PEOPLE v. CRUZ

Filed 7/24/08 (this opn. should follow S148029, also filed 7/24/08)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S042224

v. )

) Sonoma County

TOMAS VERANO CRUZ, ) Super. Ct. No. 21687

)

Defendant and Appellant. )

)

Story Continued From Part III ..

Initially, we note defendant made a pretrial motion to dismiss the escape charge and the special circumstance allegation of murder to perfect an escape on the ground that the evidence was insufficient to establish that his arrest was lawful. The motion was denied. After the prosecution rested its case-in-chief at the guilt phase, defendant moved pursuant to section 1118.1 for a directed verdict in his favor on both the escape charge ( 4532) and the special circumstance allegation of murder to perfect escape from lawful custody ( 190.2, subd. (a)(5)). He contended, citing Wood, supra, 46 Cal.App.3d 564, that the crime of escape required that he be booked, charged, or convicted before he could attempt to escape or escape, and that he was not booked for the offense for which he was arrested prior to being transported from the Burney substation to the main jail in Redding. The trial court treated this legal basis for the motion for a directed verdict as a uniform challenge to both the escape charge and the special circumstance allegation.

There is, however, an important distinction to be drawn here. In his argument before this court challenging the murder to perfect escape from lawful custody special-circumstance finding, defendant acknowledges he was arrested, albeit unlawfully. We have, however, already concluded defendants arrest for public intoxication pursuant to section 647(f) was lawful, in connection with our rejection of his challenge to the murder of a peace officer special circumstance. (Ante, at p. 42.) That legal basis having now been removed as a challenge to this murder to perfect escape from lawful custody special circumstance ( 190.2, subd. (a)(5)), we believe this special circumstance finding is rendered legally valid, regardless whether defendant was thereafter validly booked for the public intoxication offense, a requirement going to the validity of the section 4532 conviction. Put differently, a formal charge and conviction of escape under section 4532 is not required to establish the murder to perfect an escape from lawful custody special circumstance, although one happens to be present in this case. Given the lawfulness of defendants arrest, his escape from the lawful custody of Deputy Perrigo, for purposes of establishing the murder to perfect an escape special circumstance, cannot be found to turn on the validity of his conviction of the crime of escape pursuant to section 4532 alone, regardless whether he was properly booked for that offense, as is required to establish the validity of that conviction. (Wood, supra, 46 Cal.App.3d 566.) If that were the case, then had defendant killed Deputy Perrigo for the purpose of escaping from the deputys custody after defendants lawful arrest for a violation of section 647(f) but before they reached the Burney substation and defendant could be booked on the public intoxication charge, defendant would be immunized from prosecution for murder for the purpose of perfecting escape from lawful custody.

Turning to defendants claim that the special circumstance of murder to perfect escape from lawful custody must be set aside because he was not properly booked on the public intoxication charge for which he was arrested within the meaning of the escape statute ( 4532), we find the claim unavailing.

Defendant places principal reliance on Deputy Pittss trial testimony that he (defendant) was not fingerprinted or booked upon arrival at the Burney substation because that usually happened at Redding. Deputy Pitts testimony, however, is not controlling on this point of law.

Rather, the term to book is defined in section 7, subdivision 21, as the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest. (Italics added.) Defendants arrest clearly was recorded in official police records prior to his being transported from the Burney substation toward Redding; hence that fact itself establishes that he was technically booked on the section 647(f) charge within the meaning of section 7, subdivision (21), and the escape statute ( 4532).

Shasta County Sheriffs Sergeant Bradd McDannold testified, in connection with the section 1118.1 motion for a directed verdict on this special circumstance allegation, that a probable cause declaration is normally filled out and placed in the arrestees permanent jacket for inclusion in the sheriffs records, and that Deputy Perrigo followed that procedure in defendants case. Additionally, the Burney substation maintains an official daily log recording the activities of all of its officers, which is kept by the records supervisor and is an official record of the Shasta County Sheriffs Department. The daily log for the date and time of defendants arrest recorded all pertinent information surrounding his arrest. We therefore find that the probable cause declaration and the daily log memorializing the details of defendants arrest constituted recordation of [his] arrest in official police records within the meaning of the definition of book[ed] found in section 7, subdivision (21).

