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Superior Court of Los Angeles County, No. VA048531, Patrick Couwenberg, Judge.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Christina A. Spaulding, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
[188 Cal.Rptr.3d 8] [349 P.3d 110]
Chin, J., expressing the unanimous view of
In 1999, a jury convicted defendant Tommy Adrian Trujeque of first degree murder of Max Facundo (Pen. Code, § 187, subd. (a)),  second degree murder of Raul Luis Apodaca (§ 187, subd. (a)), and second degree robbery of Ronni Mandujano and Spartan Burgers restaurant (§ 211). As to all three counts, it found that defendant personally used a deadly and dangerous weapon, respectively, a knife, a screwdriver, and a handgun. (Former § § 12022, 12022.5, subd. (a)(1), 12022.53, subd. (b).) [188 Cal.Rptr.3d 9] Waiving a jury trial, defendant stipulated to a 1971 prior second degree murder conviction alleged as a special circumstance, and admitted other prior convictions alleged in the information. As to both murder counts, the jury found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)), while the trial court found true the prior murder special circumstance allegation (§ 190.2, subd. (a)(2)). After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4), and imposed a sentence of death, along with an additional consecutive term of 25 years to life in prison for the robbery count. The trial court also sentenced defendant to various consecutive sentence enhancements, all of which were stayed pending imposition of the death judgment. This appeal is automatic. (§ 1239, subd. (b).)
Defendant's 1999 trial took place more than a decade after the murders of Facundo and Apodaca, and the delay in prosecution is the subject of various claims defendant raises on appeal. For reasons that follow, we reverse the judgment of conviction for the second [349 P.3d 111] degree murder of Apodaca, and reverse the penalty judgment based on our setting aside both the prior murder and multiple-murder special-circumstance findings. (See post, at p. 281.) Although we must reverse the penalty judgment, we have included additional factual background as necessary to provide context.
I. Factual and Procedural Background
A. Guilt Phase
1. Prosecution evidence
a. Murder of Max Facundo
The prosecution presented evidence that on June 21, 1986, defendant stabbed and killed Max Facundo, the abusive boyfriend of defendant's cousin, Charlene Trujeque. 
When Charlene was 16 or 17 years old, defendant began writing letters to her while he was incarcerated. In the letters, defendant asked about his family and told Charlene to stay out of trouble. Charlene's mother, Elena Trujeque, read the letters defendant had sent and became concerned. In particular, Elena thought one of the letters read more like a " love letter" than a " cousinly" letter because defendant said he would protect Charlene if anybody hurt her, and that she " mean[t] the world to" him. He also wrote " you'll always be mine and you'll always be close to my heart." Elena also discovered that Charlene was accepting collect telephone calls from defendant, who was still incarcerated. Elena and Charlene's father, Charlie Trujeque, tried to stop Charlene from getting " too friendly" with defendant, but Charlene continued to write to him.
In 1984, when Charlene was about 20 years old, she began dating Facundo and often stayed at his house. Though their relationship appeared fine at first, during the final months of their relationship, Facundo began to beat up Charlene when she refused to do drugs with him. She did not tell her parents (defendant's uncle and aunt) about the beatings, but they would see her bruised face when she came home. Elena recalled seeing injuries on Charlene, including black eyes and bruises, on 15 to 20 separate occasions. Though Charlene lied to her parents about how she got her injuries, Elena said " everybody knew" that Facundo beat up their daughter. While Charlene's parents were upset and afraid for her life, they voiced their concerns only to Charlene, and repeatedly asked Charlene to end her relationship with Facundo. [188 Cal.Rptr.3d 10] Although Charlie did not verbally threaten Facundo, he told Elena that he was going to beat up Facundo and once ran after him with a baseball bat. On one visit, after Facundo refused to let them see their daughter, Charlie and Elena went to the police to report the domestic violence. However, the parents were told that the police could not do anything unless Charlene reported it herself.
After defendant was released from prison in May 1986, he and Charlene met for the first time at her parents' house. Charlene did not mention Facundo to defendant and she did not have any visible injuries. According to Elena, the two talked all night.
On the evening of June 21, 1986, the day Facundo was killed, Charlene was at her parents' house and sported a black eye. Defendant came over with another cousin, Raymond Guzman. Almost as soon as they got there, defendant and Raymond called Charlie outside to talk. They spoke for about five minutes. When Elena asked Charlie what they had talked about, Charlie would not respond; he seemed nervous and afraid. However, sometime earlier, Charlie had asked defendant to break Facundo's leg or arm to teach him a lesson, but not to hurt him too badly.
