Los Angeles County Super. Ct. No. PA023649 Meredith C. Taylor
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold Erickson, Deputy State Public Defender, for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
CANTIL-SAKAUYE, C. J.
An information filed in February 1997 charged defendant Juan Manuel Lopez and his brother Ricardo Lopez with the April 1996 murder of Melinda Carmody (Pen. Code, § 187) and four other counts: kidnapping (§ 207, subd. (a)), assault by means of force likely to produce great bodily injury and/or with a deadly weapon (§ 245, subd. (a)(1)), first degree residential burglary (§ 459), and second degree burglary of a vehicle (§ 459). The information also alleged a special circumstance that the murder was committed for the purpose of preventing the victim’s testimony in a criminal proceeding and that a principal was armed with a firearm in the commission of the offense. (§§ 190.2, subd. (a)(10), former 12022, subd. (a)(1), as amended by Stats. 1995, ch. 377, § 8, p. 1948.)
A jury convicted defendant of murder and found true the special circumstance and weapon allegations. The jury also convicted defendant of all charged crimes except the vehicle burglary count, as to which it was unable to reach a decision. The jury then returned a verdict of death, which the trial court declined to modify. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
A. Guilt Phase
1. Prosecution evidence
In 1995, defendant was the leader of the Parthenia Street gang. In March 1995, when she was 14 years old, Melinda “Mindy” Carmody was “jumped into” the Baby Locas — the female adjunct of defendant’s gang. One of the girls who initiated her into the gang was the leader of the Baby Locas, Sandra Ramirez, who became Mindy’s friend. Mindy’s gang moniker was “Crazy” and Ramirez’s was “Shy Girl.” Shortly after she joined the gang, Mindy began a relationship with defendant. She eventually ran away from home and moved in with defendant’s family. In September 1995, Mindy returned home but continued her relationship with defendant.
Mindy broke up with defendant in February 1996. According to Mindy’s preliminary hearing testimony, defendant called her at her mother’s home on the morning of March 13, 1996, and asked if he could come by to pick up some papers. Mindy said no, because she was afraid of defendant. While they were still dating, defendant had told her that if she ever broke up with him, he would kill her.
About an hour after he called, defendant entered Mindy’s house through the garage. He asked her if she wanted to leave with him. When she said no, defendant approached her with a knife. He stabbed her with the knife in the back of the neck and she fell onto the couch. Defendant started choking her. While he was choking her, he told her that if he “can’t have [her], no one can.” She fell off the couch and he released her, then he pulled her to her feet by her hair and forced her upstairs to her bedroom. Defendant put Mindy in her closet and grabbed a bag and told her to get some clothes because they were leaving. After packing the bag he pulled her downstairs. Outside of the house, he placed her into the backseat of a waiting car. Another man Mindy had never seen before was in the driver’s seat. Before they left, defendant told her to change her shirt because there was blood on it.
At the preliminary hearing Mindy testified further that they drove first to defendant’s house where Mindy waited in the car while defendant went inside to retrieve a bag. They then went to the house of defendant’s aunt, Maria Hernandez, and defendant left her there. Hernandez helped clean the back of Mindy’s neck, which was bleeding, and she changed her shirt again. Mindy remained at Hernandez’s house for four hours but was unable to communicate with her because Hernandez spoke Spanish and Mindy did not. Eventually, Hernandez drove Mindy home.
Later that same day, about 5:00 p.m., Los Angeles Police Officer Robert Denton responded to a call to Mindy’s home. According to the officer, Mindy was upset and nervous and started crying while he was talking to her. He took her to the police station. Photographs taken at the station showed fingerprint bruising and scratch marks around Mindy’s throat and a wound to the back of her neck that had been oozing blood since Officer Denton first saw it.
Police arrested defendant on the night of the incident when, responding to a report of a car break-in at a condominium complex near where Mindy lived, they found him in a dirt area beneath a balcony. Defendant told the arresting officers that he “didn’t do anything, ” but “was in the area to see his girlfriend.” He kept repeating that he “loved her too much.”
Detective Morritt interrogated defendant. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), defendant told Morritt that Mindy had given him permission to come to her house to pick up some papers. Defendant said he took a bus to Mindy’s house and, once there, they argued and he hit and choked her. Nonetheless, according to defendant, Mindy voluntarily went with him to his house. From there, a friend drove them to the home of defendant’s aunt.
Sometime after his arrest, defendant telephoned Sandra Ramirez, the leader of the Baby Locas, telling her that he had stabbed Mindy in the neck and kidnapped her. He also told her that he wanted to take Mindy to Mexico to marry her.
