Los Angeles County Super. Ct. No. BA108995, Judge: Charles E. Horan.
Melissa Hill, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Luis Maciel was convicted of the first degree murders of Anthony Moreno, Maria Moreno, Gustavo Aguirre, Laura Moreno, and Ambrose Padilla. (Pen. Code, §§ 187, subd. (a), 189; all further undesignated statutory references are to this code.) The jury also found true multiple-murder special-circumstance and weapon use sentence enhancement allegations. (§§ 190.2, subd. (a)(3), former 12022, subd. (a)(1).) The jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
A. Guilt Phase
1. Prosecution Case
a. Circumstances surrounding the murders
On Saturday, April 22, 1995, between 10:00 and 10:30 p.m., three adults — Anthony “Dido” Moreno, his sister, Maria Moreno, and Gustavo “Tito” Aguirre — and two of Maria’s children — five-year-old Laura Moreno and six-month-old Ambrose Padilla — were shot to death in a house located at 3843 Maxson Road in El Monte, California. Richard “Primo” Valdez, a Sangra street gang member, shot and killed Anthony Moreno and Gustavo Aguirre, while his fellow Sangra gang member Jimmy “Character” Palma shot and killed Maria Moreno and the children. Sangra gang members Danny “Tricky” Logan and Anthony “Scar” Torres also participated in the shootings. The prosecution’s theory was that the killings were ordered by Mexican Mafia member Raymond Shyrock, who had recently sponsored defendant (who was also known as “Pelon”) to become a member of the Mexican Mafia. The prosecutor theorized that defendant had conspired to commit or aided and abetted the commission of the murders, but was not present when the shootings occurred. The prosecutor also theorized that Anthony “Dido” Moreno was killed because he had dropped out of the Mexican Mafia; that Gustavo “Tito” Aguirre was killed either because he had robbed drug dealers protected by the Mexican Mafia or because he happened to be in the house at the time of the killings and the gang members had been instructed to leave no witnesses; and that Maria and the children were killed because they were witnesses even though there is a general “rule” in the Mexican Mafia not to kill women or children. Defendant asserted an alibi defense, maintaining that he had been at his son’s baptism and baptismal party during the murders and the events preceding them.
2) Events before April 22, 1995
Witness No. 15, who like many other witnesses was not identified in the public written record for his protection, testified he was victim Anthony “Dido” Moreno’s brother. (See post, pt. II.A.2.) Anthony and Raymond Shyrock had served time in San Quentin State Prison, and in 1972 both men became members of the Mexican Mafia. Anthony dropped out of the Mexican Mafia in 1983. In January 1995, Anthony lived two apartments down from Raymond Shyrock, and in February or March he moved down the street to the house where the murders occurred.
Witness No. 15 had expressed concern to his brother Anthony that “something might happen to him or the family” because Anthony had dropped out of the Mexican Mafia. Anthony ignored these warnings because he was “so involved” with drugs, and told Witness No. 15 that Shyrock “was not a threat to him because he knew him for so many years.” An autopsy photograph showed a tattoo on Anthony’s right ring finger that read “EME, ” which refers to the Mexican Mafia.
In an 18-month investigation culminating in April 1995, Los Angeles County Sheriff’s Sergeant Richard Briones Valdemar and other law enforcement officers secretly videotaped 18 Mexican Mafia meetings. On January 4, 1995, Raymond Shyrock, who Sergeant Valdemar believed was a member of the Mexican Mafia and had primary control over the San Gabriel Valley area in which El Monte is located, stated at a Mexican Mafia meeting, “I don’t know if [you] ever heard of this brother named like... Dido.” Shyrock explained, “He dropped out a long time ago, ” and when Shyrock was living in a monthly apartment, the “motherfucker was living right downstairs” in an apartment and “never came up.” After Shyrock moved, Dido “started showing his face, so somebody seen him and told me about it... but, there’s all kinds of people in the pad. There’s a whole bunch of youngsters... and kids. And all kinds of shit. So, I’m trying... to figure out how to... — well, I need a silencer is what I need.” Shyrock also said, “I just want to kill him, not the little kids.” Defendant was not present at this meeting.
On April 2, 1995, defendant walked into a Mexican Mafia meeting that Sergeant Valdemar was monitoring electronically. At the meeting, Raymond Shyrock put defendant up for membership and raised his hand as a sponsor, saying: “[T]his dude has gone way above and beyond the call of duty. Man, this motherfucker is sharp, he’s taken care of a lot of business.” He also said, “I know the Vatos [guys] don’t know him, but take my word for it, the motherfucker’s down. I’m not talking about just violence either. Okay, you know, he takes care of business real good and he’s downed a whole lot of motherfuckers in the last year. And he went against his whole neighborhood for us. He’s been fighting with them and downed them. And when... one of his homies killed that one-year-old baby a few months ago, he’s the one that took care of them.” Defendant was voted into the Mexican Mafia.
