P. v. Manzano
Filed 7/13/12 P. v. Manzano CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MATHEW RUBEN MANZANO,
Defendant and Appellant.
D058661
(Super. Ct.
No. FSB049630)
In re MATHEW RUBEN MANZANO on
Habeas Corpus.
D060795
APPEAL from
a judgment of the Superior Court
of
Bernardino County, Michael A. Smith, Judge. (Retired judge of the San Bernardino Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
ORIGINAL
PROCEEDING in habeas corpus. Petition
denied.
By this
appeal and consolidated proceeding for writ
of habeas corpus, Mathew Ruben Manzano challenges the judgment sentencing
him to prison after a jury found him guilty of the
Jr., and the second degree murder of Fernando Gurule. In both the appeal and the habeas corpus
proceeding, Manzano contends his trial counsel was ineffective for failing to
correct and failing to assign as misconduct certain factual misrepresentations
made by the prosecutor during the guilt phase
the prosecutor unconstitutionally used peremptory challenges to prevent
Hispanic men from sitting on the jury; trial of the guilt phase by a
death-qualified jury violated his constitutional rights; the court erroneously
sentenced him to life in prison without the possibility of parole (LWOP) for
the second degree murder of Gurule; and the cumulative effect of trial errors
unconstitutionally deprived him of a fair trial.
We agree
the court imposed an unauthorized prison term of LWOP for the second degree
murder of Gurule and modify the judgment to impose the correct prison term of
15 years to life. We reject Manzano's
other arguments, affirm the judgment as modified, and deny the petition for
writ of habeas corpus.
I
FACTUAL
BACKGROUND
A. The Murders
On March 19, 2005, at approximately 11:00 p.m., a masked man later identified
as Manzano (see pt. I.C., post)
entered a house and shot and killed Gurule and Holguin. Holguin's
two-day-old son was also shot in the feet.
Immediately
after the shootings, Holguin's
girlfriend, who was lying on the floor during the shootings, heard Manzano ask,
"What's up now, fool?" Manzano
then left the house, making a sound as if he were dragging his foot.
A neighbor
saw Manzano as he exited the house and headed toward the street. Manzano limped toward a second man (later
identified as Eric Estrada) and said he thought he had been stabbed and they
"need[ed] to leave now."
Manzano and Estrada got into a nearby car and sped away.
B. The Initial
Investigation
In response
to a telephone call from the victims' survivors, officers from the sheriff's
department went to the murder scene and collected evidence. Several bullets and casings of two different
calibers were found near the corpses.
Two sets of footprints were found in a flowerbed near the driveway.
Meanwhile,
a police officer was dispatched to a hospital where Manzano presented with a
gunshot wound to his back. Manzano told
the officer someone drove by and shot him while he was walking along a street. Manzano also said that after he was shot, two
unknown men pulled up in another car and took him to the hospital. The officer went to the location where
Manzano said he had been shot, but no one in the vicinity heard gunshots or saw
Manzano; and the officer found no bullet casings, blood, broken glass or other
physical evidence to corroborate Manzano's story.
A detective
from the sheriff's department also spoke to Manzano at the hospital. The detective photographed the soles of
Manzano's shoes, traveled to the murder scene to compare the photographs to the
two sets of footprints found in the flowerbed, and determined one set matched
Manzano's shoes. When the detective
returned to the hospital and asked Manzano where his shoes were, Manzano said
his sister had taken them. Manzano's
shoes were later examined and tested by a criminalist working for the sheriff's
department, who determined the shoes could have left the footprints found in
the flowerbed outside the house where Holguin and Gurule were murdered.
The
detective also observed the surgical procedure during which a bullet was
removed from Manzano's pelvis. The
bullet was fired from the same gun that fired some of the bullets found at the
murder scene.
C. The Informant
Ernesto
Regalado met Manzano "out on the streets" in 2004 when they were both
members of the Varrio Redlands criminal street gang. Manzano and Regalado were incarcerated at the
same prison from late March to early July 2005, during which time Manzano told
Regalado he had murdered Gurule and Holguin.
In June
2009, while Regalado was again in prison, he contacted the sheriff's department
about the murders. According to
Regalado, Manzano told him the following:
Manzano disliked Holguin because he
had testified against Manzano in a carjacking case. A week before the murders, Manzano tagged
Holguin's sidewalk with gang graffiti.
On the
night of the murders, Manzano and Estrada saw Holguin with a woman at a liquor
store. Estrada asked Manzano, "What
are you going to do?" Manzano
responded, "I'm not going to do nothing because there's a lady
present." Estrada then said,
"F**k that shit. This is
gang-banging." The two continued to
argue, and Manzano eventually said, "I'll run up in that fool's
house. . . . I'll show
you, I'll show you what's up . . . ."
Later that
night, Manzano and Estrada drove to Holguin's house, where Manzano shot Gurule
and Holguin. While Manzano was shooting
Holguin, Estrada fired shots at the couch on which Holguin lay. One of Estrada's shots hit Manzano in the
back as he started to exit the house.
The
following morning when Manzano was on the way to the hospital, he fabricated a
story about his gunshot wound. According
to Regalado, Manzano "was going to say he was walking down the street and
got jacked by some niggers."
II
PROCEDURAL
BACKGROUND
A. The Charges
After
Regalado reported that Manzano had admitted shooting Gurule and Holguin, the
People charged Manzano with the murders of Holguin (count 1) and Gurule
(count 2) (Pen. Code, § 187, subd. (a))
attempted murder of Holguin's son (count 3) (§§ 187, subd. (a),
664).
The People
alleged multiple special circumstance allegations in connection with the murder
charges. As to counts 1 and 2, they
alleged Manzano committed multiple murders and intentionally killed Holguin and
Gurule while Manzano was an active member of a criminal street gang to further
the activities of the gang.