Mindy testified against defendant at the preliminary hearing on the kidnapping and assault charges on March 28, 1996. According to Detective Morritt, Mindy appeared frightened and upset, and cried at times during her testimony. At one point during Mindy’s testimony, defendant sat forward in his chair and said, “I don’t have to sit here and listen to this shit.”
Defendant called Ramirez on March 26 and March 27, 1996, from the cell area at the court where his preliminary hearing was held. In the first call, he again admitted to Ramirez that he had stabbed and kidnapped Mindy. He told Ramirez to tell Mindy not to go to court. In the second call, he asked Ramirez to come to court and pick up a letter that he had written to Mindy and deliver it to her.
Defendant was held to answer on the kidnapping and assault charges on March 28, 1996. Defendant’s sister, Patricia (Patty), told police that defendant called her during the first week of April and asked her to set up a three-way call with their brother, Ricardo, also known by his gang name “Diablo, ” and Jorge Uribe, a gang member who was known as “Pelon.” Patty set up the call but did not listen to the conversation.
On April 11, defendant again called Ramirez while she was talking to Alma Cruz, another member of the Baby Locas. Ramirez, Cruz, and defendant all spoke together on a three-way call. Defendant told them they had to go to a gang meeting that was scheduled for the following night to discuss paying dues to the Mexican Mafia. They also talked about the girls’ plan to jump in a new member, a girl called “Happy, ” who was Mindy’s friend. The plan was to jump Happy in at a park outside the gang’s territory. Defendant insisted, however, that the girls jump her in at an alley claimed by the gang. Defendant explained that if Happy was jumped in at the park she would not be from the gang-controlled neighborhood. Ramirez did not believe it mattered where the new gang member was jumped in, but because defendant was the gang leader she agreed. According to Cruz, defendant asked her “if [she] could kill one of [her] homegirls.” Cruz replied that it depended on whether “[the homegirl] would do something to me.” Defendant said, “I already have someone doing it for me.”
Records showed that on April 10, the day before defendant’s conversation with Ramirez and Cruz, there were a number of phone calls from defendant’s cellblock in the jail to the Lopez residence where his brother Ricardo lived with their parents. On April 11, the same day defendant spoke to Ramirez and Cruz, calls were made from the superior court cell area at Van Nuys, where defendant was arraigned, again to the Lopez residence. Three calls were also made the following day, April 12, the day Mindy was killed, from where defendant was being held in custody, to the Lopez residence.
On Friday, April 12, 1996, Baby Locas leader Ramirez drove various members of the gang, including Mindy, to an alley off Schoenborn Street to attend the gang meeting and to initiate Happy into the Baby Locas. When they arrived, the sole male gang members present were Ricardo and Uribe. According to Ramirez, Mindy seemed frightened by Ricardo’s presence, but Ramirez told her not to worry because he “wasn’t going to do nothing.” Ricardo was drinking beer, as were other gang members including Mindy and Ramirez. Ricardo, Uribe, and other male gang members were on one side of the street and the females were on the opposite side.
At some point, Ramirez went to talk to Ricardo, who was standing with Uribe. Ricardo asked, “Why did you bring them?” and told her “[Y]ou know what’s going to happen.” According to Ramirez, she did not know what he meant by that, nor what he meant when he also told her that, “if anything happened, to say it was a drive by.” Ricardo then took a gun out of his waistband, pointed it at Ramirez and said he was going to shoot her. Ricardo put the gun away and Ramirez walked away.
Uribe crossed the street and told Mindy that Ricardo wanted to talk to her. Mindy made a face as if she did not want to speak to him, but she went. Ramirez noticed that Mindy was talking to Ricardo. She saw his gun at the side of his leg and then she heard Mindy scream, “Shy Girl, let’s get out of here.” She looked and saw Mindy coming toward her quickly with Ricardo following her. He was pointing his gun at Mindy and then he started shooting. Ramirez heard approximately five shots. Mindy fell into the street. Ricardo walked up to her and shot her while she was on the ground. One of the girls present heard Ricardo say something about his brother.
After Ricardo shot Mindy, he walked away with the gun to his own head.
Ramirez and the other girls ran to Mindy and tried to move her, but ultimately left her at the scene because they were afraid to say anything to the police. The girls got into Ramirez’s car and drove to a convenience store where one of them called 911.
