P. v. Olague

Filed 4/7/09 P. v. Olague CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendants James Joseph Olague, Ernesto Duran Arellano, and Oscar Hurtado Cervantes appeal following their conviction for first-degree murder (Pen. Code, 187; undesignated statutory references are to the Penal Code) of Robert Stepper and Eric Folsom, and attempted murder of Vicki Folsom and Jessica Valdez on Halloween 2002. Defendants raise a variety of contentions. We shall order modification of Cervantess sentence to reduce to a one-third subordinate term a 10-year section 186.22 enhancement on Count 3. We shall otherwise affirm the judgments.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2003, an indictment was filed alleging that defendants and others -- Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and (later added) Gilberto Lopez^[2]-- committed the following crimes:

Count 1: First-degree murder of Robert Stepper ( 187, subd. (a)), with enhancements alleging the murder was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury ( 12022.53, subds. (a), (d)), and a principal personally discharged a firearm causing death or bodily injury ( 12022.53, subd. (a)). Count 2: First-degree murder of Eric Folsom, with enhancements as above. Count 3: Attempted murder of Vicki Folsom ( 187, subd. (a); 664, subd. (a)), with enhancements as above. Count 4: Attempted murder of Jessica Valdez, with enhancements as above.

The indictment also alleged special circumstances for multiple murder and intentional killings as participants in a criminal street gang ( 190.2, subds. (a)(3), (a)(22). The prosecutor sought the death penalty against Arellano and Cervantes only, not against Olague.

At trial, the prosecution presented evidence supporting its theory that, although the Norteo and Sureo gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteo leader or shot caller) and nonparty Candelario Garza (a Sureo leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteo) ordered the hit because victim Stepper (a Norteo) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteo) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who associated with Norteos, Sureos, and Crips. Stepper was the target, and the other victims were shot either because they were in the kill zone or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member^[3]) acted as lookout. Arellanos neighbor, Gilberto Lopez (a Sureo), was the getaway driver. Olague (a Sureo) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do.

Evidence adduced at trial included the following:

Easlon and Betancourt (Norteo) testified about a gathering at Arellanos apartment before Halloween 2002. Arellano asked Easlon and Betancourt to fuck up (beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what he was supposed to be doing to help the drug trade. Easlon (who owed Arellano $1,600 for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. Arellano asked Cervantes, who was also there, to handle it. Cervantes agreed and was given some drugs.^[4] Easlon, to pay off his debt, agreed to Arellanos request to station himself at the end of the street on Halloween and make sure nobody we know goes down that street . . . . Lopez came to the door and was told by Arellano, [i]ts going to go down, and Lopez was needed as the getaway driver. (Though Lopez had a beef with Cervantes, who impregnated Lopezs girlfriend, there was evidence that Lopez did not know Cervantes would be involved.) Arellano took a phone call, then said Jaime and Garza were on the way over with the gun and told Easlon and Betancourt to leave.^[5] Easlon testified he knows three Jaimes, one of which is Olague. Easlon did not stay and therefore did not know if it was Olague who showed up. However, Easlon testified it was Olague who showed up when the crime took place.

On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then left. Stepper began chatting with the other victims near a pickup truck in victim Valdezs driveway. Olague, whose job was to make sure others did their job, walked Cervantes partway down the street.

As related by the surviving victims, a man approached the victims, kind of grinned, pulled out a gun, aimed the gun at Steppers head, and fired from a distance of two feet (killing Stepper). The shooter then pointed the gun at the others and fired multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, though she had not identified him a photo lineup.

As Lopez drove the getaway car, Cervantes hit the dashboard and said, I got em, I got em. Lopez had not expected any shooting. He later told Garza that Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an alley and heard the gunshots. Lugo testified she was summoned to an apartment the next day where several people, including Cervantes and Olague, were present. Garza, Lopez, and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her children would be killed.

An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work together in drug activity and will commit a crime such as murder together to further their criminal enterprise, enhance both gangs reputations, and further instill fear and intimidation in the community and other gang members. A non-gang members participation would be a way to be accepted by the gangs.

All three defendants testified at trial and denied any involvement. Arellano (age 34 at trial) said he was a Norteo for 10 years but was not a shot caller. He denied any pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said he did not even know Cervantes or Olague before Halloween 2002, except for an incident where he almost got into a fight with Olague (whom he pegged as a Sureo). Arellano admitted that on one occasion he told Cervantes to handle it but testified he was telling Cervantes to go get a pipe to smoke drugs. Stepper was Arellanos friend, did not buy drugs from him, and did not owe him money. On Halloween, Arellano was on his way home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureo color). Arellano said his only prior crimes were spousal abuse, selling drugs, and participating in a prison riot in which he was just following gang orders, though he was in front of his cohorts.

Cervantes (age 28 at trial) testified he has never belonged to a gang, though he knew gang members. He knew Olague before Halloween, but not Arellano. When arrested, Cervantes said he knew this day was coming, but he thought he was being arrested for violating probation. Cervantes denied telling his cellmate, Richard Bowie, about the case and denied tampering with his handcuffs (evidence of which was adduced as an escape attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related misdemeanor. Alibi witnesses testified Cervantes was with them that night.

