SUPRSfvlE COURT lht lIre ~tlpr£lltt~ <1trnxt!tlf flrt ~t.lttt~ n! (£tl.Hfflttfi'll.J:D Hi:" Jf')tH 'f,' F) If<",''!'''O V >;{'f" ~ "Ff;' ['~lf:' ('. f' HN)U:....n . ~ E'S,.. ~ L.L 'S,. ~. l.S.~L '." .S. ;'~. ~ .s:,·s..."T •.. i\l.d~·' ..S">.;.~~.A~ C'astt'-io. S059912 REsrONDEN'PS BRIEF :r.n\1LHn G BEG',\"\ Jr<. /\H(l;~<~: Oenend i)f C ~d; f<>rn;;;i DA.i'T K. GE.LFTTE ~;crdr::r /\.s~!~i:..;tar~t /\tt(~tttcy (;·~:;:.n.c.ra1 A~{::';;I' Ff.'\·~·JJERM/,.\ Fr<":\:"'~':'R Dcp,xty i\ttom(~y (kno:;;ii BF...:\ULL\' ":\. \VL>-ikFb O::THHy .'\ \tomey Ceil:;;':';] SLH;;.; BUl" >';0 j 57316 1] OW'est /\ Strc<::t, Suitt 1!0:::; S;}r~Di r:~:o, C,,\ 921 ~ .... CH F.O. Box 85266 82,;:; Diego, (';\ 92186,.5166 Te!ephonc, (619) 645,229U TABLE OF CONTENTS Page Introduction 1 Statement ofthe Case 1 Statement ofFacts 3 A. Events preceding Mark Walker's death 4 B. Events surrounding Varela's birthday party and the following day 5 C. Events surrounding the murder and the subsequent criminal investigation 13 1. The murder 13 2. The investigation 14 3. The autopsy 15 4. Recovery ofthe murder weapon 16 5. Additional evidence 17 D. Defense 18 E. Penalty phase 18 1. Prosecution 18 2. Defense 19 3. Rebuttal 20 Guilt phase arguments 20 I. Argument I does not raise a claim of error 20 II. The trial court properly denied Montes's Murgia motion to discover prosecution standards governing whether to charge special circumstances 20 A. Standard ofreview 21 B. Analysis 22 III. Montes's claim that there existed invidious discrimination in the decision to seek the death penalty lTIUSt be rejected 27 TABLE OF CONTENTS (continued) Page IV. This court may accept Montes's request to conduct an independent review ofthe in camera hearing on Pitchess materials 3I V. The trial court did not abuse discretion when it declined to sever Montes's trial from co-defendants because a joint trial neither compromised his defense nor resulted in prejudice 32 A. Standard of review 33 B. Procedural history of severance motion 34 C. The trial court properly declined to consider the sealed material 37 D. The trial court did not abuse its discretion when it denied Montes's severance motion 38 VI. Because there was no duty to preserve a blood sample to support a defense that Montes had a detectable amount of methamphetamine in his system when he killed Walker, Montes's due process challenge must be rej ected 39 VII. The trial court properly ordered Montes physically restrained with a shock belt during trial because of recent violent behavior while awaiting trial 43 A. Standard ofreview 43 B. Procedural history governing order for restraints 45 C. Analysis 48 VIII. The trial court properly excused three prospective jurors for cause because their views on capital punishment would have substantially impaired the perfonnance oftheir duties 50 A. Prospective Juror S.G 52 B. Prospective Juror C,J 56 C. Prospective Juror O.G 59 11 TABLE OF CONTENTS (continued) Page IX. The prosecutor did not improperly challenge Afri can- American or Hispanic jurors for a race-based purpose 62 A. Procedural summary 63 B. Standard of review 66 C. Substantial evidence supported the trial court's finding that there existed a non racial basis to exclude the challenged jurors 69 1. African-American prospective jurors 73 a. Prospective Juror D.M 73 b. Prospective Juror L.W 75 c. Prospective Juror K.P 76 d. Prospective Juror W.J 77 e. Prospective Juror I.T 78 f. Prospective Juror P.K 79 2. Hispanic prospective jurors 79 a. Prospective Juror D.C 80 b. Prospective Juror L.c. 81 c. Prospective Juror D.L. 82 d. Prospective Juror G.H 83 X. Claim X is not a claim of error 84 Claims about gang evidence 84 XI. Failure to timely provide the identity ofthe gang expert did not require a continuance or require other remedial action 84 A. Procedural history 85 B. Analysis 86 XII. The trial court properly ruled Sergeant Beard qualified as a gang expert 88 A. Analysis 89 111 TABLE OF CONTENTS (continued) Page XIII. The trial court properly admitted gang evidence 90 A. Procedural history 91 B. The trial court properly admitted the gang evidence 94 XIV. The trial court did not abuse its discretion when it ruled the autopsy photographs admissible 97 A. Relevant proceedings 97 B. The trial court did not abuse its discretion when ruling on the admissibility ofthe autopsy photographs 100 XV. The trial court did not abuse its discretion when it ruled admissible Victor Dominguez's statement to George Varela that he was "riding with a 187," because it served the non-hearsay purpose to explain Varela's subsequent acts, and, was circumstantial evidence that corroborated montes's own statements about the murder 104 XVI. Admission of George Varela's subjective beliefthat Montes killed Walker constituted harmless error 108 XVII. The trial court did not abuse its discretion when it ruled Kim Speck could testify about her reaction to Montes's statements concerning the murder, because it helped explain Speck's subsequent actions 110 A. Background 110 B. Speck's statement did not violate Montes's right to confrontation 114 C. Speck's testimony was not an improper lay opinion 115 D. Speck's testimony was relevant 116 XVIII. The trial court did not abuse its discretion when it excluded irrelevant evidence that co-defendant Gallegos played football with and knew Walker.. .......... 