Additionally, Sergeant McDannold testified that the reason defendant was not fingerprinted or photographed upon being brought into the substation on the morning of October 21 was that his fingerprints and photograph were already on file with the department as a result of his earlier arrest in July of that same year by the same agency in connection with the prowling/public intoxication incident. In such instances, all that was required to complete the official booking process at the Burney substation and to authorize transport of defendant to the main jail in Redding was the completion of the probable cause declaration. Sergeant McDannold testified further that public intoxication is not a retainable offense requiring fingerprinting in the first instance.

We conclude the record establishes that following defendants valid arrest for a violation of section 647(f), and his transport to the Burney substation, defendant was booked on the charge within the statutory definition of that term, and hence the evidence is sufficient to support all the requisite elements of the murder to perfect escape from lawful custody special-circumstance finding.

3. Lying in Wait Special Circumstance

a. Constitutionality

Defendant contends the special circumstance of lying in wait is unconstitutional because it fails to meaningfully narrow death eligibility. We have repeatedly rejected the same contention with respect to analogous facts and circumstances. (See, e.g., Gutierrez, supra, 28 Cal.4th at p. 1089; People v. Crittenden, supra, 9 Cal.4th 83, 155; People v. Sims (1993) 5 Cal.4th 405, 434 (Sims); People v. Roberts (1992) 2 Cal.4th 271, 322-323; People v. Wader (1993) 5 Cal.4th 610, 669; People v. Edwards (1991) 54 Cal.3d 787, 824; People v. Edelbacher (1989) 47 Cal.3d 983, 1023; People v. Morales (1989) 48 Cal.3d 527, 557-558 (Morales).)

The distinguishing factors identified in Morales [, supra, 48 Cal.3d 527] and Sims [, supra, 5 Cal.4th 405] that characterize the lying-in-wait special circumstance constitute clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty. (People v. Sims, supra, 5 Cal.4th at p. 434.) (Gutierrez, supra, 28 Cal.4th at p. 1149.)

Defendant additionally contends the standard lying-in-wait special circumstance instruction given below, CALJIC No. 8.81.15, is impossible to understand and apply. This specific claim too has been repeatedly rejected. (Sims, supra, 5 Cal.4th at p. 434; People v. Michaels (2002) 28 Cal.4th 486, 516-517.)

b. Sufficiency of Evidence of Lying in Wait

Defendant contends there was no evidence of any of the elements of lying-in-wait other than concealment of purpose, and mere concealment of purpose is not enough to establish that a murder was committed while lying in wait. He urges that, Here, [defendant] did nothing to place himself in a position of advantage. The crime was committed from the back seat of a police car in which he had been ordered to sit. It was sheer misfortune, and not planning, that led to his discovery of Deputy Perrigos fanny pack, and the weapon inside, at a time when he was handcuffed in the back seat of a patrol car, when he [was] drunk, hurt, angry, confused, and frightened.

Defendants argument belies the facts, even as related in his own confession to police, which we have found was free from constitutional infirmity and properly introduced into evidence below. (Ante, at pp. 29-35.)

[T]he lying-in-wait special circumstance requires an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . . (People v. Morales, supra, 48 Cal.3d at p. 557; People v. Carpenter (1997) 15 Cal.4th 312, 388; People v. Sims, supra, 5 Cal.4th at p. 432.) Furthermore, the lying-in-wait special circumstance requires that the killing take place during the period of concealment and watchful waiting[.] (Gutierrez, supra, 28 Cal.4th at p. 1149.) All of those elements are established on this record.

In his statement to police, defendant related that after being returned to the patrol car for transport to Redding, and while his hands were handcuffed behind him, he began kicking the front seat of the vehicle and a fanny pack with a weapon fell out. He retrieved the handgun, worked the action and saw that it was loaded and functional, then hid the gun behind him near where the seatbelt attaches to the seat. According to defendant, he and Estrada considered shooting Deputy Perrigo in the parking lot of the substation and escaping, but decided not to because there were other deputies present. Ultimately they decided to wait until they were on the road where there were no houses and shoot Deputy Perrigo, then escape. Defendant claimed that once the three were a short distance outside of Burney, in an area where defendant thought there were no houses, Estrada gave him hand signals and told defendant to shoot him. Defendant stated he put the gun up against the Plexiglas, aimed at the back of Deputy Perrigos head, closed his eyes and pulled the trigger. When asked why he shot Deputy Perrigo, defendant initially candidly stated, so that they could escape.