(§ 190.2, subd. (a)(3), (22).)
As to count 1, the People alleged Manzano intentionally killed
Holguin in retaliation for testifying in a criminal proceeding. (§ 190.2, subd. (a)(10).) As to count 2, they alleged Manzano
killed Gurule in the course of a kidnapping.
(§ 190.2, subd. (a)(17)(B).)
As to all
counts, the People alleged multiple firearm enhancement allegations. (§ 12022.53, subds. (b)-(d).)
Finally, as
to count 3, the People alleged Manzano's attempted murder of Holguin's son
was gang related. (§ 186.22,
subd. (b)(1)(C).)
B. The Verdicts and
Sentence
At the
guilt phase, the jury found Manzano guilty of first degree murder on
count 1 and second degree murder on count 2, but not guilty on
count 3. The jury also found true
all the special circumstance and firearm enhancement allegations attached to
both murder counts.
title="">[2]
At the
penalty phase, the People sought the death penalty. The jury, however, returned verdicts setting
the punishment for each murder conviction as imprisonment for LWOP.
Based on
the jury's penalty phase verdicts, the court sentenced Manzano to two
consecutive prison terms of LWOP.
(§§ 190, subd. (a), 190.2, subd. (a).) For each conviction, the court also imposed a
consecutive prison term of 25 years to life for the enhancement for personal
and intentional discharge of a firearm causing death. (§ 12022.53, subd. (d).) The court imposed but stayed execution of the
prison terms for the other firearm enhancements. (§§ 12022.53, subds. (b), (c),
654.) Manzano's aggregate prison
sentence was therefore 50 years to life plus two consecutive terms of LWOP.
III
DISCUSSION
Manzano
raises several claims of error, including the prosecutor's unconstitutional use
of peremptory challenges, ineffective assistance of trial counsel, the trial
court's unconstitutional death qualification of the jury before the guilt phase
of trial, sentencing error and cumulative effect of errors. We shall consider these claims seriatim.
A. The Trial Court Properly Denied Manzano's Motions Objecting to the Prosecutor's Use of Peremptory
Challenges
Manzano,
who is Hispanic, contends the trial court erred in denying his motions
objecting to the prosecutor's use of peremptory challenges (see Code Civ.
Proc., §§ 225, subd. (b)(2), 226, subd. (b)) to prevent two
Hispanic men from sitting on the jury.
According to Manzano, such use of peremptory challenges is prohibited by
Batson v. Kentucky (1986) 476 U.S. 79
(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and "is an error of state and federal constitutional
magnitude requiring reversal per se." As explained below, we conclude the record
contains substantial evidence to support the trial court's Batson/Wheeler rulings
challenged on appeal.
1.
During jury
selection, Manzano's counsel made a Batson/
third Hispanic man from the jury. The trial court found no prima facie case of
discriminatory purpose and denied the motion.
Manzano's counsel made another Batson/
a peremptory challenge against a fourth Hispanic man. This time, the court found a prima facie case
of discriminatory purpose and asked the prosecutor for an explanation. After hearing from the prosecutor and
Manzano's counsel, the court denied the motion.
After the
jury was selected, the trial court asked the prosecutor to explain his use of
peremptory challenges against the two Hispanic men he excused before Manzano's
counsel made the first Batson/
issue on appeal, were made to prospective jurors A.A. (No. 67) and R.O.
(No. 172).
The prosecutor
began his explanation by stating the juror questionnaires did not have any
"racial information. That's been
whited out by another person in my office."
The
prosecutor then explained he excused R.O. for several reasons: (1) R.O. was "extremely confused
about the death penalty" even
after voir dire; (2) "[h]e was not engaged in the questioning by
counsel or by the court unlike the other jurors"; (3) R.O. had
"low education levels" and no "outside activities";
(4) he had "no experience . . . working in a
group-like situation to develop an ultimate decision or to reach an ultimate
goal"; and (5) "[h]e would be very reluctant to impose the death
penalty."
As to the
peremptory challenge to A.A., the prosecutor again gave several reasons for the
challenge: (1) A.A. "was
extremely confused by the process" as "shown in his
questionnaire," but the confusion was not cleared up by oral voir dire;
(2) "he had a bad experience with police officers, to wit, a CHP
[California Highway Patrol] officer had lied about a ticket";
(3) A.A.'s "coworker had sent threatening text messages," and
A.A. "had been beat up in a nightclub"; (4) "[h]e was very
opinionated," stating "he felt the process produced too many innocent
people being victimized by the system," he " '[would] believe what [he] believe[d],' " and "he would
accept no excuses in terms of background"; (5) A.A. "was pro
death, . . . almost a fanatic on it"; and
(6) after he entered the jury box, A.A. "began to slouch in the seat
[and] tak[e] no interest in [the proceedings]," indicating to the
prosecutor that A.A. would not "fit cohesively with the remainder of the
jurors."
After
hearing from Manzano's counsel, who disagreed that A.A. slouched in his seat
and appeared "disrespectful" but did not otherwise challenge the
factual assertions of the prosecutor, the trial court found the prosecutor had
articulated valid reasons for excusing R.O. and A.A. The court also noted that after the jury had
been selected, the prosecutor had 10 remaining peremptory challenges and two
Hispanic men had been selected for the jury.
2.