Witness No. 15 knew defendant, who had been a family friend. At times in early 1995, the year Shyrock sponsored defendant as a member of the Mexican Mafia, Witness No. 15 would see defendant and Shyrock together. Defendant seemed proud of becoming a member and said he was going to “put in a lot of work.”
Witness No. 15 testified that victim Gustavo “Tito” Aguirre was a family friend. About a month to six weeks before the murders, Witness No. 15 saw Aguirre rob a local drug “connection, ” or dealer, of drugs worth about $50 and about $35 in cash. He had also heard that Aguirre committed other robberies in the area involving small amounts of drugs worth $50 or $100. Witness No. 15 said that the drug dealers Aguirre robbed were paying “taxes” to the Mexican Mafia. A “couple of weeks” before the murders, Raymond Shyrock told Witness No. 15 that he was tired of Tito “disrespecting him and robbing dope connections and that sooner or later [he was] going to have to pay for that.”
Witness No. 14, an El Monte Flores gang member, testified that a couple of days before the murders, defendant spoke to him about victim Aguirre. Defendant said to “stay away from Tito because he was no good.” Defendant also told him at some point that Tito was “burning connections” and Shyrock wanted him “taken out.”
3) Events on the afternoon of April 22, 1995
Witness No. 14 testified that about 12:30 p.m. on the day before he learned of the murders, he was in El Monte and saw defendant. They spoke for a few minutes, and defendant invited Witness No. 14 to a baptismal party in Montebello.
Victor “Mugsy” Jimenez, a Sangra street gang member, testified that in April 1995, he owned a blue Jeep. On April 22, 1995, at about 3:00 p.m., Jimenez drove to Anthony “Scar” Torres’s house. Torres borrowed Jimenez’s Jeep to go purchase beer and was gone for about 10 to 15 minutes; Jimenez had previously told Los Angeles County Sheriff’s Detective Stephen Davis, shortly after the murders, that Torres was gone with the Jeep for about 30 to 45 minutes. Jimenez estimated that driving from Torres’s house to El Monte would take about 25 minutes each way.
Witness No. 15 testified that after he was paroled on January 12, 1995, he and his brother, victim Anthony “Dido” Moreno, spent every day together procuring and injecting heroin. On April 22, 1995, Witness No. 15 and Anthony obtained money for heroin on three occasions by visiting a “fence” named Hector in a barber shop located at Live Oak and Peck in Arcadia. After the first trip, Gustavo “Tito” Aguirre joined Witness No. 15 and Anthony in injecting heroin at Anthony’s home. Witness No. 15 explained that Aguirre “stayed with my sister most of the time, ” helping her with child care and household chores.
Witness No. 15 and Anthony returned to Anthony’s home from their third and final outing sometime between 2:15 and 3:00 p.m. Between 2:30 and 3:00 p.m., defendant and two clean cut men between the ages of 19 to 21, all dressed in blue jeans, T-shirts, and tennis shoes, came to Anthony’s house. One of the men had an “EMF” (El Monte Flores) gang tattoo. Witness No. 15 and Anthony spoke with defendant and his companions outside for 20 to 30 minutes. Defendant asked how they were doing and how the family was doing. He gave Witness No. 15 and Anthony each a quarter-gram of heroin; a quarter-gram was worth about $25 to $35. He also gave them his pager number and said if they needed anything to page him. Witness No. 15 found these gestures unusual because “[o]ther people are not... that generous on... general principle.” During the conversation, Witness No. 15 could see two children playing in the yard about 10 feet away. The two men who had accompanied defendant did not speak but appeared to be “casing out the location.” During the visit, victim Gustavo “Tito” Aguirre hid from defendant in the bathroom.
Witness No. 9 testified that on April 22, 1995 she lived at 3847 Maxson Road. That day at about noon or 1:00 p.m. she was outside her home having a garage sale. A blue Jeep and a second car parked at 3843 Maxson Road. No one got out of the Jeep, but four tall men with short hair and white shirts got out of the second car. The men entered the driveway of 3843 Maxson Road, and Witness No. 9 lost sight of them. The men later returned to their car, and both the car and the Jeep left.
Witness No. 8, who lived at 3849 Maxson Road, testified that on the afternoon of Saturday, April 22, 1995, sometime between noon and 2:00 p.m., she saw several people — many of whom had tattoos, and some of whom had shaved heads — in the backyard of 3843 Maxson Road. She had never seen any of these individuals before.
Witness No. 11 testified that in April 1995 she also lived at 3849 Maxson Road. Around 12:30 p.m. on the day of the murders, for about 10 to 15 minutes she observed “three guys” with victim Anthony “Dido” Moreno and “another friend of his” in the backyard of 3843 Maxson Road. Anthony was laughing and appeared to be joking around. The “three guys” were “kind of White.” She did not observe anything that appeared to be an exchange of drugs or money.