Together, the physical and circumstantial evidence, the testimony of Deputy Pitts, and defendants own confession established that defendant obtained Deputy Perrigos backup handgun by kicking the front seat until his fanny pack fell to the floor of the patrol car, then pulling the fanny pack through the opening between the floor of the vehicle and the bottom of the Plexiglas safety barrier and retrieving the gun from within, all while still handcuffed. Defendant then secreted the gun on the seat behind him, waited until Deputy Perrigo got back into the patrol unit, waited until they had driven two miles from the substation and were on a relatively secluded section of the highway with no houses insight, then removed the weapon from its hidden location and intentionally shot Deputy Perrigo in the back of the head by surprise, with no opportunity [for the officer] to resist or defend himself (People v. Hillhouse, supra, 27 Cal.4th at p. 501) for the admitted purpose of escaping, which purpose was accomplished.

Several decisions of this court have recognized that waiting for an opportune time to launch a surprise attack from the backseat of a vehicle against the driver or front seat passenger can constitute lying in wait. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 119-120; People v. Combs (2004) 34 Cal.4th 821, 853; Morales, supra, 48 Cal.3d at p. 554.) We conclude the evidence in this record is sufficient to support all of the requisite elements of the lying-in-wait special-circumstance finding.

D. Penalty Phase Issues

1. Challenges to Constitutionality of Death Penalty Statute

Defendant asserts various grounds in support of his claim that the California death penalty statute is unconstitutional. He acknowledges this court has previously rejected each of them, but raises them here in order to preserve the claims in federal court.

The claim that section 190.3, factor (a), which allows the jury to consider [t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1, is unconstitutionally vague and overbroad has been rejected by the high court in Tuilaepa v. California (1994) 512 U.S. 967, 975-976, and repeatedly rejected by this court. (See, e.g., People v. Harris (2005) 37 Cal.4th 310, 365; People v. Stitely (2005) 35 Cal.4th 514, 574; Maury, supra, 30 Cal.4th at p. 439; People v.Lewis (2001) 26 Cal.4th 334, 394; Jenkins, supra, 22 Cal.4th at pp. 1050-1053.)

Furthermore, [t]he [death penalty] statute is not invalid for failing to require (1) written findings or unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 126.) And except for prior violent crimes evidence and prior felony convictions under section 190.3, factors (b) and (c), the court need not instruct regarding a burden of proof, or instruct the jury that there is no burden of proof at the penalty phase. (People v.Box (2000) 23 Cal.4th 1153, 1216; People v. Carpenter, supra, 15 Cal.4th at pp. 417-418.)

Moreover, there is no requirement that Californias death penalty sentencing scheme provide for intercase proportionality review. (People v. Sapp (2003) 31 Cal.4th 240, 317.) And since capital defendants are not similarly situated to noncapital defendants, the death penalty law does not violate equal protection by denying capital defendants certain procedural rights given to noncapital defendants. (People v.Johnson (1992) 3 Cal.4th 1183, 1242-1243; People v.Allen (1986) 42 Cal.3d 1222, 1286-1287.) Hence, the jury may consider unadjudicated offenses under section 190.3, factor (b) as aggravating factors without violating the defendants rights to trial, confrontation, an impartial and unanimous jury, due process, or a reliable penalty determination. (People v. Sapp, supra, 31 Cal.4th at p. 316; People v. Bolden (2002) 29 Cal.4th 515, 566.)

Nor does the use of adjectives such as extreme in section 190.3, factors (d) and (g), or substantial in section 190.3, factor (g), serve as an improper barrier to the consideration of mitigating evidence. (People v. Visciotti (1992) 2 Cal.4th 1, 73-75 [extreme as used in  190.3, factor (g)]; People v. Adcox (1988) 47 Cal.3d 207, 270 [substantial as used in  190.3, factor (g)].)

In a supplemental brief, defendant claims the penalty phase instructions unconstitutionally failed to identify which circumstances were aggravating and which were mitigating. The claim is unmeritorious, having been repeatedly rejected by this court. (See, e.g., People v. Manriquez (2006) 37 Cal.4th 547, 590.) Indeed, defendant concedes the point and even quotes from a decision to that effect (People v. Morrison (2004) 34 Cal.4th 698, 730). He nonetheless urges us to part company with those decisions in his case because here, according to defendant, a portion of one jurors notes, made part of the augmented clerks transcript on appeal, reflects that the juror did aggravate[] his sentence upon the basis of what were, as a matter of state law, mitigating factors, and did so believing that the State as represented by the trial court [through the giving of CALJIC No. 8.85] had identified them as potentially aggravating factors supporting a sentence of death. Fundamentally, however, the incomplete and inconclusive portions of a jurors notes on which defendant would have us rely cannot serve to impeach the jurys verdict. (Evid. Code,  1150, subd. (a); People v. Carter (2003) 30 Cal.4th 1166, 1218 [ 1150, subd. (a) renders inadmissible any evidence concerning the mental processes by which a verdict is determined.].)