When defendant asked Charlene how she got her black eye and if her boyfriend did it, she would not say. Defendant repeatedly asked Charlene whether Facundo would be coming by later because defendant wanted to " meet him and talk to him." Charlene could tell defendant was angry about her black eye, so she asked him to promise not to hurt Facundo. He replied that promises were made to be broken, but that she need not worry because nothing would happen.
[349 P.3d 112] When Facundo came to Charlie and Elena's house to pick up Charlene, defendant asked Charlene if they would drop off both defendant and Raymond at the home of Raymond's sister, Pat Perez, in South Gate. Facundo agreed to do so, and the four left in Facundo's car. Defendant and Raymond were seated in the back, Charlene was in the front passenger seat, and Facundo was driving. Facundo pulled out a cigarette dipped in PCP, began smoking it, and shared it with Charlene and Raymond. At some point, Facundo pulled over to let Charlene drive. They arrived at Pat's house around 10:45 p.m. Charlene exited the car to let Raymond out of the backseat. She and Raymond walked towards Pat's home, and waited for Facundo and defendant to follow. When she heard yelling, Charlene turned around and saw Facundo and defendant struggling. She ran towards them and screamed for them to stop. Charlene held Facundo, who was covered in blood, and they fell onto the ground. Defendant fled the scene. Facundo died of multiple stab wounds to the chest.
When the police arrived at the scene of the stabbing, Charlene was still screaming. The police handcuffed her hands and feet and placed her on her stomach in a patrol car. They eventually transported her to the police station. Charlene's blouse was ripped and she had cuts on her chest and right forearm. Detective Terry McWeeney of the South Gate Police Department
interviewed both Charlene and Raymond while they were in custody. Charlene told the detective she saw Facundo lying in the street, but did not see defendant or Raymond. She never told the police that defendant had killed Facundo.
Pat called Charlie and Elena and told them that defendant had killed Facundo and that the police had already taken Charlene and Raymond to the station. They tried calling the police station, but could not get any information. They returned home. Defendant later called [188 Cal.Rptr.3d 11] Charlie and Elena's house and asked for a ride. According to Elena, they picked defendant up at a 7-Eleven convenience store on the corner of Firestone and Atlantic in South Gate. He asked to be dropped off at his mother's house in El Sereno. During the drive, defendant told Charlie and Elena that he killed Facundo. Charlie yelled at him, " '[W]hy did you do it?'" and told defendant he never wanted him to kill Facundo. Elena testified defendant told her, " ' Tia [(meaning " aunt" in Spanish)], you don't have to worry anything more about this anymore.'" Elena also testified defendant told her he " had no remorse. He did it like--like it was nothing. He didn't know the guy, like I didn't know him. He had no feelings for him, so he just done [ sic ] him away."
Hours after the murder, around 2:00 or 3:00 a.m., Sergeant Russell Beecher of the South Gate Police Department received a call from a man identifying himself as defendant. The caller said that he was the one who murdered Facundo and that Charlene and Raymond, who were in custody, should be released. On June 26, 1986, defendant was arrested at his mother's house in El Sereno for the murder of Facundo. The charges, however, were dropped on July 2, 1986, for lack of probable cause.
For over a decade, the case remained dormant until 1998 when defendant--who at the time was serving a life sentence for an unrelated armed robbery--contacted the Los Angeles County Sheriff's Department and confessed to Facundo's murder, along with the murder of Raul Apodaca and another armed robbery, in order to receive the death penalty. In June 1998, he was charged with the 1986 murder of Facundo in a three-count complaint.
b. Murder of Raul Apodaca
At trial, the prosecution also presented evidence that on January 23, 1987, defendant and Jesse Salazar  killed Raul Luis Apodaca at an East Los
Angeles upholstery shop [349 P.3d 113] owned by Richard " Conejo" Rivera.  Rivera dealt drugs from the shop, which also served as a hangout for White Fence gang members.