Sangra gang member Anthony “Scar” Torres told Los Angeles County Sheriff’s Sergeant John Laurie that he went to the home of Anthony “Dido” Moreno and Gustavo “Tito” Aguirre “earlier in the day” and gave the people at the house some heroin. He saw that there were children at the house and told the people at the house they would be back later that night to sell them some “dope.” From Sergeant Laurie’s investigation of this case, he believed that the heroin was given to Anthony Moreno, Aguirre, or Witness No. 15.
Telephone records indicated that the telephone at the home of Jose “Pepe” Ortiz was used to call defendant’s pager number on April 22, 1995 at 10:51 a.m. and 12:20 p.m.
4) Events on the evening of April 22, 1995
Witness No. 14 testified that he arrived at the baptismal party between 8:00 and 9:00 p.m. with a girl named Denise. Defendant was paged and left the room. When he returned, he asked Witness No. 14 for a ride. Witness No. 14 drove defendant and an individual named “Diablo” to defendant’s apartment in El Monte. They arrived at 9:00 or 9:30 p.m. and went inside for about 15 minutes. Defendant gave Witness No. 14 two half-gram pieces of heroin, telling him to keep one for himself and to give the other to “someone when they got there.” They then went outside and stood by the street for nearly 10 minutes. A four-door black or dark-colored Nissan Maxima parked, and a man got out of the backseat. Defendant introduced the man as “Character” from the Sangra gang, and in court Witness No. 14 identified this individual as Jimmy “Character” Palma. Character told defendant “he was going to take care of business. Not to worry about it.” He also said “he was strapping. They were strapped. They were going to take care of business.” Being “strapped” meant “packing a gun.” Defendant told Witness No. 14 to give Character the heroin, and Witness No. 14 did so. Character then left in the Nissan. Defendant, Diablo, and Witness No. 14 then returned to the baptismal party.
Witness No. 14 later directed Detective Davis to where the baptismal party had been held on Montebello Avenue in Montebello and also directed him to defendant’s apartment on Rose Street. Detective Davis later determined that it took about 18 minutes to drive from the site of the party to defendant’s apartment. Witness No. 14 also viewed Danny “Tricky” Logan’s blue Nissan Maxima at the Temple City sheriff’s station and thought it looked similar to the car he had seen on April 22 in front of defendant’s apartment.
Witness No. 16, a Sangra gang member with Valdez, Torres, Logan, and Palma, testified he had been granted immunity from prosecution for murder in exchange for his testimony. On April 22, 1995, Witness No. 16 was driving with Palma, who said he would be receiving a page, and that Witness No. 16 would have to drop him off at Torres’s house. Palma explained he had to do a favor for the “carnal, ” which Witness No. 16 understood to be the Mexican Mafia. Later when it was dark, Palma received a page, and Witness No. 16 drove him to Torres’s house. Torres, Logan, Valdez, Jose “Pepe” Ortiz, and Witness No. 12 were there. (See post, at p. 19.) Ortiz made a telephone call, and then pagers started going off. Ortiz said that they needed an extra car to go to El Monte and “take care of some business, ” and Witness No. 16 volunteered. The men left in Witness No. 16’s Thunderbird and a Nissan Maxima driven by Logan. Ortiz and Witness No. 12 rode with Witness No. 16, and Palma, Torres, and Valdez rode in the Nissan Maxima. Witness No. 16 was following Logan but lost sight of him at one point in El Monte. Less than a minute later, Witness No. 16 saw the Nissan pulled over on Rose Street. No one entered or exited the Nissan. Witness No. 16 pulled up behind the Nissan, and Logan then continued driving. They arrived at Maxson Road, and Ortiz directed Witness No. 16 to continue driving and to park on a different street.
Witness No. 16 showed Detective Davis the route he took when he drove from Torres’s house to Maxson Road on the night of the murders. Witness No. 16 indicated that it was in the area of the intersection of Rose and Shirley that he lost sight of the Nissan driven by Logan. Defendant lived at 10047 Rose, about a block from the intersection of Rose and Shirley. Witness No. 16 later saw the Nissan at the intersection of Baldwin and Rose.
Witness No. 13, Anthony “Scar” Torres’s sister, testified, and a recording of her previous testimony was also played for the jury. On the evening of April 22, 1995, Witness No. 13 saw Torres and other Sangra gang members at her mother’s house. When she left the house, she saw a brown Nissan Maxima parked in front. Later that night, Witness No. 13’s mother came to her house and said that Torres “was acting weird, ” that he was kissing her, hugging her, and saying that he loved her. He also said he was told to do something by the “Mafia.”
Several witnesses testified regarding circumstances surrounding the murders on the evening of April 22, 1995. Witness No. 3 saw Gustavo “Tito” Aguirre run down the street and into the back of 3843 Maxson Road where the murders occurred. A four-door Nissan Maxima was driving near Aguirre as he ran, and stopped in front of 3843 Maxson Road. Witness No. 2 observed a Nissan Maxima that appeared to be two-tone brown (described as blue or light green by Witness No. 1) pull up across the street; three Hispanic men got out. The driver, who also appeared to be Hispanic, remained in the car. The men went straight to the back of the house and Witness No. 2 lost sight of them. He then heard 10 to 15 gunshots. The men returned to the car and drove away with the lights off. Immediately afterward, victim Maria Moreno’s five- or six-year-old son Paul — his shirt soaked in blood — came to Witness No. 8’s house and told her his family had been shot. She contacted police.