Olague (age 29 at trial) testified he was a gang member when he lived in Los Angeles (he equivocated on whether it was Sureo) and associated with southerners when he moved to Woodland. He was friendly with Cervantes. Olague did not know or have any contact with Arellano, except Olague ran from a brief confrontation with Arellano as a member of a rival gang in a parking lot about a month before the crimes. Olague denied any involvement in the crimes. He came upon the crime scene after a friend dropped him off and he was walking to a friends house. Olague admitted two prior felony convictions, for auto theft and verbally threatening his ex-wife.

To advance the defense theory that the police pressured the accomplices to make false confessions consistent with the prosecutions theory, the defense hammered at inconsistencies in the accomplices statements, and a defense expert testified about how police interrogations can elicit false confessions.

In May 2006, the jury returned verdicts finding all three defendants guilty on all counts and finding true all enhancement allegations.

In June 2006, the jury set the sentence for Arellano and Cervantes at life without the possibility of parole on the two counts of first degree murder.

The trial court denied defense motions for new trial.

On July 28, 2006, the trial court sentenced Arellano to prison for life without possibility of parole on Counts 1 and 2 (first degree murder). The court sentenced Arellano to nine years on Count 4 (attempted murder) and a consecutive term of two years, four months on Count 3 (attempted murder). The court imposed three 25-years-to-life terms for the section 12022.53, subdivisions (d) and (e), enhancements on Counts 1 through 3 and a 20-year term for the section 12022.53, subdivision (c), enhancement on Count 4.

Cervantes received the same sentence, plus two 10-year section 186.22 enhancements on Counts 3 and 4 plus an eight-month consecutive term on an unrelated drug offense.

Olague received the same sentence as Arellano, except Olague received the midterm sentence of seven years (rather than the upper term of nine years) for the Count 4 attempted murder.

DISCUSSION

We shall reference the contentions by the parties who present them, but we have in mind that on appeal, as in the trial court, each defendant says he joins in the others contentions to the extent he could benefit from them.

I. Grand Jury

Cervantes contends the trial court erred in denying a motion to dismiss the indictment on the ground that the District Attorney, by making off-the-record comments to the grand jury while the court reporter was setting up the equipment, engaged in misconduct which tainted the grand jury proceedings. Assuming the matter is subject to review on appeal after our denial of a writ petition, we see no basis for reversal.

A. Background

Since this was a capital case, all proceedings were required to be transcribed under section 190.9, though defendants do not rely on any law unique to death penalty cases. In opposition to a dismissal motion (by Arellano), the prosecution submitted declarations from (former) District Attorney David Henderson, the court reporter at the grand jury proceeding, and deputy district attorneys Jeff Reisig and Jim Walker (who presented the case to the grand jury and later became the trial prosecutors). The declarations showed that, in the minutes it took for the court reporter to set up the equipment, Henderson told the grand jurors that this was a gang case and therefore extra security was present in and around the building, and the grand jurors should be aware of their surroundings as they came and went to their cars and should report any suspicious individuals to the police officers. One of the grand jurors asked if police could escort them to their cars, and Henderson said the police would oblige if any juror requested an escort.

The trial court allowed live cross-examination of the declarants, who testified consistent with their declarations. Contrary to Cervantess assertion that the court allowed live testimony because Hendersons comments preconditioned the grand jury and were presumed to be prejudicial, the court stated it wanted to proceed with caution in this potential death penalty case. Henderson testified he knew they were not on the record when he spoke to the grand jurors.

The trial court denied the dismissal motion, concluding (1) the proceedings had not yet reached a critical stage requiring a reporters transcript when Henderson made his comments and (2) nothing was said to sway or affect the impartiality of the grand jury.

We denied a defense petition for writ of prohibition (C048249), and the California Supreme Court denied review on February 2, 2005 (S129724).

B. Analysis

A grand jury proceeding ( 939 et seq.) is not an adversary hearing adjudicating guilt or innocence but rather an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. ( 939.8; Guillory v. Superior Court (2003) 31 Cal.4th 168, 174; People v. Brown (1999) 75 Cal.App.4th 916, 931.) A grand jury, like a magistrate in a preliminary hearing on an information, assesses whether there is adequate basis for bringing a criminal charge. (Guillory, supra, 31 Cal.4th at p. 174.) An indictment once found must be presented to a competent court ( 944), which marks the point at which the government commits itself to prosecute the person with a formal charge. (Guillory, supra, 31 Cal.4th at p. 175; Brown, supra, 75 Cal.App.4th at p. 932.)

An indictment may be set aside on the ground that the proceedings have failed to comport with the demands of due process. (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1038.) Due process requires grand juries to be unbiased and impartial. ( 939.5 [grand jury foreperson shall direct any member who cannot act impartially and without prejudice to retire]; People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1089.) Due process may be violated if grand jury proceedings are conducted in such a way as to compromise the grand jurys ability to act independently and impartially in reaching its determination to indict based on probable cause. (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 435.) A showing of actual prejudice is necessary to justify reversal when irregularities in grand jury proceedings are challenged after trial on appeal of a conviction. (People v. Millwee (1998) 18 Cal.4th 96, 121-122; People v. Towler (1982) 31 Cal.3d 105, 123.)