118 IV TABLE OF CONTENTS (continued) Page Claims about the dismissal ofjurors 122 XIX. Montes has not presented a claim of error in argument XIX 122 XX. The trial court did not abuse its discretion when it dismissed Juror No.7 during the guilt phase, because his need to start a new job by a certain date impaired his ability to be fair, and, because he engaged in demonstrated instances of misconduct 122 A. Background concerning Juror No.7 124 B. Initial motion to remove Juror No.7 125 C. Dismissal ofJuror No.7 due to employment issues and misconduct. 126 D. The trial court did not abuse its discretion when it dismissed Juror No.7 129 XXI. The trial court did not abuse its discretion when it discharged alternate Juror No.2 before the penalty phase began, due to her emotional distress and a professed inability to impose the death penalty 13 I XXII. The jury could properly find true the kidnap for robbery and kidnap special circumstances but if not, the error was harmless 133 XXIII. The trial court's failure to limit CALJIC No. 2.15 to theft related offenses does not warrant reversal ofthe murder conviction and special circumstance finding 136 Penalty phase arguments 140 XXIV. Argument XXIV does not raise any claim of error 140 XXV. The trial court had no obligation to conduct an Evidence Code section 402 hearing in order to preview the victim impact testimony 140 XXVI. Argument XXVI does not raise a claim of error 142 XXVII. The trial court properly ruled admissible the victim impact evidence 142 v TABLE OF CONTENTS (continued) Page A. Victim's mother Judith Koahou 143 B. The circumstances ofthe offense 148 C. Passage oftime and frustration with delay 150 D. Comparing Walker's life to others 151 E. The victim-impact videotape 153 1. General legal principles 154 2. Recent caselaw regarding victim-impact videotape " 155 F. Excessive nature ofthe victim-impact evidence 159 G. Cumulative effect ofvictim-impact evidence 161 XXVIII. The trial court properly declined to grant a mistrial based on admission ofvictim-impact evidence 162 XXIX. The trial court properly declined Monte's requested instruction on how the jury should evaluate victim impact evidence 163 XXX. Argument XXX does not state a claim oferror.. 164 XXXI. During the guilt phase closing argument, any reference to matters not in evidence or vouching for the credibility ofwitness Kim Speck's trial testimony by the prosecutor did not result in prejudicial misconduct 164 Penalty phase misconduct 168 XXXII. That a prosecution penalty phase witness mentioned Montes was housed in the maximum security area of the jail did not constitute prejudicial misconduct....... 168 XXXIII. The prosecutor did not commit prejudicial misconduct during the penalty-phase cross- examination 171 A. Questioning Dr. Delis about tests.Performed 172 B. Questions about gangs 175 VI TABLE OF CONTENTS (continued) Page C. Questions suggesting Montes actually killed Walker. 178 XXXIV. The prosecutor did not commit misconduct when he questioned Montes's wife about a letter that had not been previously disclosed to the defense 180 A. Examination of Diana Montes regarding the letter 180 B. Analysis 182 XXXV. The trial court did not abuse its discretion when it denied a mistrial motion based on the fact that the prosecutor failed to provide discovery of a letterwritten by Montes's wife used during penalty- phase cross-examination 185 XXXVI. The prosecutor did not commit prejudicial misconduct during penalty phase closing argument 186 A. Standard ofreview 186 B. Montes's failure to object has forfeited his claim 187 C. The prosecutor did not wrongly appeal to passion and prejudice 188 D. The prosecutor did not improperly dehumanize Montes 190 E. The prosecutor did not commit Boyd error by suggesting the jury consider the effect of Montes's crime upon his own family 192 F. Urging jurors to consider community values and to act as the "conscience ofthe community" did not constitute misconduct 194 G. Comments about Montes's future dangerousness did not constitute misconduct........