Finally, defendants claims that the high courts decisions in Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466, apply to Californias death penalty sentencing scheme have been rejected by this court. (People v.Smith (2003) 30 Cal.4th 581, 642.) Nor is the statutory scheme so flawed that any imposition of the death penalty in this state would violate  international norms of humanity and decency.  (People v. Harris, supra, 37 Cal.4th at p. 366; People v. Ghent (1987) 43 Cal.3d 739, 778-779.)

2. Admission of Victim Impact Evidence

Defendant contends the trial court erred by permitting the prosecution to present victim impact evidence at the penalty phase. There was no error in that regard. The introduction of victim impact evidence has been upheld in many cases. Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under section 190.3, factor (a). (People v.Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) The federal Constitution bars victim impact evidence only if it is so unduly prejudicial as to render the trial fundamentally unfair. (Id. at p. 1056, quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.)

The victim impact evidence introduced in this case came well within permissible limits, and was typical of the victim impact evidence this court routinely permits. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 444 [family members speaking of their love of the victims, how they missed the victims in their lives, photographs of victims while still alive].)

Defendant also claims he did not receive adequate notice of the victim impact evidence that would be introduced at the penalty phase. The claim is specious. The Perrigo family witnesses were placed on the prosecution witness lists, the defense was free to interview them, and trial counsel expressly acknowledged for the record that the defense received very reasonable notice of their planned testimony. Nor does the record substantiate defendants claim that the testimony of Deputy Perrigos widow constituted essentially an unbroken narrative. Her testimony proceeded through questioning and answers, and trial counsel readily conceded he had opportunities to object but did not do so for obvious tactical reasons. Contrary to defendants assertions, we find nothing improper in Ms. Perrigos testimony, and nothing that would have served to unduly inflame the jury.

3. Admission of Drunken Prowling Incident

Defendant claims his penalty verdict was prejudiced by the admission of evidence of the July 7, 1991 incident that led to his arrest for public intoxication on that same date. On this occasion defendant, who appeared drunk, began prowling around a mobilehome in McArthur at which two teenage girls were babysitting a nine-month-old infant. Defendants questions frightened the girls, who retreated into the home. Defendant then pressed his face against the kitchen window, further scaring the girls, who began crying. One girl called her father who was nearby; upon his arrival he saw defendant attempting to open a window to gain access to the home. He chased defendant half a block before subduing him, and was kicked by defendant before police arrived and made the arrest.

Defendant first contends Deputy Dikes should not have been permitted to testify that at the time of this incident, he (defendant) threatened the deputy by stating that when he got out of jail he would obtain a gun and shoot the deputy in the back of the head. As already noted (ante, p. 38), Deputy Dikess testimony constituted evidence of a prior express threat to use force or violence, and was therefore properly admitted at the penalty phase as a factor in aggravation under section 190.3, factor (b).

Defendant further contends there was nothing about the prowling incident itself that rendered testimony regarding it admissible in the Peoples case in aggravation at the penalty phase, and hence such testimony was erroneously admitted. We disagree.

[W]hether a particular instance of criminal activity involved . . . the express or implied threat to use force or violence ( 190.3, factor (b)) can only be determined by looking to the facts of the particular case. (People v. Mason (1991) 52 Cal.3d 909, 955 (Mason).)

The facts established were that defendant tried to enter a mobilehome, knowing it was occupied by two minor girls. He peered in the window, and did not leave even when one of the girls screamed in fear. Instead, he tried to gain access into the residence by attempting to open a window. He fled only when confronted by the girls returning father, who chased him one-half block before subduing him, and whom defendant was fighting with and kicked before police arrived and arrested defendant.