It is
settled that using peremptory challenges to excuse prospective jurors on the
basis of race violates a criminal defendant's federal constitutional right to
equal protection of the laws (U.S. Const., 14th Amend.; Batson, supra,
constitutional right to a jury drawn from a representative cross-section of the
community (Cal. Const., art. I, § 16; Wheeler, supra,
When ruling on a defendant's
Batson/Wheeler motion objecting to the prosecutor's use of peremptory
challenges, the trial court follows a three-step procedure. "First, the defendant must make
out a prima facie case 'by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.' [Citations.
the defendant has made out a prima facie case, the 'burden shifts to the
[prosecutor] to explain adequately the racial exclusion' by offering
permissible race-neutral justifications for the strikes. [Citations.]
Third, '[i]f a race-neutral explanation is tendered, the trial court
must then decide . . . whether the opponent of the strike
has proved purposeful racial discrimination.' " (Johnson
v. California (2005) 545 U.S. 162, 168, fn. omitted.)
"On
appeal, when reviewing a trial court's third-step determination on the ultimate
issue of purposeful discrimination, we apply the deferential substantial
evidence standard." (
559 (Elliott).) The pertinent record includes the transcript
of the oral voir dire and any juror questionnaires. (People
v. Griffin (2004) 33 Cal.4th 536, 555.)
In reviewing those materials, we presume the prosecutor used peremptory
challenges in a constitutional manner, and give great deference to the trial
court in distinguishing bona fide reasons from pretextual excuses. (People
v. Booker (2011) 51 Cal.4th 141, 165.)
As long as the trial court made a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered by the prosecutor, the
court's conclusions are entitled to deference on appeal. (Ibid.)
3.
As an
initial matter, Manzano advances a procedural argument: "the trial court committed error by
failing to conduct the 'step three' analysis" under Batson/Wheeler "to
determine the credibility of the prosecutor's explanation." According to Manzano, because the prosecutor provided
"unsupported reasons for excusing prospective Hispanic jurors" R.O.
and A.A., " 'more [was] required of the
trial court than a global finding that the reasons appear sufficient.' " (Quoting
People v. Silva (2001) 25 Cal.4th
345, 386, emphasis added by appellant omitted.)
We disagree.
Our Supreme Court rejected an
argument indistinguishable from Manzano's in People v. Lewis (2008) 43 Cal.4th 415 (
In Lewis, "[t]he trial
court denied the motions only after observing the relevant voir dire and
listening to the prosecutor's reasons supporting each strike and to any defense
argument supporting the motions. Nothing
in the record suggests that the trial court either was unaware of its duty to
evaluate the credibility of the prosecutor's reasons or that it failed to
fulfill that duty. [Citations.] Moreover, the trial court was not required to
question the prosecutor or explain its findings on the record because, as we
will explain, the prosecutor's reasons were neither inherently implausible nor
unsupported by the record." (
this case to the same extent they did in Lewis,
the Supreme Court held that appellate courts "apply the usual substantial
evidence standard" in reviewing the trial court's rulings on objections to
peremptory challenges. (
361 (Jones).) We thus proceed to apply that standard of
review to the trial court's rulings on Manzano's objections to the
prosecutor's peremptory challenges of R.O. and A.A.
As noted,
the prosecutor gave several reasons for excusing R.O., including lack of
education; lack of "outside activities"; lack of decisionmaking
experience; confusion and inconsistency about the death penalty even after voir
dire; reluctance to impose the death penalty; and lack of engagement during
voir dire. Our Supreme Court has held
such reasons are permissible, race-neutral grounds for using a peremptory
challenge to excuse a prospective juror.
(See, e.g., Elliott,
[reluctance to return death verdict; inconsistency and ambiguity of
questionnaire and oral voir dire responses]; People v. Ledesma (2006) 39 Cal.4th 641, 678-679 [concern
prospective juror "was not very bright" and gave inconsistent answers
on questionnaire and oral voir dire]; People
v. Reynoso (2003) 31 Cal.4th 903, 924, 925 (Reynoso) [juror had "insufficient 'educational experience,' " no prior
experience with jury or criminal justice system, and "appeared to be
inattentive and uninvolved in the jury selection process"];
[prospective jurors' "inexperience with assuming weighty decisions and
responsibilities"].) As discussed
below, substantial evidence supports these stated reasons.
R.O.
indicated on his juror questionnaire that his highest educational level was
high school. Although he indicated he
had "work[ed] with a group of people to make a decision" in a
work-related context, R.O. also indicated he belonged to no clubs, civic
organizations, or volunteer groups; seldom pursued positions of leadership; and
had no previous experience with the jury or criminal justice system.
questionnaire answers indicated an unwillingness to consider most of the
aggravating and mitigating factors relevant to penalty determination and an
inclination to impose an LWOP prison term ("very strong") rather than
death ("[i]f deserved"). Other
answers contained spelling or grammatical errors, or were nonresponsive,
simplistic or inconsistent. Because the
prosecutor reasonably could conclude from these answers that R.O. "would
not be the best type of juror for the case" (Reynoso, supra, 31
Cal.4th at p. 925), the record contains substantial evidence that supports
the prosecutor's stated grounds for excusing R.O. and justifies the trial
court's denial of Manzano's Batson/
Cal.4th at p. 561 [prospective juror's questionnaire answers provided substantial
evidence to support trial court's denial of Batson/
Manzano
contends the prosecutor's stated reasons for excusing R.O. were a mere pretext,
and the real reason was R.O.'s race. For
example, in disputing the prosecutor's assertions that R.O. was confused about
and would be reluctant to impose the death penalty, Manzano complains "the
questionnaire dealt with the death penalty in a confusing way"; and he
points out that after the court explained certain aspects of the penalty phase
procedure during oral voir dire, R.O. stated he could vote for a death verdict
if "substantial aggravating factors . . . convinced
[him] death was appropriate."