Responding officers found the bodies of Anthony “Dido” Moreno and Gustavo “Tito” Aguirre. One was lying outside the side entrance to the house in a pool of blood and the other was inside the home, wedged between a bed and a wall, with one leg draped over the bed. Maria Moreno’s body was lying on the living room floor, with what appeared to be a child’s small bloody handprint on her back. The bodies of Maria’s children, Laura Moreno and Ambrose Padilla, were on the floor near Maria. All three adults died from gunshot wounds to the head, Laura died from a gunshot wound to her chest, and Ambrose suffered a fatal gunshot wound to his right eye. After searching the residence for several minutes, officers found an unharmed little girl hiding in a corner, sobbing and trembling.
Telephone records indicated that the telephone at the home of Jose “Pepe” Ortiz was used to call defendant’s pager number on April 22, 1995 at 8:44 p.m. The telephone at the home of Elizabeth Torres, where Anthony “Scar” Torres lived, was used to call defendant’s pager number on April 22, 1995 at 9:21 p.m., 9:22 p.m., 9:30 p.m., 10:59 p.m., and 11:00 p.m.
5) Events after the murders
Witness No. 16 testified that on the night of the murders, Jimmy “Character” Palma said that he had “killed the kids and the lady.” Valdez said he had “shot two guys, ” shooting the “first guy in the head.” Palma said that “when they went into the house... the people there thought that they were going to buy drugs and that [he] had shown them a rock of heroin and when the guy went to look at it, that is when [Valdez] shot him.” Torres said he stood by the door with a shotgun “just watching out.” Witness No. 16 did not know defendant and never heard his name mentioned.
After the murders, Anthony “Scar” Torres told his mother that “there weren’t supposed to be any kids there.” Torres told his sister, Witness No. 13, that they were supposed to kill one guy, but if “anybody got in the way, that they had to take care of them” and not leave witnesses. He also said that Palma had killed the children and that Sangra was going to take care of Palma for “killing the babies.” Palma was convicted of the murders in this case and sentenced to death. He was later murdered on death row in San Quentin State Prison by other inmates.
On the morning after the murders, Witness No. 15 asked Shyrock if he had anything to do with the murder of his family. Shyrock said he was sorry to hear about the murders on the news, denied having anything to do with them, and gave Witness No. 15 his condolences. Shyrock said if he had committed the murders, he “would have done it in another fashion.” As to Gustavo “Tito” Aguirre, Shyrock said: “That bastard. He was forcing me to kill him or do something to him so I don’t feel bad about him dying.”
The telephone at the home of Elizabeth Torres, where Anthony Torres lived, was used to call defendant’s pager number on April 23, 1995 at 12:52 p.m. and 2:53 p.m. The telephone at the residence of Valerie Palma, where Jimmy Palma lived, was used to call defendant’s pager on April 23, 1995 at 2:47 p.m., 2:48 p.m., and 2:57 p.m.
b. Expert testimony
Sergeant Valdemar was assigned to the prison gang section of the sheriff’s department and testified as an expert on the Mexican Mafia. The Mexican Mafia, or EME, was a prison gang with about 250 members. Membership in the Mexican Mafia was a “quantum leap above membership in a street gang.” Nearly all Hispanic gang members in Southern California paid allegiance to the Mexican Mafia. A member of this gang was referred to as a “carnal” or “brother.”
A Mexican Mafia member was expected not to cooperate with law enforcement or admit membership in the gang. Members who tried to “drop out” or disassociate from the gang would be placed on a “green light” or “hit” list. Sergeant Valdemar was of the opinion that victim Anthony “Dido” Moreno had been a member of the Mexican Mafia and dropped out sometime in 1988.
The Mexican Mafia also had “associates, ” who were often referred to as “sur, ” or “surenos, ” meaning “southern soldiers.” In addition, individuals who were related to gang members could be considered “sympathizers” to the Mexican Mafia in that they did “much of the business for the Mexican Mafia in relaying messages, taking money, [and] delivering drugs.”
If an individual had a tattoo of the letters “EME, ” that would be evidence of membership in the Mexican Mafia. An individual who had such a tattoo or otherwise claimed membership in the Mexican Mafia when he was not a member would be assaulted or perhaps even killed.
The Mexican Mafia “taxed” drug dealers in exchange for providing them protection. In Sergeant Valdemar’s view, an individual who robbed protected drug dealers would be killed by the Mexican Mafia.