Cervantes argues the error is reversible per se -- or at least subject to a Chapman standard (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman)) -- because the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair. We disagree.

Even accepting defendants view that the remarks were made at a critical stage of the proceedings, the prosecutors brief remarks did not so compromise the structural protections of the grand jury as to render the proceedings fundamentally unfair, and no showing of actual prejudice justifies reversal in this case. Cervantes suggests the District Attorneys comments constituted evidence, in violation of section 939.6, which says the grand jury shall receive no other evidence than specified evidence. Cervantes cites People v. Backus (1979) 23 Cal.3d 360 at page 393, for the proposition that a presentation of inadmissible or extraneous information may compromise the independence of the grand jury and contribute to the decision to indict. Cervantes argues the District Attorney tainted the grand jury at the outset by instilling fear and subliminally introducing in the grand jurors a bias against the targets of the investigation.

We do not endorse the District Attorneys conduct but do not find a due process violation. For the most part, the District Attorney told the grand jury no more than they would find out from the opening statement, and therefore his comments could not have prejudiced defendants. The District Attorney did also say that extra security was present -- information that may or may not have come out later in the proceedings. Upon inquiry, he also said grand jurors could request an escort to their car. He also said they should be aware of their surroundings and report any suspicious activity. However, any prejudice came from the elementary fact that this was a gang case -- a fact which the grand jury would learn as soon as the opening statement began.

Cervantes compares this case to Dustin v. Superior Court (2002) 99 Cal.App.4th 1311, which dismissed a case because the prosecutor had ordered the court reporter to leave the room and not to transcribe his opening statement and closing argument to the grand jury in a capital case. However, there is no comparison. The Dustin court considered it inescapable that the prosecutor excluded the court reporter for the express purpose of precluding discovery of his comments. (Id. at p. 1323.) Here, the District Attorney merely made a few introductory remarks in the presence of the court reporter, and the record is settled as to what he said.

Cervantes complains we cannot know exactly what the District Attorney said. However, he elsewhere acknowledges in a footnote that the record has effectively been settled as to what actually may have been said . . . .

We conclude the District Attorneys unreported comments to the grand jury do not warrant reversal.

II. Venue

Cervantes contends the trial court erred in denying his motion to change venue ( 1033;^[6]Cal. Rules of Court, rule 4.151^[7]) due to publicity about the case, and the error violated his constitutional rights to a fair and impartial jury, a fair trial, and due process.

Cervantes does not claim he exhausted his peremptory challenges. Indeed, his attorney expressed satisfaction with the jury. Cervantes acknowledges that the failure to exhaust such challenges is an indication that a defendant concluded the jurors were fair. (People v. Panah (2005) 35 Cal.4th 395, 448.) However, he notes Olague did exhaust his challenges, including an additional peremptory challenge given by the court (which was requested on the ground that one defense attorney had alienated prospective jurors before his client pled out). Olague joins in Cervantess contentions to the extent they may benefit Olague.

We see no basis for reversal.

A. Background

The crimes occurred in October 2002. Defendants were arraigned in October 2003. After extensive in limine proceedings, voir dire started on August 9, 2005. Prospective jurors were told not to expose themselves to publicity about the case, and the jury questionnaires asked about their prior exposure to publicity about the case.

In October 2005, the jury was selected but was not sworn in (because the court gave a continuance for defendants to adjust to codefendants conversion to prosecution witnesses). The court repeated to the jurors the admonition not to read anything in the newspaper, about this case, dont watch any TV shows like CSI, those kinds of things. . . . [] . . . [] You can read the newspaper, you can watch TV, we ask you not to read any newspaper articles about this case or any newspaper articles about other murder trials that may be going on here or somewhere else, and TV shows of the like.

On October 20, 2005, after jury selection but before the jurors were sworn in, Cervantes moved for a change of venue on the grounds of publicity in local newspapers and the jurors having seen some codefendants dismissed with plea bargains. The newspaper articles covered not only the crime, but also reports of witnesses being threatened, the District Attorneys probe of defense counsel for alleged disclosure of witness information to defendants, the conviction of Christina Marten, Betancourts guilty plea, in limine rulings, and jury selection. Cervantes requested funds to poll the community.

The trial court denied the motion, noting the 12 jurors and six alternates had not read about the case and had been admonished not to do so.

B. Analysis

A trial court should grant a change of venue when the defendant demonstrates a reasonable likelihood that in the absence of such relief, he cannot obtain a fair trial. [Citations.] On appeal, we [as the reviewing court] make an independent determination of whether a fair trial was obtainable. [Citations.] To make that decision, we examine five factors: the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. [Citation.] (People v. Weaver (2001) 26 Cal.4th 876, 905.) Where the motion is made after jury selection, the court should also take into account the prospective jurors answers on voir dire, to determine whether pretrial publicity has, in fact, affected the defendants ability to obtain an impartial jury. (People v. Staten (2000) 24 Cal.4th 434, 449.)

1. Nature and Gravity of Offense

Because this was a capital case with double murder, the nature and gravity of the offense tilts strongly in favor of granting a change in venue, although this factor is not dispositive. (Weaver, supra, 26 Cal.4th at p. 905.)

