Supreme Court Copy in the Supreme Court of the State of California

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. DEATH PENALTY CASE RONALD BRUCE MENDOZA, Defendant and Appellant. SUPREME COURT FILED Los Angeles County Superior Court No. KA032 1 17 The Honorable Alfonso M. Bazan, Judge - 1 2008 Frederick K. ;)h~rtch Clerk RESPONDENT'S BRIEF - - -- .- Deputy- --:-.r. -& EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General SHARLENE A. HONNAKA Deputy Attorney General JOHN R. GOREY Deputy Attorney General KAREN BISSONNETTE Deputy Attorney General State Bar No. 129981 300 South Spring Street, Suite 1702 Los Angeles, CA 9001 3 Telephone: (2 13) 620-6426 Fax: (2 13) 897-6496 Email: [email protected] Attorneys for Respondent TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 STATEMENT OF FACTS 3 I. Guilt Phase Evidence 3 A. Prosecution's Case-In-Chief 3 1. Significant Events Prior To The Murder Of Officer Fraembs 3 a. Appellant Is Released On Parole On Certain Terms And Conditions 3 b. Appellant Purchases A Haskell .45-Caliber Handgun "To Take Care Of Business" 4 c. Jason Meyers Buys .45-Caliber Bullets For The Firearm, As Appellant Did Not Have Proper Identification 5 d. Appellant's Relationship With Johanna Flores 6 e 2. The Murder Of Officer Fraembs And The Events Immediately Preceding The Murder 8 3. The Police Respond To The Crime Scene 14 4. Significant Events Preceding And Following The Murder 17 a. The Observations Of Harry Lukens 17 b. Flores's Activities 18 c. Meyers, Hernandez And Arambula 2 1 d. Appellant's Pager 2 2 TABLE OF CONTENTS (continued) Page e. The Search Of The Grier Street Residence 23 f. The Forensic Evidence 25 g. The Autopsy 27 h. Appellant Sells The Murder Weapon To Joseph Silva And Tells Silva, "I Killed A Cop With That Gun" 28 i. Appellant's Telephone Conversations 32 B. Defense Evidence 37 11. Penalty Phase Evidence 37 A. Aggravating Evidence 1. The Prior Violent Act 2. Victim Impact Evidence 40 B. Mitigating Evidence 44 ARGUMENT 47 I.. THE TRIAL COURT WAS NOT AUTHORIZED TO STRIKE THE LYING-IN- WAIT SPECIAL CIRCUMSTANCE, THEREFORE, THE JUDGMENT, ABSTRACT OF JUDGMENT, AND COMMITMENT ORDER SHOULD BE MODIFIED TO REFLECT IT; FURTHERMORE, SUBSTANTIAL EVIDENCE SUPPORTED BOTH THE LYING-IN-WAIT THEORY OF FIRST DEGREE MURDER AND THE LYING- IN-WAIT SPECIAL CIRCUMSTANCE, TABLE OF CONTENTS (continued) Page THEREFORE THE JURY'S VERDICTS AND FINDINGS SHOULD BE AFFIRMED A. The Relevant Trial Proceedings B. The Trial Court Lacked The Authority To Strike The Lying-In-Wait Special Circumstance; Therefore, This Court Should Order The'Judgment And The Abstract Of Judgment Modified To Reflect This Special Circumstance 54 C. There Was Substantial Evidence To Support A Jury Verdict Of First Degree Murder Based On A Lying-In-Wait Theory, And Also To Support A True Finding On The Lying-In-Wait Special Circumstance; Therefore, The Trial Court's Instructions To The Jury Were Properly Given 56 1. The Applicable Law 57 2. There Was Substantial Evidence To Support The Jury's Verdicts And Findings, And The Court's Instructions, On Lyng-In-Wait 59 a. The Evidence Showed A Substantial Period Of Watching And Waiting 59 b. The Evidence Showed Concealment Of Purpose 63 c. The Evidence Showed A Surprise Attack On The Unsuspecting Officer From A Position Of Advantage 64 3. No Reversal Is Required Assuming Any Deficiencies In The Lying-In-Wait Theory Of First Degree Murder, Or The Lying-In-Wait Special Circumstance 6 5 TABLE OF CONTENTS (continued) Page 4. Conclusion 66 11. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S VERDICT REGARDING THE PREMEDITATED AND DELIBERATE MURDER OF OFFICER FRAEMBS 67 A. The Applicable Law 67 B. There Was Substantial Evidence Of Premeditation And Deliberation In This Case 70 1. Planning Activity 7 1 2. Motive To Kill 72 3. Manner Of Killing 73 111. APPELLANT'S FIRST DEGREE MURDER CONVICTION AND THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE SHOULD NOT BE REVERSED 76 A. The Relevant Law 76 B. Because Both The Theory Of Lyng-In-Wait And The Theory Of Premeditation And Deliberation Were Legally And Factually Supported By The Evidence, The Murder Conviction And The Lying-In-Wait Special Circumstance Should Be Upheld 7 8 IV. THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT THE JURORS THAT THEY HAD TO UNANIMOUSLY AGREE ON THE THEORY OF GUILT FOR FIRST DEGREE MURDER 8 1 TABLE OF CONTENTS (continued) Page V. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL AND TO STRIKE OR DISMISS THE SPECIAL CIRCUMSTANCES OF MURDER OF A PEACE OFFICER AND MURDER TO AVOID ARREST 83 A. The Relevant Trial Proceedings 84 B. The Applicable Law 100 C. Because Officer Fraembs's Actions Were Lawful, The Trial Court Properly Denied Appellant's Section 11 18.1 Motion As To The Special Circumstances Of Murder Of A Peace Officer And Murder To Avoid Arrest 103 VI. THE TRIAL COURT PROPERLY ADMITTED TESTIMONY REGARDING THE THREATS MADE TO WITNESSES FLORES, ARAMBULA, AND SILVA, WHICH WERE RELEVANT TO THE DETERMINATION OF THE WITNESSES' CREDIBILITY, AND PROPERLY EXCLUDED CUMULATIVE AND MINIMALLY PROBATIVE EVIDENCE REGARDING FLORES'S STATEMENT TO APPELLANT SEVERAL WEEKS BEFORE THE SHOOTING 116 A. The Relevant Trial Proceedings 117 B. The Applicable Law 145 C. The Trial Court Properly Admitted Evidence Regarding The Threat Made To Flores By Angel Mendoza 147 TABLE OF CONTENTS (continued) Page D. The Trial Court Properly Admitted Evidence Regarding Threats Made By Third Parties To Arambula And Silva 156 1. The Threat Against Arambula 156 2. The Threat Against Silva 158 E. The Trial Court Properly Excluded The Proffered Testimony Of Jason Meyers Regarding A Threat Purportedly Made Against Appellant By Johanna Flores Several Weeks Before The Shooting 160 F. Any Possible Error In Admitting Evidence Of Threats Made Against Flores, Arambula, And Silva Was Harmless 161 G. Conclusion 170 VII. EVIDENCE CONCERNING APPELLANT'S PAROLE STATUS WAS PROPERLY ADMITTED TO SHOW MOTIVE AND INTENT, APPELLANT NEVER PROFFERED THE EVIDENCE OF HIS PRIOR PAROLE VIOLATION AT TRIAL FOR THE SAME PURPOSE FOR WHICH HE NOW CONTENDS IT SHOULD HAVE BEEN ADMITTED, AND THE TRIAL COURT WAS NOT REQUIRED TO GIVE CALJIC NO. 2.50 SUA SPONTE 171 A. The Relevant Trial Proceedings 171 B. The Trial Court Properly Admitted Evidence Of Appellant's Parole Status To Show Intent And Motive 186 TABLE OF CONTENTS (continued) Page C. Appellant Waived His Claim Regarding Evidence Of His Prior Parole Violation, And That Evidence Was Properly Excluded 194 D. The Trial Court Was Not Required To Give CALJIC No. 2.50 Sua Sponte 195 E. Conclusion 198 VIII. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO. 2.51 199 A. CALJIC No. 2.51 Does Not Allow The Jury To Determine Guilt Based On Motive Alone 200 B. CALJIC No. 2.5 1 Does Not Impermissibly Lessen The Prosecution's Burden Of Proof 202 C. CALJIC No. 2.5 1 Does Not Shift The Burden Of Proof To Imply That Appellant Has To Prove Innocence 203 IX. THE GUILT PHASE INSTRUCTIONS DID NOT IMPERMISSIBLY UNDERMINE OR DILUTE THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT X. THE LYING-IN-WAIT SPECIAL CIRCUMSTANCE ADEQUATELY NARROWS THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY XI. IF A COUNT OR SPECIAL CIRCUMSTANCE IS REDUCED OR VACATED, THE PENALTY OF DEATH DOES NOT NEED TO BE vii TABLE OF CONTENTS (continued) Page REVERSED, GIVEN THE OVERWHELMING AGGRAVATING EVIDENCE PRESENTED AT THE PENALTY PHASE 2 10 XII. CALIFORNIA'S DEATH PENALTY STATUTE DOES NOT VIOLATE THE FEDERAL CONSTITUTION 213 XIII. APPELLANT RECEIVED A FAIR TRIAL AS THERE WAS NO CUMULATIVE PREJUDICE 2 18 CONCLUSION 2 19 CERTIFICATE OF COMPLIANCE . Vlll TABLE OF AUTHORITIES Page Cases Adams v. Williams (1972) 407 U.S. 143 Apprendi v. New Jersey (2000) 530 U.S. 466 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 Blakely v. Washington (2004) 542 U.S. 296 Brown v. Sanders (2006) 546 U.S. 212 California v. Hodari D. (1991) 499 U.S. 621 Clemons v. Mississippi (1990) 494 U.S. 738 Domino v. Superior Court (1982) 129 Cal.App.3d 1000 Florida v. Bostick (1991) 501 U.S. 429 Florida v. Royer (1983) 460 U.S. 491 Furman v. Georgia (1972) 408 U.S. 238 Graham v. Connor (1989) 490 U.S. 386 TABLE OF AUTHORITIES (continued) Page Griffin v. United States (1 99 1) 502 U.S. 46 77,78 Illinois v. Wardlow (2000) 528 U.S. 119 114 In re Christian G. (2007) 153 Cal.App.4th 708 3 In re James D. (1987) 43 Cal.3d 903 In re Tony C. (1978) 21 Cal.3d 888 INS v. Delgado (1 984) 466 U.S. 210 Michigan v. Chesternut (1988) 486 U.S. 567 Pennsylvania v. Mimms (1977) 434 U.S. 106 People v. Adcox (1988) 47 Cal.3d 207 People v. Aguilar (1997) 16 Cal.4t.h 1023 People v. Aguirre (1995) 3 1 Cal.App.4t.h 39 1 People v. Ainsworth (1988) 45 Cal.3d 984 People v. Alcala (1984) 36 Cal.3d 604 TABLE OF AUTHORITIES (continued) Page People v. Allen 1986) 42 Cal.3d 1222 116 People v. Anderson (2001) 25 Cal.4th 543 214 People v. Anderson (1968) 70 Cal.2d 15 67,69, 70 People v. Arias (1996) 13 Cal.4th 92 215 People v. Atchley (1959) 53 Cal.2d 160 People v.

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