The prosecutor argued that defendants conduct, separate and apart from his subsequent threat to shoot Deputy Dikes upon being arrested, contained an implied threat of violence, given that defendant knew he was attempting to enter an occupied residence in which the young occupants had seen him, become frightened, and started screaming. The trial court agreed in ruling the evidence admissible: And I think that the Mason case basically discusses the that a burglary per se, just a straight burglary which involves no requirement of the presence of any other human being, that that by itself would not be sufficient to raise this issue. And I dont dispute that at all. [] But because of the fact that not only the two girls, but more importantly the father who is an adult who presumably . . . [after being called home by the girls] was looking to confront the individual who was prowling or was around the house, the likelihood of there being that confrontation and the likelihood of that implied threat of violence to me is sufficiently established.

We agree with the trial courts ruling. The facts surrounding the July 1991 prowling incident support the finding of an implied threat of violence within the meaning of section 190.3, factor (b). (See People v. Farnam (2002) 28 Cal.4th 107, 176.) The evidence was therefore properly admitted in the Peoples case in aggravation of penalty.

4. Refusal to Admit Evidence of Police Brutality

Defendant argues the trial court erred by excluding from his case in mitigation of penalty evidence he sought to develop through the testimony of his mother and his defense expert, Dr. Jose LaCalle, to the effect that, as a boy, he had been mistreated by local police in his hometown of Antiguo Taumin in Mexico, and that the reputation of the police among the people of that town was bad. We do not read the record as reflecting that the trial court imposed severe restrictions or limitations on such testimony, as defendant would have us conclude. Instead, we find the court was simply and properly sustaining prosecution objections to specific defects in the evidence offered by the defense.

With regard to the first complained-of evidentiary ruling, defendants mother testified that when defendant was 14 years old he was taken away in handcuffs by the Mexican police and held for several days. When he was returned home, his head was shaved and he had been badly beaten. Although she claimed defendant had been beaten with a rifle and a bat, she also revealed she had no personal knowledge of such facts. Accordingly, the court granted the prosecutions motion to strike the references in her testimony to defendant having been beaten with a rifle and a bat, and the jury was instructed to disregard them. The trial court did not, however, as defendant here argues, exclude all evidence in connection with the testimony about this incident through which he sought to show that he had been brutalized by the Mexican police. The court expressly denied the prosecutors motion to the extent it sought to strike the witnesss testimony about [defendants] being beaten by the Mexican police.

With regard to the second complained-of ruling, the trial court let stand defendants mothers testimony that the people in defendants hometown of Antiguo Taumin in Mexico are generally afraid of the police. However, when she was further asked on direct examination why the people of Antiguo Taumin are afraid of the police, the trial court sustained the prosecutions objection, explaining, We [would] get into too many collateral matters with that subject. This ruling too was not in error, as the question sought to elicit an opinion from the witness on matters well beyond her personal knowledge.

Finally, defendant argues the trial court erroneously prevented him from questioning his expert witness, Dr, LaCalle, on the impact of police brutality on his upbringing as a youth in Antiguo Taumin. Here too, there was no such blanket restriction on the formulation of the defense.

The defense was permitted to ask Dr. LaCalle the following hypothetical question, without objection or restriction: Assuming the hypothetical question of a twenty-three year-old man of Mexican origin, who has been brutalized by the police in Mexico at an early age, and who was intoxicated at the time of his arrest and handled roughly by the arresting officer and finds a gun and uses it. What is your professional opinion about why he reacted as he did in shooting the officer? Dr. LaCalle gave his opinion that defendant made a primal response, a reaction exhibiting anger and hostility, not to the arresting officer specifically, but to the circumstances of police brutality having been suffered over the years.

Defendant argues he should have been permitted to incorporate the details from his mothers testimony noted above specifically, that he had been beaten with a rifle and bat into the hypothetical question directed to his expert witness. But as already noted, there was no competent evidence introduced to establish those details. Defendant was, however, permitted to characterize his treatment as a youth at the hands of the Mexican police in Antiguo Taumin as that of having been brutalized. Similarly, he was not permitted to include in the hypothetical question a reference that he grew up in an environment where the police are feared because of their frequent violent methods, again, because defendants mother could not testify to such facts from her personal knowledge, and hence there was no foundational support for allowing the question to be so worded. This ruling was not in error. Nor did the trial court err in rejecting defendants further argument that his mothers testimony about the feelings of the people of Antiguo Taumin toward the Mexican police, or the incorporation of that matter into the hypothetical question to Dr. LaCalle, should have been permitted under the reputation exception to the hearsay rule. (See Evid. Code,  786, 1100, 1101.) The hearsay exception established in those Evidence Code sections fundamentally pertains to proof of the character of aperson through external evidence, not the character of an entire police force.