Killings by the Mexican Mafia were characterized by the use of individuals close to the victim to provide the element of surprise, drugging, or otherwise relaxing the victim to diminish awareness (which would include giving a victim heroin before the killing), and assigning the hit to a prospective or new Mexican Mafia member to assess his fortitude, courage, and fighting ability. The Mexican Mafia did not generally sanction children getting hurt, and if a street gang member accidentally killed a child, the gang member would usually be placed on a hit list and killed. Sergeant Valdemar opined that Raymond Shyrock did not want children killed in this case.
The relationship between a member who “raises his hand” to sponsor a new member and the new member would be akin to one of mentor and student. A member would not be excused from carrying out a killing because he claimed close friendship with the intended victim.
Sergeant Valdemar said that word “vato” means “guy, ” “taking care of business” means “engaging in gang activity... [f]or furtherance of the gang” and usually involves violence, “down” means an individual who has an “exemplary gang lifestyle, ” and “ ‘went against his whole neighborhood’ ” means a person who took a position that benefited the Mexican Mafia but was possibly contrary to what the street gang would have wanted.
c. Defendant’s statement
Following defendant’s arrest in December 1995 for the murders in this case, he was interviewed by Sergeant Laurie and Detective Davis. His redacted statement was played for the jury, and a transcript was admitted into evidence. Because defendant challenges the sufficiency of the evidence to support the murder convictions, we review his statement in detail.
Defendant said: “I could tell you this much, man, yes, I’ve been active, whatever.... I never done no murder, I never been in a murder. I heard about a lot of them — a lot of people that been telling me about them, but I don’t really fuck with them.” Sergeant Laurie said, “Okay.” Defendant continued, “And I could tell you this much, I never been in a murder.” Laurie again said, “Okay.” Defendant said, “And I don’t know what murder you’re talking about. I never been in a murder.”
Defendant said he was originally from the El Monte Flores gang. He denied being a “carnal” but said he was affiliated with “them” and did “a lot of things for them.” Defendant did “little errands here and there, ” such as helping out with “lawyer fees.” He said, “Half of things they ask me I don’t do.”
Defendant knew Raymond Shyrock well and considered him a friend. Defendant said he was “real close” to the Morenos, the victims in this case. He “grew up with them and they used to live with” him “years ago.”
Defendant said he was baptizing his son on the day of the murders. The officers told defendant that “[p]eople are saying that you set it up.” Defendant replied, “How can I set it up if I was somewhere else? [¶]... [¶] My name could be all fucked up in that thing, let it be, but I didn’t do that shit, man, and I didn’t say shut up on that shit.” Defendant said he returned from the baptismal party at about 10:30 or 11:00 p.m. and received a telephone call informing him of the murders. The following morning, he spoke with Moreno family members and gave them money that had been raised for the funeral.
Defendant denied knowing individuals named Jose “Pepe” Ortiz, Danny “Tricky” Logan, or “Character.” Defendant spoke of his involvement in “CAUSE, ” an organization that held meetings with street gangs in an attempt to decrease violence. He had heard of Primo and Scar because at some point one of defendant’s “homeboys” was killed, and the murder was attributed to the Sangra gang. In early April 1995, defendant spoke with “a girl” familiar with the gang and learned the neighborhood was run by Primo and Scar. Defendant gave his pager number to the girl to give to Primo and Scar. Scar called and apparently said Primo was in charge. Defendant asked for Primo to call him, explaining defendant’s “homie got killed, ” and defendant wondered if they could “talk about this shit before it gets out of hand.”
Sergeant Laurie said defendant’s life was in danger, but not from law enforcement, and he was the only person who could help himself. Defendant said, “I wasn’t involved, ... I didn’t set it up. I didn’t give that order. I mean what do I get if I tell you who set it up and... all that? [¶]... [¶] Either way I’ll be fucked, right?” Defendant again denied he was involved, saying: “I didn’t even do this. To get a hold of this person to tell them that they know what and that’s it.” Sergeant Laurie asked, “You’re a middle man?” Defendant answered, “Yeah, I’m also a fuck man. They say you shut up — none of my thing. Just ask me to get a hold of these people, ... you know they know you don’t gotta do nothing, just tell them that I said that’s it, ... homie told me to tell you this and this and this and that, you know — yeah, we know — and that’s it.” Sergeant Laurie asked, “So what you’re saying is somebody... calls you, tells you to call somebody?” Defendant said, “Yeah, but see —” Sergeant Laurie asked, “You don’t know what’s on either side?” Defendant said, “They already talk[ed] about it through... so when they decide when, they call me and let them know, they already know.” Sergeant Laurie asked, “So you’re saying that somebody here has already talked to somebody here? They’ve already made the plans of what they’re gonna do and the whole thing, all they’re waiting for is somebody to say, yes, so they call you and tell you to call somebody and you don’t say anything except, yes.” Defendant said, “That’s it.” Sergeant Laurie asked, “And they act on that, because you’re the in-between?” Defendant said, “Yes. I — I’m not gonna fall for this shit, man.” Sergeant Laurie asked, “Were you the in-between on Maxson?” Defendant said, “No. I — I can tell you who was.” Sergeant Laurie laughed and said, “Tell me who was the in-between, you’re saying you’re not the in-between on Maxson?” Defendant said, “Yeah, not the in-between, the one on Maxson, I had nothing to do with that one.... I mean somebody had asked me if I wanted to be part of it, but I said, no. [¶]... [¶] ’Cuz I... know the family real good.” Sergeant Laurie said, “There are situations where brothers kill brothers.” Defendant said, “Yeah, I know there is.” Sergeant Laurie said, “[T]he fact that you know the family real good doesn’t necessarily ‘hold any water’ with this because... often times when people are told to do things there’s no choice in the matter.... [I]f you wanna tell me what’s up on this thing we’ll take a look at it, if what you say is true, I’m not gonna put a case on you, I’ll tell you that right up front.... [T]he last thing I wanna do is put you in jail for something you didn’t wanna do.” Defendant said, “I didn’t do nothing, man.” Sergeant Laurie said, “Well you’re saying that, but you’re also sitting there saying, I know who was the middle man.” Defendant said: “I didn’t do nothing, I mean come on everybody knows in the streets, everybody hears, everybody knows everything.” Sergeant Laurie said, “That’s true.” Defendant subsequently said, “Everybody knows all that in the streets, I mean that’s how you talk about it, that’s how you hear.”