Manzano, however, forfeited any claim the juror questionnaire was so
confusing that questionnaire answers cannot provide an adequate basis for the
prosecutor's peremptory challenge of R.O., because the record indicates
Manzano's trial counsel was heavily involved in drafting the questionnaire and
accepted, without apparent objection, the final form of the questionnaire. (People
v. Thompson (2010) 49 Cal.4th 79, 97 (Thompson).) As noted above, R.O.'s questionnaire answers
support the prosecutor's stated concern about R.O.'s confusion, and our Supreme
Court repeatedly has held that juror questionnaire answers may constitute
substantial evidence in support of a trial court's denial of a defendant's
38 Cal.4th 72, 106.) Those answers do
not lose their status as substantial evidence in support of the trial court's
ruling merely because R.O. gave other answers during oral voir dire suggesting
his confusion had been cleared up.
Although R.O. eventually "stated [he] could impose the death
penalty, 'neither the prosecutor nor the trial court was required to take [his]
answers at face value' "
(People v. Panah (2005) 35 Cal.4th
395, 441); and "the mere possibility that one could draw plausible
inferences about [R.O.] other than those the prosecutor did does not mean the
prosecutor's stated reason was pretextual" (Thompson, at p. 108).
As
additional support for his argument the prosecutor's stated grounds for
excusing R.O. were pretextual, Manzano cites questionnaire and oral voir dire
responses from other prospective jurors who were also confused about death
penalty issues or had no formal education beyond high school, but whom the
prosecutor did not immediately challenge.
Manzano concedes, however, that "all of the jurors accepted to the
panel had at least 'some college' education," and that his trial counsel
and the prosecutor each ultimately exercised peremptory challenges against the
two other prospective jurors who had no formal education beyond high school. (See Wheeler,
supra, 22 Cal.3d at p. 282
[prosecutor may justify challenge by demonstrating "that in the course of
this same voir dire he also challenged similarly situated members of the
majority group on identical or comparable grounds"].) And as the People correctly point out,
although the responses of two prospective jurors who subsequently sat on the
panel indicated some confusion regarding death penalty questions, compared to
R.O. those jurors appeared less confused, had more education, had sat on a jury
previously, and expressed no similar reluctance to impose the death
penalty. Because those other jurors were
thus more favorable to the prosecutor in other respects he considered
important, his decision not to challenge them on the ground of confusion about
the death penalty does not indicate pretextual reliance on that ground as one
of several for excusing R.O. (See
factor need not challenge every prospective juror to whom that concern applies
in order to legitimately challenge any of them."]; People v. Ledesma, supra,
39 Cal.4th at p. 678 [" '[A]
party may decide to excuse a prospective juror for a variety of reasons,
finding no single characteristic dispositive.' "].)
Manzano also
asserts the prosecutor's failure to ask R.O. any questions when the court
permitted counsel to conduct personal voir dire examination "shows the
prosecutor's stated reason for challenging [R.O.] was not sincere." We disagree.
The failure to question a prospective juror "is of limited
significance in a case such as this one, in which the prosecutor reviewed the
jurors' questionnaire answers and was able to observe their responses and
demeanor, first, during extensive individual questioning by the court and
later, during group voir dire." (
906-907 (Clark).) And in any event, "a party need not
inquire into every possible concern that party may have regarding a prospective
juror." (Jones, supra, 51 Cal.4th
at p. 368.) Here, "the
prosecutor reasonably could have believed that voir dire would do nothing to
clarify [R.O.'s] questionnaire responses" about his education level and
reluctance to impose the death penalty, "which were unambiguous and
themselves sufficient to support the exercise of a peremptory
challenge." (Lewis, supra, 43 Cal.4th
at p. 477.)
Turning to
the prosecutor's peremptory challenge of prospective juror A.A., we note the
prosecutor again gave several reasons for the challenge, including A.A.'s confusion
about death penalty issues; "bad experience with police officers"
regarding a traffic ticket; unstable lifestyle, including receipt of threats
from a coworker and involvement in a violent incident at a nightclub; opinions
that "too many innocent people [were] victimized by the system";
insistence he " '[would]
believe what [he] believe[d]' "
and "would accept no excuses in terms of background"; and being
"almost a fanatic" on the death penalty.
permissible, race-neutral grounds for a peremptory challenge include a
prospective juror's: (1) ambiguous
and inconsistent answers during voir dire (Elliott,
supra, 53 Cal.4th at p. 566);
(2) "negative experience with law enforcement" (
171); (3) involvement in alcohol-related violent incidents (
140 (Salcido)) or other
characteristics that "suggest an unconventional lifestyle" (
criminal justice system" (Clark,
supra, 52 Cal.4th at p. 907);
(5) strong opinions about the death penalty (People v. Avila (2006) 38 Cal.4th 491, 558); and
(6) unwillingness " 'to
be open-minded' "
(Elliott, at p. 569) or to
"be influenced by anyone's opinion but his own" (Gutierrez, supra, 28
Cal.4th at p. 1125). The record of
the jury selection process contains evidence to support each of these grounds
for excusing A.A.
Manzano
concedes "[s]everal of [A.A.'s] responses to the questionnaire did
indicate some confusion regarding the process" of selecting between death
and an LWOP prison term at the penalty phase.
He also concedes A.A.'s questionnaire responses regarding death penalty
issues were contradictory and inconsistent with answers he later gave during
oral voir dire.
Additionally,
A.A.'s questionnaire responses indicated he had negative opinions about law
enforcement and the criminal justice system.
For example, in response to the question whether he had any bad
experiences with law enforcement, A.A. wrote:
"The CHP officer that gave me a ticket. I felt he lied in court. I felt that although I was speeding, he lied
on the speed of the ticket." In
response to questions about the role of the criminal justice system and the
death penalty, A.A. wrote that "in too many cases, innocent people have
gone to jail for something they didn't do," and that "innocent people
have gone to jail for serious crimes like this."
