15 of the California Constitution, and sections 977, subdivision (b), and 1043, subdivision (a).

The first conference between the court and counsel occurred during jury selection, as proceedings were about to resume, and the trial judge asked to "see counsel in the hallway for a moment." Out of the presence of defendant and the prospective jurors, the court stated that it "needed to put on the record and inform you both" that a prospective juror had told the court's jury coordinator that the prospective juror "had been informed by someone, they couldn't tell who, that they were all going to be videotaped." According to the court, the jury coordinator had "checked and found no one with a video camera outside the jury assembly room. And [the bailiff] said he didn't see anyone out in the hallway. I don't know where it came from or who it was by or if you know anything about it at all." The prosecutor and the defense counsel responded that they would object if someone brought a camera into court. The court reiterated its purpose of ensuring counsel was aware of the report, and added that the jury coordinator did not have the juror's name. "So we are in a situation where we have very little information other than that general information." Defense counsel stated, "I am just going to ignore it at this point." The prosecutor added that he would do the same. Finally, the court stated that if it learned anything more, it would bring the information to counsel's attention.

The second conference occurred again during jury selection after defense counsel undertook to explain to prospective jurors differences between the guilt and penalty phases of trial. With respect to the penalty phase, defense counsel stated that "[y]ou can consider what type of upbringing he had. You can consider the area he lived in. You can consider his education." The prosecutor asked to approach the bench, and the court directed that counsel meet with the court in the hallway. At the conference, the prosecutor objected that defense counsel's comments were incorrect statements of the law. The court directed defense counsel not to preinstruct the prospective jurors, but the prosecutor clarified that he was not objecting to preinstruction, only to reference to "neighborhood and so forth." Defense counsel then asserted that "if I start talking about aggravating versus mitigating, [the prospective jurors] don't know what the heck I'm talking about." The court responded that it had already introduced the concepts of aggravating and mitigating circumstances to the prospective jurors, and defense counsel agreed to rephrase his comments. When voir dire resumed, defense counsel noted that the court had alluded to "the aggravating factors and the mitigating factors," and asked whether anyone on the panel "would feel that once the guilt phase is over and if you convict [defendant], that no matter what, at that point you won't listen to the mitigating factors that might be presented by me in this case?"

Although a criminal defendant generally has a right to be personally present at trial, there are various limitations upon this right. First, " '[u]nder the Sixth Amendment's confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination." ' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1231 (Cole); see also Kentucky v. Stincer (1987) 482 U.S. 730, 739 ["the Confrontation Clause's functional purpose [is to] ensur[e] a defendant an opportunity for cross-examination"].) Defendant provides no explanation concerning how these conferences during jury voir dire proceedings had any relation to his opportunity for effective cross-examination, nor do we perceive any relation. (See People v. Gray (2005) 37 Cal.4th 168, 198 (Gray) [litigants must support each legal point with argument].)

Second, " 'under the Fourteenth Amendment's due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a "stage . . . that is critical to [the] outcome" and "his presence would contribute to the fairness of the procedure." ' [Citations.]" (Cole, supra, 33 Cal.4th at p. 1231; see also Kentucky v. Stincer, supra, 482 U.S. at p. 745 [same].) Defendant contends his presence at the first conference concerning the videotaping rumor would have contributed to the fairness of the trial. He bases his contention upon a subsequent event during jury selection: later the same morning, the prospective juror who had spoken to the jury coordinator about videotaping stated, in the presence of other prospective jurors, that the courthouse allowed videotaping and that he was concerned about gang retaliation in the event the jury returned a guilty verdict. Defendant asserts that, had he been present at the conference, he would have had the opportunity to object to the decision not to pursue the matter. Then, according to defendant, the prospective juror could have been questioned outside the presence of other prospective jurors, and the jury pool would not subsequently have been exposed to comments concerning gangs. His theory is speculation, and therefore is inadequate to establish that the conference was "critical" or that his presence would have "contributed to the fairness" of the procedure. (People v. Harris (2008) 43 Cal.4th 1269, 1307; People v. Waidla (2000) 22 Cal.4th 690, 742 (Waidla).)

With respect to the second conference, concerning the propriety of defense counsel's description of mitigating factors, defendant asserts he "could have assisted counsel by providing information about himself that could have been used to explain the concepts of aggravation and mitigation in a way that would have avoided the prosecutor's objection." Defendant's claim lacks merit. The conference concerned a legal issue -- whether defense counsel was misstating the factors that may constitute mitigating circumstances. Therefore, defendant did not have a right to be present. (People v. Perry (2006) 38 Cal.4th 302, 312.)

For the same reasons we have rejected defendant's contentions under the Sixth and Fourteenth Amendments to the federal Constitution, we also reject his assertions of error under state law. " 'The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]' [Citation.]" (People v. Butler (2009) 46 Cal.4th 847, 861.) "Under article I, section 15 of the California Constitution, 'a criminal defendant does not have a right to be personally present "either in chambers or at bench discussions that occur outside of the jury's presence on questions of law or other matters as to which [his] presence does not bear a ' " 'reasonably substantial relation to the fullness of his opportunity to defend against the charge.' " ' " [Citations.]' [Citations.]" (Cole, supra, 33 Cal.4th at p. 1231.) Defendant provides no additional argument concerning the asserted violation of his rights under the California Constitution, and we perceive no manner in which his presence at either of the two conferences bore a reasonably substantial relationship to his opportunity to defend against the charges. For the same reason, defendant had no right under sections 977 and 1043 to be personally present at these bench discussions, nor was a written waiver required. (Cole, at p. 1231.)