2. Nature and Extent of News Coverage

The motion to change venue (filed mid-October 2005) attached 14 newspaper articles (plus a few duplicates) from Yolo Countys two daily newspapers -- the Woodland Daily Democrat and the Davis Enterprise -- published during a 20-month period between February 2004 and October 2005. They reported the prosecution was seeking the death penalty, a potential witness had been beaten, the defense attorneys were being investigated for wrongdoing, Betancourt and Easlon entered plea bargains, the progress of in limine motions, when jury selection began and ended, and the outcome of Martens trial.

However, besides failing to show the circulation of the newspapers, most of the articles were published after voir dire started on August 9, 2005, and the trial court admonished each group called for voir dire not to read any newspaper articles or watch television shows about murder cases. The court also re-admonished the jurors when they were sworn in. We have reviewed the newspaper reports in the record and agree with the People that, for the most part, they reported facts and events that later would be adduced at trial. Moreover, some of the articles were published long before voir dire began. There were only three articles in 2005 before voir dire began. As we discuss post, voir dire revealed no prejudice from the publicity.

Cervantes says the court apologized to the jury for a tactless newspaper article on March 30, 2006. Cervantes does not describe the contents of the article. From our own review of the record, we surmise it may have referred to a personal medical issue of one juror who had to withdraw and be replaced by an alternate.

Regarding television coverage, Cervantes does not complain about any pretrial television news reports about the case. Rather, he says the trial court permitted Univision Television (Channel 19) to film some trial proceedings (video only, no sound) on the condition the jurors not be shown. Cervantes also cites various instances of media requests to film other parts of the trial, to show continuing public interest in the case. However, the medias interest during trial does not demonstrate reversible error in the trial courts denial of the motion to change venue.

3. Size of the Community

Cervantes says Yolo Countys population at the time of trial, extrapolated from census data, was 184,364, most of whom lived in Woodland, West Sacramento, and Davis. Cervantes does not specify how many lived in Woodland. Cervantes also says Yolo County ranked 28 of the 58 California counties in terms of population. In our view, size is a neutral factor in this case, but even if it were a factor in defendants favor, reversal would not be required.

Cervantes cites People v. Rodriguez (1986) 42 Cal.3d 730 at page 742, as precedent for changing venue from Yolo County, but venue was not at issue in that appeal. The introductory paragraph of the opinion merely observed that, though the crimes were committed in Yolo County, venue was changed to San Mateo County. (Id. at p. 742.) Cases are not authority for propositions not at issue in the appellate opinion. (People v. Scheid (1997) 16 Cal.4th 1, 17.)

Cervantes notes Steffen v. Municipal Court (1978) 80 Cal.App.3d 623 changed venue from San Mateo County which, with close to 575,000 residents (id. at p. 626), was much bigger than Yolo County. However, in that case size was mentioned only with regard to the Peoples argument that newspaper publicity could not be regarded as pervasive, since newspaper circulation was only 65,000. The appellate court agreed with the defendants point that the figures were misleading unless consideration were given to factors such as family size. (Ibid.)

The key consideration is whether it can be shown that the population is of such a size that it neutralizes or dilutes the impact of adverse publicity. (Weaver, supra, 26 Cal.4th at p. 905 [since adverse publicity was neither relentless nor virulent, the moderate size of Kern County, population 450,000, did not undermine the trial courts decision to deny a change of venue].)

Similarly here the moderate size of the community did not undermine the denial of a venue change.

4. Status of Defendant in the Community

Cervantes says he could not get a fair trial in Yolo County because he is an outsider, in that he is not a native of Yolo County and has no real, sustained ties to it. He was born in Mexico (in 1974), moved to Woodland with his family when he was 12, moved to Idaho with his family when he was a high school senior, and eventually moved back to Woodland to work for his uncle in the construction field. He spent some time incarcerated for various drug offenses between 1994 and 1999. In 2000, he moved to Phoenix briefly but came back to Woodland the same year. In November 2001, he was arrested for another drug offense. Upon his release, he moved to Oceanside. He moved back to Woodland two weeks before the murders, staying with relatives or his girlfriend.

Cervantes has ties to Woodland; he is not an outsider.

5. Status of the Victims

Cervantes acknowledges the victims were not well known before the shootings, but he quotes from Odle v. Superior Court (1982) 32 Cal.3d 932 at page 940, that the murder victim by virtue of the events and media coverage after the crimes, became a posthumous celebrity . . . . However, in Odle the victim was a police officer who had earned numerous commendations and left behind a pregnant wife. (Id. at pp. 940-941.) His funeral was attended by a thousand police officers. Schools were closed. Flags were flown at half-mast. The Chamber of Commerce named the officer citizen of the year. A fund for the family raised over $50,000 from contributors all over the state and county. (Ibid.) Unlike Odle, Cervantes points to no similar type of evidence in this case, making the victims posthumous celebrities.

Cervantes says a local citizen can be a prominent victim. But he points to no evidence that these victims were prominent.

Having considered the foregoing five factors, we see no impropriety in the trial courts denial of a venue change.

6. Claim of Venire Pool Saturation

Cervantes argues the transcript of voir dire shows venue should have been changed.

Prospective jurors not excused for hardship filled out a big questionnaire which included questions about exposure to pretrial publicity. Some prospective jurors were excused based on their written answers to the questionnaire, without verbal questioning.