A.A.'s
questionnaire responses also substantiated the prosecutor's stated concern that
A.A. "[s]eem[ed] like . . . a person who's living on
the edge." When asked whether he
had ever filed a police report, A.A. responded "yes," and explained
that "[a] coworker was sending threatening text messages." When asked whether he had ever been physically
attacked, A.A. responded "yes," and explained that he "was beat
up by a group of men inside a nightclub."
Finally,
several of A.A.'s questionnaire responses indicated he was a man of strong
opinions about the death penalty and other matters who was unlikely to listen
to or be persuaded by fellow jurors. For
example, A.A. wrote childhood and stressful life experiences were "a lame
excuse" for a person's wrongdoing; indicated he would not consider the majority
of the aggravating and mitigating factors relevant to selecting between death
or an LWOP prison term; and wrote that "we do not give [the death penalty]
enough for crimes that are deserving," and "far too
often . . . people get life in prison when they should've
received the death penalty." Further,
when asked, "What is your opinion about your ability to hold firm to your
decision even if all the other jurors disagree with you?" A.A. wrote,
"I don't care. I will believe what
I believe."
title="">[7]
In sum,
A.A.'s questionnaire responses provided substantial evidence to support the
prosecutor's stated reasons for excusing him.
The trial court's denial of Manzano's Batson/Wheeler motion
challenging that excusal was therefore proper.
(See, e.g., Elliott,
[prospective juror's questionnaire answers provided substantial evidence to
support trial court's denial of Batson/
As he
argued with respect to the excusal of R.O., Manzano argues the prosecutor's
stated reasons for excusing A.A. were mere pretexts intended to disguise racial
discrimination. Manzano initially
complains that "many of the prospective jurors found the penalty phase
section of the questionnaire confusing" and asserts that A.A. "was no
different." As we previously
explained, however, Manzano forfeited any claim the questionnaire was so
confusing that a prospective juror's responses cannot form the basis for a
peremptory challenge. (
Thus, A.A.'s concededly contradictory and inconsistent answers regarding
the death penalty were themselves sufficient to justify the prosecutor's
excusal of A.A. (Elliott, supra, 53
Cal.4th at p. 566; Salcido,
As further
support for his pretext argument, Manzano parses A.A.'s written juror
questionnaire and oral voir dire examination to cite responses that undermine
or contradict the prosecutor's assessment of A.A. as a potential juror. We need not respond point by point to
Manzano's alternative assessment of A.A., however, because "the question
is not whether a different advocate would have assessed the risk [posed by A.A.
as a juror] differently, but whether [the prosecutor] was acting in a
constitutionally prohibited way." (
Because "[t]he proper focus of a Batson/Wheeler inquiry . . . is
on the subjective genuineness of the
race-neutral reasons given for the peremptory challenge, not on the objective reasonableness
of those reasons . . ." (Reynoso, supra, 31
Cal.4th at p. 924; accord, Hamilton,
supra, 45 Cal.4th at p. 903),
"[t]he plausibility of [the prosecutor's stated] reasons will be reviewed,
but not reweighed, in light of the entire record" (Lenix, at p. 621).
Where, as here, the evidence supports the trial court's conclusion that
the prosecutor's stated reasons for peremptorily challenging a prospective
juror were race-neutral and not pretextual, the opinion of the reviewing court
that the evidence might also support a contrary conclusion does not warrant
reversal. (Id. at pp. 627-628.)
In addition
to the grounds articulated by the prosecutor for excusing R.O. and A.A., the
trial court relied on the fact that two Hispanic men had been accepted onto the
jury as another factor supporting denial of Manzano's Batson/Wheeler motions. The parties do not contest the trial court's
reliance on this additional factor.
" 'While
the fact that the jury included members of a group allegedly discriminated
against is not conclusive, it is an indication of good faith in exercising
peremptories, and an appropriate factor for the trial judge to consider in
ruling on a [Batson/]
v. Ward (2005) 36 Cal.4th 186, 203; accord, Clark, supra, 52 Cal.4th
at p. 906; Lewis,
"In
sum, 'a prosecutor, like any party, may exercise a peremptory challenge against
anyone, including members of cognizable groups.
All that is prohibited is challenging a person because the person
is a member of that group.' " (
The record here shows the prosecutor exercised his peremptory challenges
for legitimate, race-neutral reasons, not to eliminate Hispanic men because of
their race. Accordingly, "[t]his
case presents no exceptional circumstances requiring us to overturn the trial
court's ruling[s]." (
B. Manzano Has Not
Established His Trial Counsel Provided Ineffective Assistance
Manzano claims he was denied his
constitutional right to the effective assistance of counsel because his trial
counsel did not take adequate steps to correct the prosecutor's false statement
during the guilt phase closing argument that Holguin's DNA was found in a blood
stain on Manzano's pants. After setting
forth additional relevant background information, we shall explain why we
reject this claim of error.
1. Additional
Background
At the guilt phase of Manzano's
trial, a supervising criminalist who worked for the sheriff's department
testified regarding the results of DNA tests she had performed on several
articles of clothing Manzano wore the night of the murders, including his
pants. According to the criminalist,
several blood stains on the pants contained a mixture of DNA from Manzano and
another donor; but Holguin, Holguin's son and Gurule were all excluded as
possible donors of the DNA found in any of those stains.
During the initial portion of his
prosecutor made no mention of the DNA test results.
Manzano's trial counsel, however,
briefly mentioned the DNA evidence in his closing argument. He argued the prosecutor
"minimize[d]" that evidence because the prosecutor knew "there's
no DNA in this case" and "want[ed the jury] to think, 'Well, DNA is
not important.' " Counsel further pointed out to the jury that
there was "[n]o blood, no DNA, [and] no fingerprints" linking Manzano
to the murders.