B. Guilt Phase Issues 1. Instruction concerning asportation

Defendant contends the trial court provided an erroneous instruction concerning the element of asportation for the offense of kidnapping, and thereby violated his rights to due process and a fair trial under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and article I, sections 7 and 17 of the California Constitution.

The trial court instructed the jury, pursuant to CALJIC No. 9.50, concerning the crime of kidnapping. (§ 207, subd. (a).) The instruction observed that kidnapping requires movement of the victim "for a distance that is substantial in character." It further explained, in language taken from our opinion in People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez) that, "[i]n determining whether a distance . . . is substantial in character, you should consider the totality of the circumstances attending the movement, including, but not limited to, the actual distance moved or whether the movement increased the risk of harm above that which existed prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim's foreseeable attempt to escape and the attacker's enhanced opportunity to commit the additional crimes." (Italics added.)

The events at issue here occurred before Martinez, supra, 20 Cal.4th 225, was decided, when "the asportation standard [was] exclusively dependent on the distance involved." (Id. at p. 233; see People v. Caudillo (1978) 21 Cal.3d 562, 574, overruled by Martinez, supra, 20 Cal.4th at p. 229.) In Martinez, we held that the jury should consider instead " 'the totality of the circumstances' " in deciding whether the distance a victim was moved was " 'substantial in character.' " (Id. at p. 237.) We further concluded that the new standard could not be applied retroactively, because it effected an unforeseeable enlargement of the factual basis for determining what constitutes a "substantial distance" under the kidnapping statute, and the defendant did not have fair warning of the enlargement.

For the same reasons, and as the Attorney General concedes, the standards set forth in Martinez cannot be applied to defendant's actions. We also conclude, as the Attorney General concedes, that "it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) The prosecutor presented evidence that it would be more difficult to hear noises made in the procedure room than in the victim's office, stated to the jury that the movement was "[n]ot a great distance in terms of actual feet," and urged the jury to focus upon whether the movement increased the likelihood of the attack and decreased the risk of detection. Thus, the evidence and argument focused upon the totality of the circumstances rather than the distance. Therefore, the conviction for kidnapping must be reversed and the findings based upon kidnapping must be vacated.

2. Instruction concerning implied malice

Defendant contends that the trial court's instruction defining "implied malice" deprived him of his rights to due process, to trial by jury, and to be free from the imposition of cruel and unusual punishment under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, 16 and 17 of the California Constitution.

The trial court instructed the jury that "[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of burglary, kidnapping, rape, sodomy by use of force or robbery, all of which are felonies inherently dangerous to human life, is guilty of the crime of murder . . . ." (CALJIC No. 8.10.) The court further instructed that " '[m]alice' may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] The killing resulted from an intentional act, [¶] The natural consequences of the act are dangerous to human life, and [¶] The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. . . ." (CALJIC No. 8.11.) Next, the court instructed the jury that "[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree," and it explained the terms "willful," "deliberate," and "premeditated." (CALJIC No. 8.20, italics added.) The court then instructed the jury concerning first degree felony murder, explaining that a killing may be intentional, unintentional, or accidental, but it will be murder of the first degree if it is committed in the course of specified felonies. (CALJIC No. 8.21.)

Defendant asserts that the trial court's instructions erroneously authorized the jury to find him guilty of first degree murder based upon a finding of implied malice. " 'In reviewing [a] purportedly erroneous instruction[], "we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." [Citation.] In conducting this inquiry, we are mindful that " 'a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' " [Citations.]' [Citation.] 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) The instructions in the present case correctly, but unnecessarily, explained "implied malice." The instructions did not, however, inform the jury that it could find first degree murder based upon implied malice. Nor is there a reasonable likelihood that the jury would have understood the instructions to authorize such a finding. The two instructions that addressed the bases of first degree murder -- CALJIC Nos. 8.20 and 8.21 -- correctly explained the two scenarios in which first degree murder could be found, and CALJIC No. 8.20 required express malice in the context of willful, deliberate, and premeditated murder. We reject defendant's view that the jury would have understood CALJIC No. 8.20, which referred to murder with express malice aforethought, as encompassing only a subset of intentional murders, and would have assumed that a finding of implied malice also would support a conviction of first degree murder.*fn14 In any event, because the jury found that the killing was committed in the course of burglary, robbery and sodomy, it necessarily found that the killing was first degree felony murder, regardless of its understanding of the malice requirement in connection with willful, deliberate, and premeditated murder. Finally, we find no merit in defendant's assertion that the jury might have "used implied malice as the standard for finding the commission of a felony in connection with the murder." CALJIC No. 8.10 explained that, to find defendant guilty of murder, it must be proved "[t]he killing was done with malice ...

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