According to the People, the fact that no seated juror or alternate was aware of the publicity or affected by it was the best evidence for denying a change of venue. However, [r]esolution of the venue question requires consideration of the responses of jurors who do not ultimately become members of the trial panel as well as those who do. [Citations.] (Odle, supra, 32 Cal.3d at p. 944.)

Cervantes makes various points regarding specific venirepersons (whom we consider it unnecessary to identify) who were not chosen for the jury.

He separately describes 20 persons who read newspaper articles about the case. They recalled young people were killed on Halloween; some recalled gang involvement. One person, who works with Olagues cousin, said, Woodland not being a very big town . . . you kind of talk about the news and whats going on about the Halloween murder, there was a gal, girl, who set up these guys over a drug debt that she owed but she tried to pass it on to these guys, they ended up getting shot, two guys and two girls in the . . . back of a truck . . . . Two guys got killed. Another person, who happened to be the cousin of a court staffer, is a teacher who taught the sister of one of the victims. The teacher read about the case in the newspaper and was privy to discussions about it in the teachers lounge. In response to a question whether she could be fair and impartial, she wrote, Im not sure. Another person lives near and visited the crime scene. Another person admitted to anti-gang feelings that might limit the ability to focus on the evidence.

Cervantes notes some of these people, as well as four other prospective jurors, knew friends, relatives, or acquaintances of the victims, witnesses, or defendants. One person was privy to a gang-related incident that may or may not have been connected to this case.

Cervantes says some prospective jurors knew each other. He cites voir dire of one person who said he or she recognized several people on the panel. This person (who was the one who said Woodland was not a big town) was excused by the court after expressing too much familiarity with gangs. He said he knew a lot of gang members. He did not know these defendants but assumed they were gang members, based on what he had read in the papers over the years and heard from other people. He said, I guess the shooter already got sent up, that is what I understand, and supposedly these are the shot callers . . . .

Although most of the people who heard about the case said they could be impartial, Cervantes cites authority that adverse publicity can create such a presumption of prejudice that jurors disclaimers should be disbelieved. (Rideau v. Louisiana (1963) 373 U.S. 723, 724-727 [10 L.Ed.2d 663]; Irvin v. Dowd (1961) 366 U.S. 717, 722-723 [6 L.Ed.2d 751], superseded by statute on other grounds, as stated in Moffat v. Gilmore (7th Cir. 1997) 113 F.3d 698.) However, the publicity in Rideau was a televised broadcast of the defendant confessing his guilt to police in a videotaped interrogation. In Irvin, the publicity included newspaper reports of the defendants criminal record (including his juvenile record), his police line-up identification, his confession to police, the fact that on one day of voir dire 27 of 35 prospective jurors had been excused for bias, and a roving reporters solicitation of curbstone opinions from the public. (Irvin, supra, 366 U.S. 717, 719, 725-727.) Here, defendants fail to show that the publicity in this case was such that prejudice should be presumed.

Cervantes argues the fact that he needed to use up all his peremptory challenges before the last alternate was picked shows a concern that the defense was forced to endure a compromise of the least-objectionable jurors. He fails to show this concern warrants reversal of the judgment.

7. Shrinking Defense Table

Cervantes argues this case involves a unique consideration, in that the case began with seven defendants but shrank to three defendants by the time voir dire was completed. On appeal, Cervantes revisits the point raised in the trial court, that venue should have been changed because the shrinking of the defense table allowed the community to form a biased impression about the remaining defendants. However, the fact that others were charged and pled out would become known to any jury when those persons testified, no matter where the case was tried.

We conclude the trial courts denial of a venue change is not grounds for reversal.

III. Search of Jail Cell

Olague contends the warrantless search of his jail cell by Woodland police and seizure of documents invaded the defense camp, interfered with his attorney-client relationship, and was outrageous governmental conduct necessitating dismissal. We disagree.

A. Background

On January 23, 2004, police searched defendants jail cells following the beating of Keen Thurman in another facility after Thurman testified before the grand jury in this case. (At trial, Thurman testified the beating was unrelated to this case.) The police believed Arellano ordered the assault. The police seized (and sealed) copies of grand jury transcripts with Olagues handwritten notes, police reports, letters and photographs relating to this case.

On August 5, 2004, Olague moved to recuse the district attorneys office or to dismiss the action for governmental misconduct. He claimed the government attempted to intimidate defense counsel by the warrantless search and by bringing criminal charges against defense counsel for failing to redact witness names and addresses ( 1054.2) from the documents they turned over to their clients. On September 17, 2004, Olague filed a supplemental motion claiming the prosecution and its agents had prevented him from preparing a meaningful defense and deprived him of effective assistance of counsel.

At the hearing, the prosecution adduced evidence that envelopes from Arellano had been found in the jail cell of one of Thurmans assailants, Arthur Bonton, though the letters did not refer to the Halloween murders. In searching defendants cells, the police were looking for evidence of a relationship between defendants and Thurmans assailants or evidence of gang involvement. The police did not inform jail staff of the reason for the search. The jail staff collected items from defendants cells and brought them to the police, who scanned documents, including documents in an envelope labeled attorney-client, and seized copies of police reports because they contained unredacted witness information. Because of the concern about unredacted witness information which might be creating other victims like Thurman, a second search was conducted, during which an unredacted grand jury transcript was seized and partially copied. The officers who viewed the documents testified they scanned them for failure to redact; they did not recall seeing or reading any handwritten notations.