Meanwhile, Leticia Corona, who lived on Schoenborn Street, was returning home around 9:00 p.m. when she saw Mindy lying in the street. She and her sister got out of the car to help. There was a pool of blood beneath Mindy’s head but she was still alive. Although her eyes remained closed, she tried to lift herself off the road. Eventually, the paramedics arrived. The next morning Corona returned to the scene and found a smashed-up bullet near the gutter. She gave it to police who later matched it to a gun taken from the Lopez residence.
A Los Angeles firefighter-paramedic transported Mindy to a nearby hospital. He and the hospital chaplain testified that Mindy’s pager had a message that read “187” and a phone number later identified as belonging to Mindy’s mother. Mindy died at the hospital several hours after her arrival. The cause of death was multiple gunshot wounds.
On April 13, 1996, the day after the shooting, defendant called Sandra Ramirez and asked, “What happened?” She told him that Ricardo had shot Mindy. Defendant asked Ramirez if she knew where Ricardo was and hung up after she told him she did not. Later that day, Ricardo called Ramirez and told her to say that Mindy’s killing was a drive-by shooting. Defendant then called Ramirez a second time and asked if she had spoken to police. When she said no, he told her, “Don’t say anything.” Ricardo then called Ramirez again, this time telling her to tell the “girls” to attend a meeting that night so they would know what to say about the shooting. According to Ramirez, when she told him she could not go, he told her that “if [she and other Baby Locas] didn’t go [to the meeting], the same thing [as had happened to Mindy] was going to happen to us.”
Phone and inmate locator records for that day show four calls were made to the Lopez residence from where defendant was being held in custody.
Detective Oppelt interviewed defendant 12 days after the shooting. Defendant denied having anything to do with Mindy’s death and said that he had learned of it only one week earlier when the lawyer representing him on the kidnapping and assault case mentioned it to him. He said he was both mad and sad at things Mindy testified to at the preliminary hearing. He also told the detective he was depressed about her death. Defendant volunteered that Mindy told him that she had been receiving the number 187 on her pager and that he had assured her the message was not from anyone in his family.
Defendant asserted that since his arrest on the assault and kidnapping charges he had not spoken to his brother Ricardo and he also denied having spoken to Jorge Uribe. He also initially claimed not to have spoken to Sandra Ramirez but then acknowledged that he had talked to her about jumping a girl into the gang.
In January 1997, before the preliminary hearing in the present case, Sandra Ramirez’s boyfriend received a letter from Ricardo sent from a jail facility. The letter instructed him to tell Ramirez “not to go to court or else” Ricardo would “have the homeboys take care of her.”
2. Defense evidence
Defendant presented the testimony of his mother, aunt, and his aunt’s husband. They each testified that they saw Mindy on the day she was allegedly kidnapped by defendant and that she did not appear to be frightened, nor was she injured. Defendant’s mother testified further that defendant and Mindy wanted to go to Mexico to get married. His aunt testified that she talked them out of this plan. Defendant’s uncle testified that he, not his wife, drove defendant and Mindy from his house to Mindy’s neighborhood. He also testified that Mindy did not appear frightened or injured.
In his defense, Ricardo introduced a portion of Ramon Ramos’s preliminary hearing testimony after Ramos refused to testify. Ramos, whose gang moniker was “Oso, ” testified that Ricardo was drinking beer before he shot Mindy and that after he shot her, he put the gun to his own head and clicked it. He also testified that after he took the gun from Ricardo, Ricardo said, “It’s for my carnal, ” meaning his brother, defendant.
3. Prosecution rebuttal evidence
The prosecution presented Mindy’s diary entry for the day of the assault in which she had written that “Bird [defendant] broke in and stabbed me and choked me and kidnapped me. Went to Police station, went to Grandma’s.” She also told one of her schoolteachers about the incident.
B. Penalty Phase Evidence
1. Prosecution evidence
The prosecution presented evidence of defendant’s violent acts while in custody. Sheriff’s Deputies Romo and Perez testified that defendant had been injured in a fight with another inmate. After defendant had been treated in the jail infirmary, Perez prepared to use some handcuffs to transport him to the disciplinary building. Defendant said, “Fuck you, I ain’t going to the hole, ” and tried to elbow and punch Perez in the face. In the ensuing struggle, the deputy suffered scratches, swelling and bruising. Several deputies eventually subdued defendant.
The prosecution also presented victim impact testimony from Mindy’s stepmother, her grandmother, and her mother. Each testified that she had had a close relationship with Mindy and that Mindy’s death had been devastating to her.
2. Defense evidence
Defendant declined to present a penalty phase case.