5. Refusal to Grant Penalty Phase Continuance

Defendant contends he was prejudiced by the trial courts denial of his motion for a continuance during the penalty phase under somewhat unusual circumstances. His expert, Dr. LaCalle, was arrested during the trial on an unrelated matter; cruelty to animals arising from certain practices he utilized (electrocution) to kill chinchillas that he raised on his ranch for their pelts, an endeavor presumably unconnected to his occupation as a psychologist. Defendant argues that the arrest and publicity surrounding his expert witnesss practice of killing chinchillas by electrocution diminished the effectiveness of his expert witness, and hence the requested continuance should have been granted to afford him an opportunity to obtain a new untainted expert.

When a newspaper article about Dr. LaCalles troubles surfaced, defense counsel became concerned that it would destroy his credibility as an expert witness and prejudice the jury. Defense counsel therefore proposed three potential actions in response to the situation: (1) declare a mistrial, or give the defense a continuance to substitute a different psychologist, (2) grant a continuance until the effect of the article dissipates, or (3) bring the jurors in one at a time and determine how many people have read it, and if so, do they say that its prejudicial, [that] they cant be fair.

The trial court and parties opted for the third approach. All 12 jurors and two alternates were individually questioned about whether they had seen the article or any other press reports about the chinchilla affair, and whether they were aware of the name or identity of the person to whom the article referred. Eight of the 14 jurors had not seen the article or heard any media reports about the chinchilla story. Of the six who indicated some exposure to the story, only one, Juror No. 1633, reported that she had seen the article and had been exposed to radio and television reports about the incident. She indicated, however, that she had formed no opinion about the chinchilla rancher, and stated, upon further questioning, that [she] would take him as any other witness thats been on the stand, at face value and interpret what they have to say. I dont think what he does for what [he] does for a living would apparently has caused this ruckus would make me believe or disbelieve anything he said.

Following the initial voir dire of the jurors on the chinchilla story, the trial court made the following ruling: Okay. All right. The Court concludes based on the responses from the jurors that first, there were very few even aware of it. [] And second, the one who really seemed to have acquired the most in the way of information who was Number 1663 seemed to me very frankly and honestly to say that its a subject matter in which would not concern her one way or the other. And that she would be quite capable of properly evaluating the evidence given by that person, same as anyone else. [] So the Court then makes the finding that there is not a basis on which either a mistrial should be declared, a new jury impaneled or other remedy taken concerning our chinchilla growing witness.

Each of the jurors was then admonished not to have any conversations about the chinchilla case, and not to read any newspaper articles, watch television stories, or listen to radio reports concerning that matter.

The day following the trial courts ruling, defense counsel renewed the defense request for a continuance based upon escalating publicity or media coverage of Dr. LaCalles current criminal problems. The court forthrightly acknowledged that the publicity on this thing being a local issue is somewhat profound, but if that publicity is not something that is affecting our jury, if they are simply not aware of it, or to the extent theyre aware of it as one indicated yesterday that she or others can nevertheless proceed in an objective fashion, its a its a problem that really isnt a problem.

Thereafter, each juror was once again brought into the courtroom and individually voir dired as to whether he or she had seen any additional news or media stories about the chinchilla affair since the day before. Each juror reported that he or she had not come in contact with any further media stories about the matter. The trial court then denied the renewed motion for a continuance.

The determination whether to grant a motion for a continuance rests within the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) We find no abuse of such discretion here, as it was demonstrated that there was no substantial likelihood that any of the jurors who became aware that publicity existed, were actually biased, that is, unable to put aside [their] impressions or opinions based upon the extrajudicial information [they] received and render a verdict based solely upon the evidence received at trial.  (Jenkins, supra, 22 Cal.4th at p. 1049, quoting People v. Nesler (1997) 16 Cal.4th 561, 583.)

6. Factor (a) and Racial Bias

Defendant argues that because factor (a) permits the jury at the penalty phase to consider the circumstances of the crime, but fails to provide guidance as to the scope of the factor, the jurors were impermissibly permitted to consider their own racial biases in deciding whether to return a death judgment against him. Specifically, defendant does not maintain that the vagueness of factor (a) renders the jurys decision unconstitutional. Instead, [his] argument is that because factor (a) is open-ended, when a jury bases its decision on racial grounds, as was very likely the case here, the resulting sentence is unconstitutional. In support of his supposition that it was very likely the jury in his case base[d] its decision on racial grounds, he points to the fact that Deputy Perrigo was White, whereas he is a member of a minority race (Hispanic).