Olagues attorney stated his motion did not challenge whether the items were properly seized, but whether the prosecution viewed attorney-client communications. The trial court indicated it understood the motion to be a motion for dismissal because the prosecution looked at something it should not have seen.

The trial court denied recusal or dismissal, stating there was no outrageous conduct and no evidence that any attorney in the district attorneys office read the documents. It was appropriate to investigate the apparent transgression of counsel in failing to redact the documents.

B. Analysis

On appeal, Olague contends the search of his cell by Woodland police violated the Fourth Amendment; the search and seizure invaded the defense camp; and dismissal is the proper remedy. We disagree. We reject, post, the contention that the trial court erred in denying the recusal motion.

Assuming for the sake of argument that the first point is preserved for appeal, there was no Fourth Amendment violation, because there is no expectation of privacy in a jail cell. (Hudson v. Palmer (1984) 468 U.S. 517, 526 [82 L.Ed.2d 393]; People v. Davis (2005) 36 Cal.4th 510, 523-528 [pretrial detainee had no expectation of privacy and therefore police did not violate Fourth Amendment by tape-recording his conversations with others in holding cells].) Olagues reply brief says he raises the issue to preserve it for federal review.

Olague also says this case is different because it infringed on privileged communications between attorney and client. He notes section 2600 says a prison inmate is deprived of only such rights as is reasonably related to legitimate penological interests. He notes a regulation (Cal. Code Regs., tit. 15, 1063) requires jail administrators to permit inmates to correspond confidentially with counsel, and the administrators may open and inspect such mail only to search for contraband and in the inmates presence.

Olague says that, even though the District Attorney did not read the documents, the police as part of the prosecution team read the documents and discussed their contents with the District Attorney. Olague cites Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, which dismissed a case after the prosecutor sent an investigator to listen to a defendants conversation with his attorney, even though they learned no strategic information.

However, Olague does not show that the contents of any privileged communications or defense strategy were read by the police or conveyed to the prosecutor. All that was conveyed was that the papers contained contraband, i.e., unredacted witness information. That an envelope in a jail cell is labeled, attorney-client does not immunize it from a jail search. The papers from which the witness information should have been redacted were not, in and of themselves, privileged communications. They were police reports and court transcripts. The failure to redact would be obvious from scanning the face of the documents, since redaction typically leaves chunks blacked out or whited out.

This case is not like Morrow, supra, 30 Cal.App.4th 1252, where the prosecutor orchestrated an eavesdropping upon a privileged attorney-client conversation. (Id. at p. 1261.) Here, the initial police discovery of defense counsels breach of his duty to redact witness personal information was happenstance. There is no evidence the prosecutor was apprised of the contents of any handwritten notes on the grand jury transcript. Although Olague says the trial court found the prosecutors agent read the documents, what the court said was that the agent had an opportunity to review the materials. There is no evidence the agent read any handwritten notes on the materials.

Olague argues that to meet his burden he would have had to show the handwritten notes to the government witnesses -- thereby waiving attorney-client privilege -- in order to question them on the witness stand as to whether they had read them. Not true.

Olague argues the burden should have been on the prosecution to show absence of prejudice, because when the government affirmatively takes steps to interfere with the attorney-client relationship, it would be difficult for the defendant to show prejudice. However, the government did not affirmatively take steps to interfere with any attorney-client relationship. We see no parallel between this case and Olagues cited cases where undercover agents posing as codefendants of the accused attended strategy sessions between the accused and his attorney.

There are no grounds for reversal regarding the jailhouse search and seizure.

IV. Courtroom Restraints

Cervantes contends the trial court improperly ordered him to be restrained during trial without a showing of manifest need, and any consent by defense counsel to the restraints was extorted by the threat of a more severe restraint -- a REACT (stun) belt. We see no basis for reversal.

A. Background

In limine, the trial court indicated defendants would be restrained in some way pursuant to county policy and [g]iven recent events. The court later clarified it was talking about Chicago and Atlanta and given this many defendants, thats all. The court also acknowledged, however, that restraints had to be decided on a case-by-case basis with an opportunity for the parties to object. The trial court (which had presided over Christina Martens trial), said she was not restrained, but she was about four feet 10 inches tall, whereas this case involved at the time five large men in a confined area. The prosecutor agreed with defense counsel that the California Supreme Court required the trial court to make an individualized determination as to the necessity of restraint for each defendant. The trial court said, Well let the Supreme Court come and sit next to five people charged with capital murder. It is easy for them to say all this. When reminded that the prosecutor agreed there should be a hearing, the court said, Fine, well have a hearing.