During the rebuttal portion of his
closing argument, the prosecutor disagreed with Manzano's trial counsel and
told the jury Holguin's DNA had been found on Manzano's pants:
"[The
prosecutor]: DNA. All right, the DNA in this case is -- is
relatively weak. The reason for that is,
well, you heard the testimony. DNA is
sometimes the be-all to tell all. You
received figures in the quadrillions.
You had that in this case. But
you had identity evidence that you would expect to have that type of strong
DNA. Clothing belonging to
Mr. Manzano had his blood on it.
Also, that blue shirt that he denied being his, had his blood on
it. And the DNA showed it. [¶]
But you do have some DNA that relates back to one of the victims. And, it is not strong, but it does have some
evidentiary weight. You have the DNA of [Holguin]
"[Defense
counsel]: Objection. Misstates the evidence.
"The
Court: The pants or shoes?
"[The
prosecutor]: Pants.
"[Defense
counsel]: That wasn't the testimony.
"The
Court: Overruled. Again, ladies and gentlemen, you are the
judge of what the actual evidence and facts were. You may proceed.
"[The
prosecutor]: Thank you. And
that evidence is that the blood that was found on that article of clothing,
which I believe are the pants, okay, matches [Holguin's] blood type,
which he shares with one out of 97 Hispanics.
So, approximately a 1 percent match. Now, ladies and gentlemen, that may seem very
high mathematically, but in terms of DNA, it's very low. It's very low. . . . [¶]
Also, it could match a Caucasian.
One out of 11, approximately 10 percent of Caucasians share that
DNA blood type that was found on that article of clothing. [¶]
Again, some evidence, but not telling.
And you certainly could not issue a case, a criminal case which requires
proof beyond a reasonable doubt, based upon that evidence alone. [¶] In
combination with everything else?
Perhaps now you have proof beyond a reasonable doubt. Perhaps." (Italics added.)
The People concede the prosecutor
misstated the evidence when he told the jury that Holguin's DNA had been found
on the pants Manzano wore the night of the murders. Indeed, as noted above, the criminalist who
performed the DNA analysis testified Holguin had been excluded as a contributor to the blood stains found on Manzano's
pants.
2. Legal
Analysis
Manzano claims he was deprived of
his federal and state constitutional rights to the effective assistance of
counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 686 (
(1) trial counsel's performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability the result of the
trial would have been different had counsel's errors not occurred. (Strickland,
at pp. 687-688, 694; People v.
Ledesma, supra, at
pp. 216-217.) Manzano contends it
is reasonably probable he would have obtained a better outcome at trial had his
trial counsel done more than merely object that the prosecutor had misstated
the evidence when he told the jury during closing argument that Holguin's DNA
had been found in blood stains on Manzano's pants. He contends counsel also should have (1) "immediately requested that the court correct the
error" and (2) specifically
"object[ed] that the prosecutor's tactics and argument amounted to
misconduct," and his failure to do so "undermined confidence in the
verdicts." We are not persuaded.
Preliminarily,
we note that as part of his ineffective assistance claims, Manzano
argues that the prosecutor committed misconduct when he misstated the DNA
evidence and that such misconduct by
itself requires reversal of the judgment.
Specifically, he accuses the prosecutor of "playing 'hide the ball'
in dealing with the Holguin DNA evidence" when he "saved his
bombshell for rebuttal," and argues such "deception" "made
[his] trial fundamentally unfair."
According to Manzano: "Had
the prosecutor dropped his DNA bombshell during his initial jury summation,
rather than withholding it until rebuttal, trial counsel's summation clearly
would have been far different. He would
have had an opportunity to address the prosecutor's assertion in detail. The prosecutor denied [trial counsel] that
opportunity by waiting until rebuttal.
In that way the prosecutor had the last word on this topic."
We agree
with Manzano that a prosecutor commits misconduct where, as here, he misstates
or mischaracterizes the evidence or asserts facts that are not in
evidence. (People v. Davis (2005) 36 Cal.4th 510, 550; People v. Hill (1998) 17 Cal.4th 800, 823,
827-828 (Hill).) But, "[t]o preserve a claim of
prosecutorial misconduct for appeal, a defendant must make a timely and
specific objection and ask the trial court to admonish the jury to disregard
the improper argument." (
254, 305.) Manzano did not object to the
prosecutor's misstatement as misconduct at trial or ask the trial court to
admonish the jury to disregard the misconduct.
He thereby forfeited the prosecutorial misconduct claim because an
admonition could have cured any potential harm caused by the misconduct. (E.g., People
v. Fuiava (2012) 53 Cal.4th 622, 679-680; People v. Benson (1990) 52 Cal.3d 754, 794.) We therefore need not consider any claim of
prosecutorial misconduct,
name="_ftnref10" title="">[10]
and instead turn to the alleged deficiencies in the performance of Manzano's
trial counsel.
In considering those alleged
deficiencies, we note that the California Supreme Court repeatedly has held a
trial attorney's decision whether to object or seek a jury admonition is a
strategic one, and the failure to do either seldom establishes constitutionally
ineffective assistance of counsel. (E.g.,
People v. Castaneda (2011) 51 Cal.4th
1292, 1335 (Castaneda);
233 (Collins); People v. Ghent (1987) 43 Cal.3d 739, 772-773 (Ghent).) The Supreme Court
has "noted on countless occasions [that] the decision facing counsel in
the midst of trial over whether to object to comments made by the prosecutor in
closing argument is a highly tactical one," and it has expressed
reluctance "to second-guess defense counsel's apparent decision not to
object." (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on other
grounds by Hill, supra, 17 Cal.4th at p. 823, fn. 1.) "Moreover, '[i]f the record on appeal
fails to show why counsel acted or failed to act in the instance asserted to be
ineffective, unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation, the claim
must be rejected on appeal.' " (
206 (Huggins).)