Defendant proposed no instructions in the trial court along the lines he now suggests should have been given to combat what he perceives was a likelihood of racial prejudice in the proceedings below. Nor does he specify on appeal exactly what, in the way of further guidance, should have been delivered to the jury through supplemental instructions directly concerning factor (a).

Factor (a), which allows the jury to consider [t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1, has been found by the high court not to violate the Fifth, Sixth, Eighth, or Fourteenth Amendments to the United States Constitution by allowing arbitrary imposition of the death penalty. (Tuilaepa v. California, supra, 512 U.S. at pp. 975-976.) This court likewise has repeatedly found that factor (a) is neither impermissibly vague nor overbroad, and does not result in an arbitrary and capricious penalty determination. (People v. Harris, supra, 37 Cal.4th at p. 365; People v. Stitely, supra, 35 Cal.4th at p. 574; Maury, supra, 30 Cal.4th at p. 439; People v.Lewis, supra, 26 Cal.4th at p. 394; Jenkins, supra, 22 Cal.4th at pp. 1050-1053 [factor (a) provides adequate guidance to a jury in capital sentencing].)

We perceive no basis on which to reverse the judgment based on defendants largely speculative claim that further guidance in the way of supplemental instructions should have been provided to the jury with specific regard to factor (a).

7. Violations of International Law

Contrary to defendants contention, a sentence of death that complies with state and federal constitutional and statutory requirements has been held by this court not to violate international law. (People v.Tafoya (2007) 42 Cal.4th 147, 199; People v. Hillhouse, supra, 27 Cal.4th at p. 511.)

8. Cumulative Prejudice

Defendant observes that, [t]his court has recognized that, at a capital penalty trial, lingering doubts about guilt constitute a proper factor in mitigation of the penalty. (People v. Hawkins (1995) 10 Cal.4th 920, 966-968.) He then urges that, By definition, it takes less to raise a lingering doubt than it takes to raise a reasonable doubt. Guilt phase errors which might be found harmless under traditional guilt phase tests of prejudice might nonetheless have the effect of negating a lingering doubt as to intent, intoxication, etc. Such errors may prejudicially impact the penalty determination even though they may be harmless as to the guilt verdict. [] Accordingly, this Court must make a separate assessment of the impact of each guilt phase error, and of the cumulative impact of all guilt phase errors, on the penalty determination.

We have, however, found no appreciable error at the guilt or penalty phases of defendants trial. Accordingly, we have no occasion here to make a separate assessment of the impact of each guilt phase error, nor of the cumulative impact of all guilt phase errors on the penalty determination reached in this case.

Defendant argues further that, Where the evidence, though sufficient to sustain the verdict, is extremely close, any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial. (Italics added.) Once again, we have found no appreciable error at the guilt or penalty phases of defendants trial, much less substantial error, nor do we share defendants view that the evidence in this case within reason can be characterized as extremely close.^[1]

III. Conclusion

The judgment is affirmed.

BAXTER, J.

WE CONCUR:

GEORGE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cruz

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Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

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Opinion No. S042224

Date Filed: July 24, 2008

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Court: Superior

County: Sonoma

Judge: James E. Kleaver

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Attorneys for Appellant:

Michael R. Snedeker and Lisa R. Short, under appointments by the Supreme Court, for Defendant and Appellant.

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Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Ross C. Moody and Alice B. Lustre, Deputy Attorney General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael R. Snedeker

Snedeker, Smith & Short

4110 SE Hawthorne Blvd.

Portland, OR 97214-5246

(503) 232-6547

Alice B. Lustre

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-1376

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] In 2004, the International Court of Justice ruled that the United States had violated the Vienna Convention in numerous cases by failing to provide arrested foreign nationals access to consular officials. (Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12.) Defendant, a Mexican national, is one such individual named in that case. Defendant has raised a claim pertaining to the matter in a habeas corpus petition presently pending in this court. (In re Cruz, S129510.) The claim, involving matters outside this appellate record, is properly raised on habeas corpus and will be addressed and resolved in that proceeding.