Sergeant Carter Vaughn of the Sheriffs Department, who was in charge of courthouse security, testified as follows:

Arellano had been arrested several times for domestic violence, was found in possession of a weapon in his cell (a piece of hard plastic with hooks that normally come from the bottom of plastic chairs), joined in when other inmates made a scene (though he was well-behaved if alone), and had a gang tattoo on his neck (the number 14). Gangs present security problems because if one moves they all move. They tend to cover each others back [sic]. If one decides to make a decision to fight in the courtroom then theyre all going to fight in the courtroom. Even the audience changes, the dynamics of the audience and the people that come to court are different than they are say for a burglary case with no gang affiliation. Given the nature of the charges, these defendants did not have a lot to lose by creating a disturbance in the courtroom. They sometimes refused to obey the deputies orders, and if one defendant acted out, the others usually joined in. They routinely disobeyed the directive not to communicate in court with anyone other than the judge or their attorneys. They were not written up for noncompliance because it would be pointless, since they were already in administrative segregation.

Cervantes was normally the first of the defendants to disobey the deputies orders. He had a prior arrest for possession of a concealed firearm. (He was in a car which had a gun under the seat of another passenger; he pled no contest to drug possession and was sent to drug diversion for six months; the other charges were dropped.) An incident report revealed he was found with contraband in his cell while awaiting this trial, but the report did not specify the nature of the contraband. Family members attempted several times to communicate with Cervantes as he went back and forth to court.

Olague had prior arrests for crimes of violence, i.e., challenging people to fight, dissuading a witness, stalking, threatening people, and brandishing weapons. A razor blade was found in his cell while awaiting this trial. He was belligerent to correctional staff, argumentative and refused to obey orders, even simple orders such as refusing to lock down.

The Sergeant described the physical aspects of the courtroom that raised security concerns. Two tables for defendants and their attorneys sat less than two feet from the prosecution table, about five feet from the jury box, 15 to 20 feet from the judge and court reporter, and 10 feet from the first row of the audience. All tables had a vanity skirt which prevented a view of defendants feet from the jurys position. The security concerns about the audience were that an audience member might try to assault or pass something to a defendant.

There were three options for restraints: (1) a REACT stun belt, (2) ankle shackles and belly chains, and (3) handcuffs. The REACT belt, which could be secured under a pant leg, would be the least visible to jurors. Defendants would have to keep their hands on the table at all times. If not, a deputy would issue a warning (a beep). If the defendant did not respond, the belt would be activated, sending 50,000 volts, which could leave electrical burns on the skin. On a scale of one to 10, the REACT belt could be rated seven in terms of pain. This would be the first time the REACT belt was used in a Yolo County courtroom. This belt is a different model from another belt which had accidental activations.

The county buys about 200 sets of handcuffs a year and has to replace about 40 sets a year due to tampering.

The court found a manifest need for some form of restraint because of the nature of the charges, the number of defendants, the physical proximity of defendants to everyone (jurors, prosecutors, witnesses and audience), defendants conduct, and the fact that 12 jurors already found Christina Marten guilty in her severed trial.

The court opted for belly chains with the lock in the back, leaving one hand free. These restraints were not visible when defendants were sitting in court.^[8] (Although Cervantes complains both hands were restrained when the court was short on security, that was outside the jurys presence.)

On September 21, 2005, the Sergeant told the court that when he removed Cervantess handcuffs the preceding day, one of the handcuffs had come off and the other was bent, suggesting tampering. Cervantes denied tampering with the handcuffs. The court denied his request for an evidentiary hearing about the prior condition of the handcuffs, concluded Cervantes had attempted to escape (we reject, post, Cervantess challenge to this ruling), and ordered that both his hands be restrained during trial. The court suggested that he sit quietly if he did not want the jury to see the cuffs.

Each defendant later opted to wear the REACT belt instead of the chains. The trial court later, in accordance with revised county policy, had defendants reaffirm their preference for the REACT belt.

The court later agreed defendants could be free from restraints while testifying.

When Cervantes complained the security staff would not let him wear a tie, a belt, or his own shoes, the court ordered that he be allowed to wear a tie and belt.

B. Analysis

Section 688 provides, No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. A defendant may be physically restrained at trial only if there is a manifest need for such restraints. [Citations.] Such a manifest need arises only upon a showing of unruliness, an announced intention to escape, or [e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . . [Citation.] Moreover, the showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion. [Citation.] [Citation.] The trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant. [Citation.] (People v. Seaton (2001) 26 Cal.4th 598, 651; accord, People v. Mar (2002) 28 Cal.4th 1201, 1216-1217 (Mar) [reversed judgment due to improper use of stun belt].) We review the trial courts decision under an abuse of discretion standard. (Seaton, supra, 26 Cal.4th at p. 652.)

The trial court did not abuse its discretion. Although it would be wrong to use restraints because of events in Chicago or Atlanta, the record supports the trial courts ultimate conclusion that use of restraints was justified by Cervantess tampering with the handcuffs, disobedience of custodial officers orders, display of group mentality (he acted up when his codefendants acted up), and the possession of weapons by group members Arellano and Olague while in custody.

Cervantes argues the trial court abdicated its decision to the sheriff, failed to base the courts decision on any misconduct by Cervantes himself, and focused on only two factors -- the nature of the charges and county policy. However, the quoted transcript shows the court was referring to security concerns in transporting defendants from the courthouse across the street to the jail.

Cervantes suggests it was improper for the court to consider him part of a group acting as a gang, rather than an individual. However, an individualized assessment of a defendant properly takes into consideration that the defendant misbehaves when he is in a group with his codefendants.