Here,
the record on appeal contains no information about why Manzano's trial counsel
did not do anything more than object that the prosecutor misstated the evidence
by telling the jury Holguin's DNA had been found on Manzano's pants. And, contrary to Manzano's assertion, this is
not a situation in which counsel could have had no tactical reason for not
doing more. For example, counsel could
have concluded further steps on his part would have drawn closer attention to
the prosecutor's misstatement, which might have caused more harm than the
misstatement and objection. (See
Cal.4th at p. 233; Ghent,
supra, 43 Cal.3d at p. 773.) Or, counsel could have concluded his
objection, coupled with the trial court's reminder to the jury that it was its
duty to determine the facts, was equivalent to an admonition that was
sufficient to correct the prosecutor's factual misstatement. (Cf. People v. Kipp (2001) 26 Cal.4th 1100, 1130 [after objection that
prosecutor was appealing to jurors' sympathy and court's statement that jury
would receive an instruction not to be guided by sympathy, counsel could
"have concluded that the instruction would function as an
admonition"].) Thus, because there
are possible reasonable explanations for Manzano's trial counsel's
not taking additional steps to address the prosecutor's factual misstatement,
"[w]e cannot find on this record that counsel's performance was
deficient." (Huggins, supra, 38
Cal.4th at p. 206.)
name="_ftnref11" title="">[11]
Even if we
assume Manzano's trial counsel erred by not taking additional corrective action
after objecting to the prosecutor's misstatement, we would still reject
Manzano's ineffective assistance claims.
As noted earlier, "any deficiencies in counsel's performance must be prejudicial to
the defense in order to constitute ineffective assistance under the
Constitution." (
43 Cal.3d at p. 217.) In
particular, where, as here, "a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt." (Strickland,
at p. 695; accord, People v. Ledesma,
supra, at p. 218.) "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." (Strickland,
at p. 694; accord, People v. Ledesma,
supra, at p. 218.) There is no such probability here.
It is not reasonably likely the jury
was misled by the prosecutor's factual misstatement regarding the presence of Holguin's
DNA on Manzano's pants. Before that
misstatement was made, the trial court had instructed the jury: "You must decide what the facts are in
this case. . . . [¶] Nothing the attorneys say is evidence. In their opening statements and closing arguments,
the attorneys discuss the case, but their remarks are not evidence." The court reminded the jury, immediately
before closing arguments, that "the statements of the attorneys are not
evidence, cannot be considered by you as evidence." And, in response to Manzano's trial counsel's
objection to the prosecutor's misstatement, the court again advised the jurors
that they "are the judge of what the actual evidence and facts
were." "We presume the jury
followed these instructions." (
719.)
Furthermore, the DNA test results
were not a significant component of the evidence establishing Manzano's
guilt. Indeed, during jury selection the
prosecutor stated the DNA evidence would "indicate nothing" and would
not be "conclusive" in this case.
Even in the rebuttal portion of the guilt phase closing argument about
which Manzano complains, the prosecutor spent very little time on the DNA
evidence. He described that evidence as
"relatively weak," "not strong," "very low" in
strength and "not telling"; argued the jury "certainly could
not" return a guilty verdict "based upon that evidence alone";
and suggested that "[p]erhaps," [i]n combination with everything
else," there was enough to establish Manzano's guilt beyond a reasonable
doubt. The prosecutor thus expressed
uncertainty about and placed very little reliance on the DNA evidence as proof
that Manzano murdered Holguin. In stark
contrast, Manzano's trial counsel expressed no such uncertainty; he frankly
told the jury there was "[n]o blood, no DNA, [and] no fingerprints"
linking Manzano to the murders.
Rather, this case turned on the
testimony of Regalado, to whom Manzano confessed the murders while they were in
prison together. As related above,
Regalado gave a credible account of the murders that placed Manzano at the
murder scene, identified him as the killer, explained his motive, and included
many details about the killings and how Estrada shot Manzano during the
killings. (See pt. I.C.,
Other witnesses' testimony and physical evidence corroborated Regalado's
testimony. (See pt. I.A.-B.,
ante.) For
example: (1) footprints
matching the shoes Manzano wore the night of the murders were found at the
murder scene; (2) after
the shootings, Holguin's girlfriend heard the shooter make a remark
("What's up now, fool?") that indicated fulfillment of Manzano's earlier promise to
Estrada ("I'll run up in that fool's house" and "show you
what's up"); (3) a
bullet fired from the same gun that fired some of the bullets found at the
murder scene was removed from Manzano's pelvis shortly after a neighbor saw a man limp out of
Holguin's house and heard him say he thought he had been stabbed; and
(4) a detective investigated but found no evidence to substantiate
Manzano's claim he was shot by unknown assailants miles away from the murder
scene, a claim Regalado testified Manzano had fabricated. All of this evidence tended to establish
Manzano's guilt and to negate his asserted alibi.
In light of
Regalado's testimony, the other non-DNA evidence incriminating Manzano and
corroborating Regalado's testimony, and the minimization of the DNA evidence by
both the prosecutor and Manzano's trial counsel, we reject the speculative
assertion of Manzano's appellate counsel at oral argument that because the case
against Manzano was weak, the prosecutor deliberately misrepresented the DNA
evidence in an attempt to bolster the case.