Sergeant Laurie asked, “Why were the people taken out on Maxson?” Defendant subsequently said, “If I tell you... that would blow the whole thing, man.” Sergeant Laurie said, “I don’t understand.” Defendant said, “My kids, my wife, I mean they’ll all be all fucked up, because of me. You know what happened that day, ... they were people that did their shit, they fucked up period. The way they did that on their own. It wasn’t even supposed to go down even the way with what they did that day.” Detective Davis asked, “How was it suppose[d] to go?” Defendant said, “They were suppose[d] to do something else, they had nothing to do with that.”
Defendant subsequently said, “I tell you something, right, I’m still gonna get stuck in, I’m still gonna get stuck with everything else.” He also said, “I’m gonna get stuck whatever way you look at it.” Sergeant Laurie said, “What I have told you is if you’re not involved... in this thing.” Defendant said, “I ain’t involved in this thing.” Sergeant Laurie said, “I am not gonna stick you on it [sic].” Defendant said, “I’m not involved in it.” Sergeant Laurie subsequently said, “But unless you can convince me you’re not involved in it... and tell me why they’re saying you are and who is, there is nothing I can do for you. You say that that wasn’t suppose[d] to happen that way.” Defendant said, “I’m not saying nothing else no more.”
Sergeant Laurie subsequently asked: “You got any concern for your wife and kids?... Are they in trouble? No, not if... we just tough it out, huh?” Defendant said, “If you don’t tough it out, and — man, all that matters to me are my kids and my wife. You can’t... if I say anything — I mean I know a lot of things, you know what I mean. [¶]... [¶] I know damn too many things. [¶]... [¶]... [M]y problem is my family.”
2. Defense Case
Maria Maciel, defendant’s sister, testified that on April 22, 1995, she lived with defendant and his wife and three children. There was no telephone in their apartment. At about 9:00 or 9:30 a.m., defendant left with his wife and infant son to prepare for and attend the baptism. Maria babysat defendant’s two older children and did not attend the baptism. She saw defendant again at about 2:00 p.m. when she arrived at the baptismal party. He was there until she left at about 8:30 p.m., and was involved in activities such as barbecuing, jumping in the children’s bouncy house, cutting the cake, and breaking the piñata. She did not hear a pager on defendant go off or observe defendant appear to respond to a pager. There was a telephone in the house, and Maria saw defendant using the telephone to ascertain why their mother and sisters were not at the party and, upon learning they were at the hospital, to check on the condition of an injured family member. Maria did not see or meet any friends of defendant’s that she did not know; she did not know Witness No. 14 or meet him or a girl named Denise at the party. Defendant was good friends with Carlos de la Cruz, whose street name was Diablo.
Monique Pena, defendant’s wife and mother of his three children, testified that on April 22, 1995, at about 11:30 a.m., she and her husband baptized their son Joseph at St. Marianne’s Catholic church. The mass included 10 other children who were being baptized, and lasted about an hour to an hour and a half. Defendant, who was wearing a black long-sleeved shirt and tan slacks, Monique, and Joseph left the church at 1:00 to 1:15 p.m. and drove to Monique’s aunt’s house in Montebello where the baptismal party was held. They arrived at about 1:30 p.m., and she and defendant were at the party until they left at about 10:30 p.m. She would have noticed if he had been absent for half an hour, and she recalled he was present while they barbecued, had a moon bouncy house, broke a piñata, played a balloon game, opened gifts, and cleaned up afterward. She observed defendant on the telephone several times at her aunt’s house when he spoke to his parents and sisters to check on the condition of his niece, who had been hit by a car. A videotape showing defendant at the baptismal ceremony and scenes from the party was played for the jury. She was not aware her husband was a member of the Mexican Mafia.