A. Jury Selection Issues
1. Limitation on voir dire
The juror questionnaire in this case included four questions that touched on racial or ethnic bias — defendant is Hispanic and Mindy was Caucasian — including a question that asked prospective jurors whether they believed there was racial discrimination against Latinos in Southern California. (Question No. 86.) Prior to voir dire, the court indicated it would not ask followup questions of those jurors who did not respond to this question. Both defendants objected. On appeal, defendant contends the court abused its discretion by failing to ask such followup questions. We conclude otherwise.
At the time of defendant’s trial, the trial court alone conducted voir dire. (See Code Civ. Proc., former § 223, added by Prop. 115, § 7, approved by the electorate effective June 6, 1990 [voir dire from counsel permitted only for “good cause”].) Nonetheless, prior to voir dire, the court and counsel collaborated on the juror questionnaire.
Four questions on the questionnaire addressed the issue of racial or ethnic bias. Question No. 86 stated: “If you believe that there is racial discrimination against Latino/Mexican-Americans in Southern California, please describe the problem as you see it.” Question No. 82 informed prospective jurors that they were to use “the same standards (which will be given to you by the court) to judge all witnesses’ credibility regardless of their occupation, lifestyle, race, ethnic background, language, sex, or sexual orientation. If you do not believe you can do this, or if you believe it would be difficult for you to do so, please set forth your thoughts about this.” Question No. 87 asked prospective jurors: “Have you ever been afraid of another person because of their race, ” and, if so, “what was the circumstance?” Question No. 88 asked: “Are you a member of any private club, civic, professional or fraternal organization which limits its membership on the basis of race, ethnic origin, sex or religious convictions, ” and, if so, “please identify the club(s) or organization(s).”
Before the first group of prospective jurors entered the courtroom, the trial court made the following statement with respect to question No. 86: “I noticed in reading the questionnaires, as I’m confident you did as well, that a number of people did not respond to the question about racial prejudice. I don’t have any intention of following up on that question, ladies and gentlemen.... In some of those responses, some showed a great sensitivity to the question, others showed less than great sensitivity to the question. For other people it was apparently something they had a ready answer to, and that suggests perhaps something about them one way or the other as any person would choose to infer; but inasmuch as the non-Hispanic who is part of the information before the court goes, that is, the alleged victim, she is the only non-Hispanic, I believe, with respect to the charges themselves, and there does not seem to have been any kind of discriminatory prosecution here. I mean it’s a simple and regular charging; and so if those people did not answer that, I do not intend to go over that subject matter.” Ricardo’s counsel objected “on behalf of my client, reserving any possible appeal rights, both on federal and state constitutional grounds.” Defendant’s counsel joined “for the same purpose.”
“At the time of trial in this matter, Code of Civil Procedure section 223, enacted by Proposition 115 (approved by the electorate effective June 6, 1990), provided for court-conducted examination of prospective jurors in a criminal case, including death penalty cases, in the presence of the other jurors.” (People v. Avila (2006) 38 Cal.4th 491, 534.) “An appellate court applies the abuse of discretion standard of review to a trial court’s conduct of the voir dire of prospective jurors.” (People v. Benavides (2005) 35 Cal.4th 69, 88.)
“Where the jury in its discretion is responsible for determining whether a defendant lives or dies, the need for juror impartiality is obviously most acute.” (People v. Williams (1989) 48 Cal.3d 1112, 1131, original italics.) Given the gravity of the stakes in a capital case, the United States Supreme Court has held that “a capital defendant accused of an interracial crime is entitled to have prospective jurors... questioned on the issue of racial bias.” (Turner v. Murray (1986) 476 U.S. 28, 36-37.) Mindful of these admonitions, we nonetheless conclude that the trial court did not abuse its discretion in this case by declining to question prospective jurors who left blank question No. 86 regarding potential racial bias.
Unlike decisions cited by defendant, this is not a case in which prospective jurors were not questioned at all about potential racial bias. (See, e.g., Turner v. Murray, supra, 476 U.S. at pp. 36-37 [refusal of trial court to question prospective jurors about racial bias in capital case involving murder of Caucasian shopkeeper by African-American defendant]; Ham v. South Carolina (1973) 409 U.S. 524, 526-527 [where defendant was a young African-American civil rights worker who asserted that his prosecution for drug possession was in retaliation for his civil rights activities, the trial court’s refusal to ask questions about racial bias violated the 14th Amend.].) Here, the juror questionnaire clearly addressed the issue of potential bias with four questions, including question No. 86.