During the 1999 trial, Robert De Alva testified that he was at the upholstery shop drinking and doing drugs the evening of January 23, 1987. Given his admitted drug use, De Alva explained he had a poor memory and could not recall many details from that night except that he and six to eight other individuals had walked to the upholstery shop from a nearby bar, the Quiet Cannon. At the shop, De Alva had injected heroin and had passed out on a table. When the prosecution asked about Apodaca being killed, he said: " All I remember is a guy laid on the floor and taking him to the hospital and some guys around him and some guys leaving, and that's all I remember." Though he did see some " scuffling," De Alva was " not aware there was a fight" and did not know who was involved. De Alva also did not recall much of the previous statement he had given to Detective Birl Adams several days [188 Cal.Rptr.3d 12] after the murder. When the prosecution pointed to defendant at the defense table and asked if De Alva had seen him that night, De Alva replied: " He don't look familiar."
Responding to De Alva's prior inconsistent statements, Detective Adams testified that when he interviewed De Alva on January 26, 1987, three days after the killing, De Alva recounted many details about the night Apodaca was killed. De Alva told Detective Adams that he was at the upholstery shop with Rivera, Salazar, Apodaca, defendant, and several other individuals. They were playing poker when a fight broke out. After the fight was broken up, two individuals left the shop and De Alva lay down on top of a table in the middle of the shop to sleep. Remaining at the shop with Rivera and De Alva were defendant, Salazar, and Apodaca. De Alva woke up when he heard and saw defendant, Salazar, and Apodaca fighting. Suddenly, Apodaca fell to the floor, and defendant and Salazar ran out of the shop. After checking on Apodaca, Rivera told De Alva that Apodaca had been stabbed. They tried to resuscitate Apodaca, and then took him to East Los Angeles Doctors Hospital in a van. De Alva stayed at the hospital about 15 minutes and then left. Apodaca later died from a stab wound to the chest. De Alva first found out that Apodaca had died during the January 26 interview with Detective Adams; he appeared upset. De Alva had no trouble describing either defendant or Salazar to Detective Adams. Two days later, on January 28, 1987, De Alva identified defendant and Salazar from a 13-photo array Detective Adams showed him.
The upholstery shop's owner, Richard Rivera (whose testimony from defendant's Apr. 8, 1987 preliminary hearing was read into the trial record), gave a similar account of the events. (See ante, at p. 239, fn. 4.) He testified that during the poker game, Salazar and Frank Contreras got into a fistfight. In breaking up the fight, Apodaca grabbed and restrained Salazar, and Luis Villalobos grabbed Contreras. After the fight, everyone starting leaving one by one, except for Rivera, defendant, Salazar, Apodaca, and De Alva. Except for De Alva, all had been staying at the shop for the past few days. Rivera went to the bathroom. When he came out " a couple minutes" later, Apodaca was lying on his back and not breathing. Rivera and De Alva opened up his shirt and saw that he had a puncture wound in his chest. Rivera did not see either defendant or Salazar in the shop, but when he went outside, he saw them walking away quickly. After Rivera and De Alva both tried to give Apodaca mouth-to-mouth resuscitation, they dragged him into a van and drove him to a hospital. Rivera did not call the police because he " figured Raul [Apodaca] was going to live, and he could deal with it if they questioned him. I didn't think that Raul was going to die." He lied to both the nurse and Apodaca's stepfather, telling them that Apodaca had been stabbed at the Quiet Cannon bar and not at his upholstery shop because " I just didn't want it to go down at the shop, I guess."
[349 P.3d 114] On February 5, 1987, defendant and Salazar were charged with the murder of Apodaca. The case was dismissed a month later. The prosecution eventually entered into a plea agreement with Salazar, who pleaded guilty to voluntary manslaughter. On March 25, 1987, the prosecution refiled the first degree murder charge against defendant, but after the preliminary hearing, he was held to answer for only the lesser offense of manslaughter. On April 24, 1987, the prosecution filed an information again charging defendant with the first degree murder of [188 Cal.Rptr.3d 13] Apodaca. After the prosecution informed the court that they could not find the material witness, De Alva, the murder charge was dismissed on June 23, 1987. The case lay dormant until 1998, when defendant confessed to the murder.
c. Robbery of Spartan Burgers restaurant
The prosecution presented evidence that on January 21, 1998, defendant robbed Spartan Burgers restaurant in Huntington Park. According to the restaurant's cashier, Ronni Mandujano, defendant came in around 8:00 p.m. and first ordered food. When it came time to pay, defendant pulled out a small black handgun and demanded money. The restaurant's owner (who was not identified by name) approached Mandujano and defendant, opened the register, and placed the cashbox on the counter. Pointing the gun at Mandujano the entire time, defendant asked the owner if he had any other money in the restaurant. The owner said there was additional money in the
back. Defendant ordered Mandujano and the owner to the back. Defendant pushed Mandujano, who could feel defendant pressing the gun on her back and head. After the owner gave him more money, defendant left. Mandujano called the police. A few months later, on April 29, 1998, Mandujano identified defendant from a six-pack photo array. She testified that she was " positive" it was defendant and also identified him in the courtroom.