Monique testified that she thought she knew Witness No. 14 and that he arrived at the party “pretty late, ” or about 9:00 p.m., right before they started opening presents. Opening presents took about 45 minutes.
Monique’s mother, Nora Ledezma, testified that she worked for the Internal Revenue Service. On April 22, 1995, at about 2:30 p.m., she arrived at the baptismal party which was held at her sister’s house in Montebello. Ledezma left the party at about 10:00 p.m., and defendant was present the entire time. She would have noticed if defendant had been gone for 30 minutes because she wanted to make sure he was helping her daughter. She was unaware that defendant was a member of either a street gang or the Mexican Mafia.
Witness No. 12 testified he had been a Sangra gang member. He had previously testified regarding the murders in this case and had been told by Deputy District Attorney John Monaghan that if he testified truthfully, nothing he said would be used to prosecute him for murder. Witness No. 12 did not know defendant and did not see him on April 22, 1995, the day of the murders. He did not speak to defendant or anyone named Pelon on the telephone that day.
On the night of the murders, Witness No. 12 was at Anthony “Scar” Torres’s house with Jimmy “Character” Palma, Jose “Pepe” Ortiz, Danny “Tricky” Logan, Richard “Primo” Valdez, and Witness No. 16. Torres said that they were “going to go hit a connection, ” which Witness No. 12 understood to mean rob a person who sells drugs. No one said anything about going to kill either a Mexican Mafia dropout or children. Torres received a telephone call, and everyone left his house about 10 to 15 minutes later.
Witness No. 12 and Ortiz got into the red Thunderbird, which Witness No. 16 drove, and everyone else got into Logan’s blue Nissan. Ortiz said they were going to meet at Maxson Street. The people in the Thunderbird lost sight of the other car on the 10 Freeway, and Witness No. 12 did not see it again until about two hours later when they returned to Torres’s house. After Witness No. 12 and the others in the Thunderbird arrived on Maxson Street, they waited for the other car to flash its lights to signal they were going to do the hit, but the signal never came. At some point, numerous police cars began converging on the area, and Ortiz said they should leave. They met up with the others later that night at Torres’s house. Palma bragged that he had shot someone in the head.
Stefanos Kaparos had owned a restaurant for 19 years on the corner of East Live Oak and Peck in Arcadia, where Witness No 15 testified that he and victim Anthony “Dido” Moreno had obtained money from a “fence” at a barber shop on the day of the murders so that they could purchase heroin. Kaparos testified that there had never been a barber shop there.
B. Penalty Phase
1. Prosecution Case
On September 3, 1993, at about 11:45 p.m., El Monte Police Detective Santos Hernandez observed Nathaniel Lane standing against a wall and being beaten by El Monte Flores gang members Carlos De la Cruz and Genaro Muro. Defendant then swung three times at Lane’s stomach and legs with a wooden baseball bat while De la Cruz and Muro each held one of Lane’s arms. Hernandez pointed his gun at the men and detained De la Cruz and Muro; defendant fled and was apprehended later. Lane’s forehead was swollen, he was bleeding from one eye, and he was in too much pain to stand up.
On August 30, 1994, Witness No. 17 was beaten by defendant and other El Monte Flores gang members near the San Gabriel River. During the beating, defendant stabbed Witness No. 17 in his right eye, and when Witness No. 17 fell down on his stomach, defendant stabbed him 37 times in his back, shoulder, head, and hands.
On September 20, 1997, at about 4:15 p.m., Los Angeles County Sheriff’s Deputy Robert Poindexter and another deputy were escorting inmate Wishum (Wishum’s first name is not in the record) to his jail cell. As they passed defendant’s cell, defendant stabbed Wishum two times in the stomach area with a five- to six-foot long spear. Wishum suffered two puncture lacerations to the right side of his stomach area and was bleeding.
On December 18, 1997, at about 7:50 a.m., Los Angeles County Sheriff’s Deputy Thomas Looney observed another deputy search defendant in preparation for moving him to a different housing area. An eight-inch piece of metal that had been sharpened to a point, known as a shank, was found in his left shower sandal. A seven-inch piece of metal, which Deputy Looney testified an inmate would possess in order to create a shank, was found in defendant’s right shower sandal.
Los Angeles County Sheriff’s Deputy Joe Mendoza testified that a “shank” is any “stabbing instrument that inmates make within the jail.” Mendoza considered the sharpened piece of metal found in defendant’s left shower sandal to be a shank and said that the piece of metal found in defendant’s right sandal could be sharpened by rubbing it on the concrete floor.
On December 6, 1997, Los Angeles County Sheriff’s Deputy Paul Cruz was supervising inmate Velasquez as he fed other inmates by inserting a food tray through a slot in each cell. Cruz opened the slot in defendant’s cell, and Velasquez reached down to a crate containing sandwiches, which was below the slot. As he did so, defendant stabbed Velasquez in the right shoulder blade. Defendant’s cell was searched, but no weapon was found.
