SUPREME COURT COpy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, CAPITAL CASE Plaintiff and Respondent, S085348 v. GABRIEL CASTANEDA, Defendant and Appellant. San Bernardino County Superior Court No. FWV15543 The Honorable Mary E. Fuller, Judge RESPONDENT'S BRIEF DANE R. GILLETIE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General HOLLY WILKENS Deputy Attorney General MARVIN E. MIZELL Deputy Attorney General State Bar No. 190786 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3040 Fax: (619) 645-2271 Email: [email protected] Attorneys for Plaintiff and Respondent TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 GUILT PHASE STATEMENT OF FACTS 6 Prosecution Case-In-Chief 6 Events Leading Up To Castaneda's Murder Of Colleen Kennedy 6 The Morning Of Monday March 30, 1998, When Castaneda Murdered Colleen Kennedy 10 The Investigation Into The Murder Of Colleen Kennedy On March 30, 1998 13 The Autopsy On April 1, 1998 16 The Montclair Police Department Calls For Assistance From The Sheriff's Department And Other Law Enforcement Agencies To Investigate Colleen Kennedy's Murder In April 1998 19 After More Investigation, Castaneda Is Arrested In May 1998 For Murdering Colleen Kennedy 20 Further Evidence Of Castaneda's Guilt After May 1998 25 Defense 26 Prosecution Rebuttal 28 PENALTY PHASE STATEMENT OF FACTS 29 Defense 29 Psychological And Family History Evidence 29 1 TABLE OF CONTENTS (continued) Page Testimony From Castaneda's Associates, Friends And Family 36 Prosecution 40 Psychological Evidence 41 Castaneda's Prior Criminal Activity Involving His Use Or Attempted Use Of Force Or Violence, Or His Express Or Implied Threat To Use Force Or Violence 43 Castaneda, As A Teenager, Twice Hits A Rival Gang Member With A Brick 43 Castaneda's Violence Against Ibarra In 1989 And 1990 43 Shank And Syringe Found In Castaneda's Jail Cell On June 6, 1999 45 Castaneda's Felony Convictions 47 Anned Robbery In 1991 47 Burglaries In 1980 And 1987 48 GUILT PHASE ARGUMENTS 49 I. CASTANEDA'S RIGHTS TO PRESENCE WERE NOT VIOLATED BY HIS ABSENCE FROM TWO BENCH CONFERENCES DURING JURY VOIR DIRE 49 A. Castaneda's Right To Presence Was Not Violated Under Federal Constitutional Law 53 11 TABLE OF CONTENTS (continued) Page B. Castaneda's Right To Presence Was Not Violated Under State Constitutional And Statutory Law 59 II. THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY ON SECOND DEGREE MURDER AS A LESSER INCLUDED OFFENSE OF FmST DEGREE MURDER 60 III. THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER 69 A. Any Error In Failing To Instruct On Voluntary Manslaughter Was Invited Error 69 B. The Trial Court Did Not Err Because There Was No Substantial Evidence Of Voluntary Manslaughter 71 IV. IF THE TRIAL COURT ERRED BY GIVING THE JURY AN IMPLIED MALICE INSTRUCTION, THE ERROR WAS HARMLESS UNDER ANY STANDARD BASED ON OTHER INSTRUCTIONS AND THE OVERWHELMING EVIDENCE OF EXPRESS MALICE CONSTITUTING INTENT' TO KILL FOR FIRST DEGREE MURDER 75 V. THE EVIDENCE WAS SUBSTANTIAL TO SUPPORT THE KIDNAPPING CONVICTION AND SPECIAL CIRCUMSTANCE TRUE FINDING 81 VI. THE KIDNAPPING CONVICTION AND SPECIAL CmCUMSTANCE SHOULD BE 111 TABLE OF CONTENTS (continued) Page REVERSED BECAUSE OF THE GIVING OF AN INAPPLICABLE DEFINITION OF MOVEMENT FOR A SUBSTANTIAL DISTANCE 86 VII. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON FALSE IlVIPRISONMENT AS A LESSER INCLUDED OFFENSE OF KIDNAPPING, BUT DEFENSE COUNSEL INVITED THE ERROR 89 VIII. SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S BURGLARY CONVICTION AND THE BURGLARY SPECIAL CIRCUMSTANCE TRUE FINDING 92 IX. SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S SODOMY CONVICTION AND THE SODOMY SPECIAL CIRCUMSTANCE TRUE FINDING 97 X. SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S ROBBERY CONVICTION AND THE ROBBERY SPECIAL CIRCUMSTANCE TRUE FINDING 104 XI. THE EVIDENCE DID NOT SUPPORT INSTRUCTION OF THE JURY ON GRAND THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY 110 XII. SUBSTANTIAL EVIDENCE SUPPORTS THE TRUE FINDINGS TO THE SPECIAL CIRCUMSTANCE ALLEGATIONS BECAUSE CASTANEDA'S COMMISSION OF THE FELONIES W AS NOT MEREL Y INCIDENTAL TO THE MURDER 116 IV TABLE OF CONTENTS (continued) Page XIII. THE PROSECUTOR DID NOT COMMIT GMFFINERRORIN ARGUMENT DURING THE GUILT AND PENALTY PHASES OF TRIAL, AND DEFENSE COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE BY NOT OBJECTING ON THAT BASIS DURING THOSE ARGUMENTS 120 PENALTY PHASE ARGUMENTS 126 XIV. THE JURY PRO PERLY DETERMINED CASTANEDA SHOULD RECEIVE THE DEATH PENALTY BASED ON THE EVIDENCE UNDERLYING ALL OF THE ALLEGED SPECIAL CIRCUMSTANCES, BECAUSE THAT EVIDENCE CONSTITUTED THE CIRCUMSTANCES OF THE CRIME 126 xv. THE TRIAL COURT PROPERLY DID NOT ANSWER THE JURY'S QUESTION ON WHAT WOULD HAPPEN IF IT COULD NOT REACH AN UNANIMOUS DECISION AS TO CASTANEDA'S PENALTY 129 XVI. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO EXCLUDE EXPERT TESTIMONY REGARDING GENETICS AND AN EXHIBIT REGARDING "GANG MEMBER DEPRESSION" DURING THE PENALTY PHASE 135 A. The Trial Court Properly Limited Dr. Morales' Expert Testimony 136 B. The Trial Court Properly Excluded Exhibit 61 Regarding "Gang Member Depression" 143 v TABLE OF CONTENTS (continued) Page XVII. CAST ANEDA'S DEATH SENTENCE DOES NOT CONSTITUTE CRUEL OR UNUSUAL PUNISHMENT 151 XVIII. DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S EVIDENCE ABOUT CASTANEDA'S NON-VIOLENT CUSTODY ESCAPES 154 XIX. DEFENSE COUNSEL WAS NOT INEFFECTIVE BY NOT REQUESTING MODIFICATION OF CALJlC NO. 8.85 TO DELETE INAPPLICABLE MITIGATING FACTORS, AND BY NOT OBJECTING TO THE PROSECUTOR'S ARGUMENT REGARDING INAPPLICABLE MITIGATING FACTORS 161 A. Defense Counsel Was Not Ineffective For Not Requesting Deletion Of Inapplicable Mitigating Factors From CALJIC No. 8.85 164 B. Defense Counsel For Was Not Ineffective For Not Objecting To The Prosecutor's Argument Regarding Inapplicable Factors In Mitigation From CALJIC No. 8.85 165 XX. CALJIC NO. 8.88 IS CONSTITUTIONAL AND ACCURATEL Y DESCRIBED TO THE JURY HOW IT WAS TO WEIGH THE