2. Defense evidence
a. Murder of Max Facundo
Against the advice of counsel, defendant testified on his own behalf. His account of Facundo's killing and events surrounding it largely tracked the evidence adduced at trial. (See ante, at pp. 236-238.) However, defendant's version differed in these material respects: Defendant testified that Charlie had asked him to kill Facundo not just hurt him, and that Elena was lying about Charlie asking him only to break Facundo's arms and legs. On cross-examination, however, defendant admitted Charlie never used the words " go kill him" but said to " take care of it," which defendant took to mean " killing Max and getting away with it." Though Charlie never told defendant why he wanted him to kill Facundo, defendant thought it was " because he was beating up on my cousin." Though Elena sent him money while he was incarcerated, defendant did not kill Facundo for the money. Elena also told defendant that Facundo beats up Charlene " just about every day." Elena also gave him $ 300 to buy a gun.
Defendant testified he intended to inflict a lethal wound on Facundo by using a method of stabbing he learned in prison; he also hoped to inflict at least 100 stab wounds. He also admitted he " couldn't wait to kill him. I didn't want to wait," and that he " could have done it later if I wanted to." Defendant stated he had been thinking about killing Facundo since he was released from prison. When Charlie and Elena picked defendant up after the killing, defendant said their " troubles are over," meaning " I don't have to watch my back for anyone coming after me, and Charlene doesn't have to worry about getting any black eyes, so it's over."
b. Murder of Raul Apodaca
Defendant testified that both he and Rivera were members of the White Fence gang, and that he and others used to frequent Rivera's upholstery shop. Defendant's gang moniker was " Killer" ; a piece of wood bearing that name was found at the shop.
His account of the events leading up to the killing of Apodaca largely tracked eyewitness De Alva's trial testimony and Rivera's [188 Cal.Rptr.3d 14] testimony from the
preliminary hearing. As to the fight between Salazar and Apodaca, defendant [349 P.3d 115] testified that he thought that Salazar was getting the worse of the fight, so defendant stepped in to help his friend. Apodaca, who was on top of Salazar, struck defendant in the face. Defendant picked up a screwdriver and stabbed Apodaca two or three times. He saw Salazar stab Apodaca in the chest with another screwdriver. Defendant recalled stabbing Apodaca on the left side, but did not remember the exact location or number of stabbings. Defendant did not know who was responsible for the lethal wound.
c. Robbery of Spartan Burgers restaurant
On cross-examination, defendant denied robbing Spartan Burgers and claimed the main witness, Ronni Mandujano, was " wrong." Defense counsel did not cross-examine Mandujano.
3. Defendant's confession to the murders and desire to be prosecuted
a. 1998 confession to Los Angeles County Sheriff's deputies
The Facundo and Apodaca murder cases lay dormant for over 10 years. In February 1998, Los Angeles County Sheriff's Deputy Frank Durazo received a telephone call from another deputy regarding an inmate, defendant. Defendant was in custody in the San Diego County jail and claimed to have information about two homicides and a robbery. Deputy Durazo and his partner, Los Angeles County Sheriff's Deputy Jose Romero, drove to San Diego to interview defendant. The February 20, 1998 tape-recorded interview, a transcript of which was admitted as an exhibit, was played for the jury but was not simultaneously transcribed into the record. Defendant's statement to the deputies about the Facundo and Apodaca murders and the Spartan Burgers robbery was generally consistent with his testimony at trial.