On this record, we cannot conclude that if Manzano's trial counsel had
complained of misconduct and requested curative admonitions when the prosecutor
falsely told the jury that Holguin's DNA had been found on Manzano's pants,
"there is a reasonable probability that . . . the
factfinder would have had a reasonable doubt respecting guilt." (Strickland,
supra, 466 U.S. at p. 695; see
["passing reference" that "played a minimal role in
[prosecutor's] argument" was not prejudicial]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [prosecutor's
reference to facts not in evidence during closing argument was not prejudicial
when "[o]verwhelming evidence of defendant's involvement in the instant
crimes was presented through [other means]"].) Accordingly, we reject Manzano's claims of
ineffective assistance of counsel.
C. The Trial Court Did Not
Err by Death Qualifying the Jury Before the Guilt Phase
Manzano
next complains the procedure the trial court employed in death qualifying the
jury before the guilt phase of his trial violated his
jury drawn from a fair cross-section of the community. (See U.S. Const., 6th & 14th Amends.;
528; Cal. Const., art. I, § 16; People
v. Bell (1989) 49 Cal.3d 502, 525 & fn. 10.) Manzano argues the court should have granted
his motion to select two juries (one for the guilt phase and the other for the
penalty phase) or to postpone voir dire about the death penalty until after the
jury returned a verdict of guilty. We
disagree.
Manzano
acknowledges in his briefing that both the
States Supreme Court and the California Supreme Court have rejected his
constitutional objections to the death qualification procedure employed by the
trial court. (See Lockhart v. McCree (1986) 476 U.S. 162, 176-177;
602-604; People v. Mills (2010) 48
Cal.4th 158, 170-173.) He also
acknowledges that we are bound by those decisions. (See, e.g., Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455 ["The decisions of this court are binding upon and must be followed by
all the state courts of California."].)
Accordingly, we reject Manzano's claim the trial court violated the
state and federal Constitutions when it death qualified the jury before trying
the guilt phase.
D. The Sentencing Court Erred by Imposing an LWOP Prison Term for
Manzano's Conviction on Count 2
Manzano
claims the sentencing court erred when it imposed an LWOP prison term for his
conviction of the second degree murder of Gurule (count 2). The People agree, and so do we.
In a murder
case, an LWOP prison term may be imposed only if the defendant is found guilty
of first degree murder with special
circumstances. (§§ 190,
subd. (a), 190.2, subd. (a), 190.3; People v. Rodriguez (1998) 66 Cal.App.4th 157, 164.) Here, however, the jury returned a verdict of
second degree murder on
count 2. With exceptions not
applicable here, the only authorized penalty for second degree murder is
imprisonment for 15 years to life.
(§ 190, subd. (a).) The
jury's procedurally improper special circumstance findings on count 2 (see
fn. 2, ante) did not subject
Manzano to an LWOP prison term, because a conviction of "first degree
murder is a prerequisite for a special circumstance finding" (
prison term of 15 years to life for Manzano's conviction on count 2. (People
v. Barnwell (2007) 41 Cal.4th 1038, 1047-1048 & fn. 7 [modifying
judgment to reduce prison sentence on second degree murder conviction from LWOP
to 15 years to life].)
E. No Cumulative Effect
of Error Requires Reversal
Finally,
Manzano complains the cumulative effect of errors rendered his trial so unfair
as to violate his federal constitutional right not to be deprived of
"life, liberty, or property, without due
process of law." (U.S. Const.,
14th Amend.) Under the cumulative error
doctrine, "a series of trial errors,
though independently harmless, may in some circumstances rise by accretion to
the level of reversible and prejudicial error" if together the errors
"deprived [the defendant] of that which the state was constitutionally
required to provide and he was entitled to receive: a fair trial." (Hill,
supra, 17 Cal.4th at pp. 844,
847, italics added.) Here, Manzano has
established only one error: the imposition of an unauthorized sentence
for his conviction on count 2. That
error, however, occurred at sentencing
and can be fully corrected on appeal.
Hence, because Manzano has not
shown there were multiple errors at trial,
his "claim of cumulative error is without merit." (People
v. Vieira (2005) 35 Cal.4th 264, 305.)
This conclusion
is not altered by our earlier assumption, in rejecting Manzano's ineffective
assistance of counsel claims, that his trial counsel erred once by failing to
correct the prosecutor's factual misrepresentations about the DNA evidence and
a second time by failing to assign that misrepresentation as misconduct and
request a curative admonition. (See
pt. III.B.2, ante.) As we there explained, any such errors "were harmless, whether considered
individually or collectively. [Manzano]
was entitled to a fair trial but not a perfect one." (People
v. Cunningham (2001) 25 Cal.4th 926, 1009.)
Taking all of the errors, both established and assumed, into account, we
are satisfied Manzano received a fair trial and therefore deny his claim of
cumulative error.
DISPOSITION
The
judgment on appeal (D058661) is modified by reducing the prison term imposed on
the conviction on count 2 (second degree murder of Gurule) from LWOP to 15
years to life. As so modified, the
judgment is affirmed. The superior court
is directed to prepare an amended abstract of judgment reflecting this
modification and to forward a certified copy of the amended abstract to the
Rehabilitation.
The consolidated petition for writ of habeas corpus
(D060795) is denied.
IRION, J.
WE CONCUR:
NARES,
Acting P. J.
HALLER,
J.
name="_ftn1" title="">[1] Undesignated section references are to
the Penal Code.
name="_ftn2" title="">[2] The jury should not have addressed the
special circumstance allegations as to count 2 after it reached a verdict
of second degree murder on that count, because a conviction of "first
degree murder is a prerequisite for a special circumstance finding." (People
v. Balinton (1992) 9 Cal.App.4th 587, 590 (Balinton).) The jury's true
findings on those allegations resulted in the unauthorized imposition of an
LWOP prison term for Manzano's conviction on count 2. (See pt. III.D, post.)