Defendant also cites People v. Holt (1997) 15 Cal.4th 619, in support of his claim. In Holt, we agreed that “adequate inquiry into possible racial bias is... essential in a case in which an African-American defendant is charged with commission of a capital crime against a White victim.” (Id. at p. 660.) However, we went on to observe: “Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.” (Id. at p. 661.) We cannot so conclude in this case.
Here, four questions on the jury questionnaire addressed the issue of the prospective jurors’ possible ethnic or racial bias. Question No. 86 inquired directly about the attitudes of prospective jurors on the issue of bias against Latinos in Southern California. As the trial court observed, the responses showed various levels of sensitivity on that issue, which presumably were useful to the parties during the selection process. Defendant claims, however, that the trial court should have questioned jurors who did not respond to that particular question because their silence may have masked bias against Hispanics. We disagree. Question No. 86 was constructed as an “if/then” question. Given that construction, a blank response indicated that the prospective juror did not believe that there existed racial discrimination against Latinos in Southern California. The trial court did not abuse its discretion by declining to inquire about every blank response to ensure that this is what the prospective juror meant. Further, to the extent a prospective juror responded to the question, as the trial court observed, the answer would stand for itself and give the parties relevant information. (Indeed, even a blank response was informative of a prospective juror’s attitude on the issue.) Thus, given that “the juror questionnaire gave the prospective jurors a clear opportunity to disclose views about racial bias that would warrant their excusal from the jury” (People v. Taylor (2010) 48 Cal.4th 574, 609), the trial court’s decision not to follow up on a question that did not require an answer and, as to which, any answer would speak for itself, fell within the appropriate exercise of its discretion.
Moreover, the remaining three questions that touched upon the issue of racial bias (questions Nos. 82, 87, and 88) were, unlike question No. 86, constructed in a manner that required a response from the prospective jurors. Thus, prospective jurors were required to answer whether they could apply the same standards of credibility to all witnesses despite, among other characteristics, their ethnic background; whether they had ever been afraid of a person of a different race and, if so, under what circumstances; and, whether they belonged to any organization that excluded people from membership for, among other reasons, their race or ethnic origin. Therefore, whether or not prospective jurors answered question No. 86, their answers to these other questions would have provided the parties with some insight into their attitudes about race and ethnicity.
Indeed, and notwithstanding its earlier pronouncement, the trial court asked three prospective jurors followup questions based on their answers to these questions. At the request of Ricardo’s attorney, the trial court asked Prospective Juror No. 1032 question No. 83 regarding witness credibility. The trial court repeated question No. 87 to Prospective Juror No. 7502 regarding whether the juror had ever been afraid of another person because of race and posed a number of followup questions. Among the questions the court asked was: “Obviously the defendants who are before the court are Hispanic.... Is there anything in the fact that they are Hispanic that would prejudice you against the defense before you know anything about the case at all?” When the prospective juror seemed to hesitate, the court pressed, “You’re confident of that?” and “Will you reflect on that and if it’s problematic please let me know?” In response to the court’s inquiry, Prospective Juror No. 0886 indicated that the prospective juror’s affirmative answer to question No. 88 was wrong.
Defendant suggests the court’s questions were inadequate because “[v]ery few jurors would answer these questions in such a way that they would admit to racial prejudice.” As we have seen, the record does not support this assertion.
In People v. Booker (2011) 51 Cal.4th 141, in which the defendant was African-American and his victims were not, the defendant claimed the trial court erred by failing to question prospective jurors about racial bias. We rejected the claim, observing that “other than the bare fact of the difference between the races of defendant and the victims, nothing about the circumstances of this crime suggests race played any role.” (Id. at p. 169.) The same is true here. (See also People v. Roldan (2005) 35 Cal.4th 646, 695 [“This was not a case in which racial prejudice was an obvious issue”].) In these circumstances, we find no abuse of discretion in the trial court’s decision not to question prospective jurors who left blank question No. 86.
Although we find no abuse of discretion here, we take this opportunity to remind trial courts in capital cases to “closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards [of Judicial Administration] to ensure that all appropriate areas of inquiry are covered in an appropriate manner. Failure to use the recommended language may be a factor to be considered in determining whether a voir dire was adequate, but the entire voir dire must be considered in making that judgment.” (People v. Holt, supra, 15 Cal.4th at p. 661.)
2. Prosecutor’s exercise of peremptory challenges
Defendant contends the trial court erroneously denied his claim under People v. Wheeler (1978) 22 Cal.3d 258 that the prosecutor used peremptory challenges in an ...