AGGRAVATING AND MITIGATING FACTORS 167 XXI. THE TRIAL COURT HAD NO DUTY TO INSTRUCT THE JURY ON THE MEANING VI TABLE OF CONTENTS (continued) Page OF LIFE WITHOUT THE POSSIBILITY OF PAROLE 168 XXII. ASSUMING CASTANEDA HAD A RIGHT TO BE PRESENT DURING DISCUSSION OF THE PENALTY PHASE INSTRUCTIONS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AND STATE STATUTORY LAW, CASTANEDA VALIDLY WAIVED THAT RIGHT 169 A. Castaneda's Right To Presence Was Not Violated Under The Sixth And Fourteenth Amendments 170 B. Castaneda's Right To Presence Was Not Violated Under State Statutory Law Or The Error Was Harmless 174 XXIII. ALL OF CASTANEDA'S FREQUENTLY RAISED AND REJECTED CHALLENGES TO CALIFORNIA'S DEATH PENALTY LAW SHOULD BE REJECTED 176 CONCLUSION 178 CERTIFICATE OF COMPLIANCE Vll TABLE OF AUTHORITIES Cases Page Almendarez-Torres v. United States (1998) 523 U.S. 224 118 S.Ct. 1219 140 L.Ed.2d 350 4 Apprendi v. New Jersey (2000) 530 U.S. 466 120 S.Ct. 2348 147 L.Ed.2d 435 4, 128, 129 Atkins v. Virginia (2002) 536 U.S. 304 122 S.Ct. 2242 153 L.Ed.2d 335 152 Beck v. Alabama (1980) 447 U.S. 625 100 S.Ct. 2382 65 L.Ed.2d 392 116 Blakely v. Washington (2004) 542 U.S. 296 124 S.Ct. 2531 159 L.Ed.2d 403 4, 128, 129 Brown v. Sanders (2006) 546 U.S. 212 126 S.Ct. 884 163 L.Ed.2d 723 127, 128 Chapman v. California (1967) 386 U.S. 18 87 S.Ct. 824 17 L.Ed.2d 705 5, 56, 68, 115, 160 V1l1 TABLE OF AUTHORITIES (continued) Page Cunningham v. California (2007) - U.S. - 127 S.Ct. 856 4, 129 Frye v. United States (D.C. Cir. 1923) 293 F. 1013 149 Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298 136, 144 Griffin v. California (1965) 380 U.S. 609 85 S.Ct. 1229 14 L.Ed.2d 106 120, 121, 123-125 Illinois v. Allen (1970) 397 U.S. 337 90 S.Ct. 1057 25 L.Ed.2d 353 53 In re Hawthorne, Jr. (2005) 35 Ca1.4th 40 152 In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558 136 In re William M. (1970) 3 Ca1.3d 16 92 Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 136 Jones v. United States (1999) 527 U.S. 373 119 S.Ct. 2090 144 L.Ed.2d 370 130 IX TABLE OF AUTHORITIES (continued) Page Kentucky v. Stincer (1987) 482 U.S. 730 107 S.Ct. 2658 96 L.Ed. 2d 631 54, 171 Kotla v. Regents of University ofCalifornia (2004) 115 Cal.App.4th 283 136 Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516 136 Lynch v. Superior Court ofLos Angeles County (1970) 1 Ca1.3d 910 92 Morris v. Woodford (9th Cir. 2001) 273 F.3d 826 132, 133 People v. Ashmus (1991) 54 Ca1.3d 932 169 People v. Barton (1995) 12 Ca1.4th 186 69, 90, 111 People v. Berry (1976) 18 Ca1.3d 509 73, 74 People v. Bittaker (1989) 48 Ca1.3d 1046 126 People v. Blair (2005) 36 Ca1.4th 686 63,67, 129 People v. Bolden (2002) 29 Ca1.4th 515 107, 109, 114, 117, 120, 149 People v. Bolin (1998) 18 CaL4th 297 160, 164 x TABLE OF AUTHORITIES (continued) Page People v. Bonin (1988) 46 Ca1.3d 659 169 People v. Bonin (1989) 47 Ca1.3d 808 117 People v. Box (2000) 23 Ca1.4th 1153 164 People v. Boyd (1985) 38 CaL3d 762 155, 159 People v. Boyette (2003) 29 CaL4th 381 123 People v.