As to the Apodaca murder, however, defendant provided further context. According to defendant, before heading to Rivera's upholstery shop from the Quiet Cannon bar, Salazar had told defendant that he hated Apodaca and wanted to kill him. Salazar said he was going to stab Apodaca and that he wanted defendant " 'to have my back, and if--and if--if he starts getting the best of me and everything just, you know, just back my play.'" Later, when Apodaca and Salazar started fighting at the upholstery shop and defendant intervened, Apodaca hit defendant in the face. That is when, according to defendant, " automatically my--the red light goes on and the alarm goes off and I get, you know, that did it, and I said now fuck this mother fucker, I don't even know him, he ain't done nothing to me, but I just don't like him,
because of the way he is, you know." As defendant reached for a screwdriver, he saw Salazar on top of Apodaca, stabbing him. Defendant then stabbed Apodaca two or three times on the left side of his body. After defendant was arrested, he " gave [Salazar] up."
Regarding the Spartan Burgers robbery, which at trial defendant denied committing, defendant initially told the deputies that he had robbed the restaurant with his cousin, Theodore " Teddy" Trujeque (Charlene's brother and Elena and Charlie's son), because Teddy needed money. Defendant thought he " got about close to $ 400," of which he gave Teddy $ 150 and kept the rest. Defendant did not tell authorities about Teddy's involvement for " personal reasons."
b. Letter to Los Angeles County District Attorney
Over defense counsel's objection, the prosecution introduced a letter defendant [188 Cal.Rptr.3d 15] had written to then Los Angeles County District Attorney Gil Garcetti (Garcetti letter). In the over 600-word letter, written shortly before his September 1998 preliminary hearing and while he was representing himself, defendant admitted he murdered both Apodaca and Facundo while " fully aware of all of my mental faculties" and urged Garcetti to seek the death penalty against him. The Garcetti letter also stated that " both of those cowards deserved what they got: death and an early expiration in life, to say the least!" ; that if he " had the opportunity to do it over I would cut off their heads and send 'em both to their family!"
B. Penalty Phase
1. Aggravating evidence
a. Murder of Allen Rothenberg
At trial, the prosecution presented evidence that on February 7, 1969, less than a [349 P.3d 116] month after he turned 16 years old, defendant robbed and fatally stabbed Allen Rothenberg. Rothenberg was delivering beer for Nate's Liquor Store to defendant's home at 3302 Paola Avenue in Los Angeles. In a 1969 statement to detectives, which was read to the jury, defendant said he called up Nate's Liquor Store as " Mr. Martinez" and ordered a case of Colt 45 beer. Defendant stated he was talking to a girl in the bedroom when his friend, Bert
Gonzalez, told him someone was at the door. Defendant told detectives: " I already had a knife with me because I already had it planned that I was going to rob the guy when he got there." Defendant " got a knife and put it around [Rothenberg's] neck and threw him on the floor and told him this was a holdup. ... [¶ ] ... [¶ ] I just--I kept--I just kept stabbing him." He stated he did not remember how many times he stabbed Rothenberg, but that Rothenberg " kept on giving me a hassle and finally he settled down and he just laid there." Defendant dragged Rothenberg's body through the bedroom and down the stairs. Bert helped defendant throw his body over the next yard. Defendant indicated he cut his hands because his hand " kept sliding down the blade" when he was stabbing Rothenberg.
Former Los Angeles Police Officer Ruben Sanchez, who responded to the call at 3302 Paola, testified that officers found Rothenberg's body in the yard next door. Rothenberg had been stabbed multiple times in the chest and his pants pockets were turned inside out. A trail of blood led back into the house where detectives found blood in the dining room, a bloody doorknob, and blood splats on the wall. An investigator located a bloody 13-inch kitchen knife at the side of the house. Officer Sanchez identified numerous photographs of the Rothenberg crime scene, which were introduced into evidence. The trial court took judicial notice of defendant's juvenile court files.
b. Other offenses
The prosecution presented evidence that defendant committed a number of assaults and robberies from 1978 to 1998.
c. Garcetti letter
Over defense counsel's renewed objection, the trial court admitted the Garcetti letter at the penalty phase. This version, [188 Cal.Rptr.3d 16] which had fewer redactions than the version admitted at the guilt phase, included defendant's statement that he did not " regret my actions in any way, shape, or form" and his threat to kill someone in prison if he did not get the death penalty.
2. Mitigating evidence
a. Family history
Through the testimony of defendant's half sister and several maternal aunts and uncles, defendant presented evidence of his childhood and his mother's family history. On defendant's behalf, his ex-wife and their daughter, along with his former juvenile probation officer and parole officer, all testified.
Defense counsel also presented testimony from a psychiatrist who evaluated defendant as a juvenile and from ...