On January 29, 1998, between 7:00 and 8:00 a.m., Los Angeles County Sheriff’s Deputy Craig Wiggins and another deputy shackled defendant in preparation for him going to court. As Wiggins approached defendant to turn him around and walk him out the door, defendant lunged at Wiggins and “head butt[ed]” him in the chest and shoulder area.
2. Defense Case
Rubin Egland testified that he was serving a sentence for assault with a deadly weapon and had been incarcerated next to defendant for about five months. On January 29, 1998, he heard Deputy Wiggins say to inmate Oscar Lopez: “You Mexican. You piece of shit.” Lopez threw an orange juice container at Wiggins. Wiggins threw it back and then said, “[f]ucking Mexican.” Defendant respectfully asked Wiggins why he was saying “these things” and “doing this stuff.” Wiggins grabbed defendant by his neck, put him in a head lock, and swung him to the floor. Defendant did not try to head butt Wiggins.
Around December 1997, Egland had observed inmate Raymond Velasquez, who was Black and delivered food to the other inmates, throw food at defendant’s cell. The following day Velasquez swung at defendant through the tray slot and said: “You fucking Mexican and wetback.” Defendant swung back in self-defense but did not have an object in his hand. During his time in custody with defendant, Egland had observed him try to mitigate racial tension by speaking with both Blacks and Hispanics.
Esperanza Maciel, defendant’s mother, testified that defendant was 28 years old, had a brother and seven sisters, and was her third oldest child. She had never known him to be violent with his siblings. He had a very good relationship with his sisters, gave them good advice, and tried to keep them away from individuals involved with gangs. Defendant played basketball when he was young and attended Arroyo High School in El Monte. Defendant had worked in a variety of jobs such as driving a truck, in a shipping department, and assisting his father in his metal polishing business. Defendant caused no problems at home, and moved out shortly before he got married. Esperanza had not been aware defendant was involved in gangs, and she did not know defendant as the person described by the guilt phase convictions and the prosecution’s penalty phase evidence. Defendant was a very good father to his three boys and was close to his 20 nieces and nephews.
Monique Pena testified that she and defendant had been married nearly nine years. They had three young boys. Defendant was the “best father, ” and the boys were “his world.” The family went camping and enjoyed other vacations. Defendant provided everything the family needed. When Monique was attending school, defendant would pick up the children from school and watch them; he “was never not there” for them. He drank moderately and did not use drugs. Monique was not familiar with defendant’s gang life.
Martha Maciel testified that she was defendant’s younger sister. Defendant was a good brother and was also her friend and advisor. He was loving and caring, and put the needs of others before his own. He was devoted to his family and loved them dearly. She had never seen defendant drunk or under the influence of drugs or involved in a physical altercation. Martha was not aware defendant was heavily involved with gangs. Maria Maciel, who was also one of defendant’s younger sisters, testified that defendant had assisted her by giving her rides to and from college and offering monetary support. He was a hard worker and the kind of person who would assist a stranded motorist.
Felipe Ayala, defendant’s cousin, grew up with defendant. He described defendant as a devoted father who believed in God and wanted his children to be baptized and grow up in the Catholic tradition. He said that defendant was not a “follower” and would not succumb to peer pressure.
Boyd Sorensen testified that he had set up defendant’s father in business at Sorensen’s Metal Polish, and observed defendant working for his father full-time for about three years. Defendant was a good worker who never caused problems and had a good personality. He got along well with his father and never manifested any violence in the shop. He ran errands for Sorensen on his own time and did not seek payment. Sorensen trusted defendant and gave him the keys to the shop.
Leonzo Moreno (who was not related to the victims) testified that he was an equipment operator for the Covina-Valley Unified School District and was an inactive gang member. After his brother was killed in 1994, Moreno met with defendant, Raymond Shyrock, and others who wanted to stop gang violence. These individuals got members from each gang together and were successful in stopping driveby shootings and other violence. Defendant was a “peaceful guy” who spoke to others with respect and dignity. Moreno observed defendant at meetings between rival gangs in which he was successful in negotiating conflict. Individuals generally preferred to speak to defendant because he was level-headed, listened to both sides, and tried to figure out the best solution for the problem. Moreno was familiar with CAUSE, which he described as an organization that worked to stop gang violence.
A. Pretrial Issues
1. Consular rights
Defendant contends that we should order an evidentiary hearing to determine whether failure to advise him he had the right to consult the Mexican consulate was prejudicial. We disagree.
In Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12 (Judg. of Mar. 31 (Avena), the International Court of Justice (ICJ) “considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States, ” regardless of any forfeiture of this claim under state law. (Medellin v. Texas (2008) 552 U.S. 491, 497-498.) “President George W. Bush determined, through a 2005 Memorandum for the Attorney General [citation], that the United States would ‘discharge its international obligations’ under Avena ‘by having State courts give effect to the decision.’ ” (Medellin v. Texas, at p. 498.) The high ...