Even assuming abuse of discretion, there is no prejudice warranting reversal.

If physical restraints are not visible to the jury, the Watson standard (People v. Watson (1956) 46 Cal.2d 818 (Watson)) is used to assess prejudice. (Mar, supra, 28 Cal.4th at p. 1225, fn. 7.) Even if we use the Chapman standard, as urged by Cervantes, we see no basis for reversal. There is no evidence the physical restraints were visible to the jury inside the courtroom. The jury did eventually learn restraints had been used, when evidence was adduced that Cervantes tampered with his handcuffs, but by that time all defendants were wearing REACT belts rather than handcuffs, and there is no evidence the jury saw any restraints.

Cervantes argues there is an inference that the jurors saw the chains in the courtroom, because after Cervantes attempted escape in September 2005, he was no longer permitted to wear a single handcuff, and his restraints must have been visible to the jury because the court said, I suggest that he sit quietly and not display his cuffs to the potential jurors . . . if [he] does not want them to see them. We do not infer that Cervantes brought attention to the cuffs.

Even assuming for the sake of argument that the jurors could see the restraints in court and even assuming a Chapman standard, we see no prejudice. The evidence of guilt was strong.

Cervantes argues that, regardless whether the jurors actually saw the restraints, the true prejudice in this case was the psychological effect of the restraints on him during trial. However, he fails to show any psychological effect. He merely points out his chair did not have wheels, and he claims, without any supporting evidence, that every time [he] wanted to confer with his counsel he would have had to adjust his fixed chair in order to lean over, get closer, and whisper to counsel, and he would have been distracted from the testimony at trial by the effort to keep his chains from rattling while he did so.

We conclude Cervantes fails to show grounds for reversal based on the use of physical restraints.

V. Courtroom Security

Cervantes argues there was excessive security in the courtroom. He fails to show grounds for reversal.

A. Background

Six officers (three of whom wore plainclothes) were present in the courtroom when defendants wore stun belts. When the belly chains were used, there were eight uniformed deputies in court. One deputy for each defendant sat directly behind defendants. Two metal detectors were used -- one at the courthouse entrance, the other at the courtroom entrance -- due to the nature of the trial and prior incidents of weapons being smuggled into the courthouse in unrelated cases. During defendants testimony, a uniformed officer sat at the prosecution table.

B. Analysis

A trial court has broad discretion to maintain an orderly and secure courtroom, and its security measures are reviewed under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 253.) The presence of armed guards in the courtroom need not be justified, unless they are present in unreasonable numbers. (Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 [89 L.Ed.2d 525] [armed guards in public places are taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm]; People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8.) The use of metal detectors in courthouses need not be justified. (People v. Jenkins (2000) 22 Cal.4th 900, 997.)

Assuming the contention is not forfeited for failure to obtain a ruling in the trial court, Cervantes on appeal fails to show abuse of discretion. He says the judge abdicated his discretion to the sheriffs department. We disagree. Although the court and security officer made comments about the sheriff being responsible for security, there were also comments that the sheriff made recommendations to the court. The court could properly consider the recommendations of the sheriffs department.

Cervantes suggests eight uniformed officers were too many, but he provides us with no evidence of the size of the courtroom or where they stood or sat. Moreover, only six officers (three of whom wore civilian clothes) were present for most of the trial, after defendants opted for the stun belts.

Cervantes says the jury must have figured out that the three men in civilian clothes sitting directly behind defendants every day were security officers. We disagree. Perhaps they could have been viewed as part of the defense team.

Regarding the second metal detector, even assuming the jurors (who did not have to pass through the second screening) were aware of it, Cervantes fails to show grounds for reversal. He merely asserts, without legal support, that the second detector could not be used absent proof that a member of the public intended to smuggle a weapon or other contraband into court.

We see no abuse of discretion regarding courtroom security.

VI. Claims of Evidentiary Error

Defendants make numerous claims of evidentiary error, all of which, according to defendants, rose to the level of constitutional violations. We shall conclude any evidentiary error was harmless (individually and cumulatively).

A. Admission of Evidence Re Christina Marten

1. Calling Marten to the Witness Stand

Arellano contends the trial court erred in permitting the prosecutor to parade Marten before the jury in jail garb (she already had been found guilty in her severed trial), knowing she would refuse to testify, and the error denied Arellano due process, a fair trial, and the right to confront witnesses. Even assuming Marten was in jail garb (an assertion unsupported by any citation to the record), we see no grounds for reversal.

In response to defense in limine objections, the prosecutor said he would not make any statements about [Martens] testimony whatsoever in opening statements if no deal had been reached with Marten. The prosecutor said, we dont intend to mention Christina Marten in our opening unless we have already made a deal, as far as what she would say. (Italics added.)

In his opening statement, the prosecutor described the roles various people played in the crime, and said, Christina Marten was Robert Steppers friend. It was her job to make sure that Stepper went where he was supposed to go, that he walked into the ambush. [] . . . [] Now, as I mentioned, Richard[,] Nate and Gilberto have all made deals and will testify. As far as Christina Marten goes, we intend to call her as a witness. No deals have been made with Christina Marten.

At the recess, defense counsel