People v. Capers

The next day, officers taped defendant's reenactment of the crimes at the T-shirt store. Defendant reiterated what he told officers during the interviews the day before and again admitted to beating Nathaniel. At the conclusion of the reenactment, defendant said, "I'm just as guilty as the man who pulled the trigger and the man who started the fire." Defendant said he felt bad for the victims, that "it wasn't supposed to happen that way to them, you know, but that still isn't going to change the fact that I was actually involved here and it's not going to change the fact, yes, I'm expecting a conviction out of this and whatever I receive, I deserve, that's it. That's all I got to say." Two weeks later, Griego contacted Leatham to speak with him about the murders before transporting Leatham to the Riverside Police Department so that he could speak with defendant before his arraignment on an unrelated offense.

During a subsequent interview on January 25, 2001, defendant took full responsibility for the crimes. Defendant assured detectives that he was now confessing because he wanted to come clean. He admitted that the crimes happened quickly and that he fired the fatal shots. He subsequently disposed of the murder weapon and the shell casings near some railroad tracks. However, he said Loomis poured the gasoline on the victims, and Romero lit them on fire. He also claimed Leatham stayed outside during the murders and

3. Defense Evidence

Defendant did not testify at trial, nor did he present any evidence. He did attempt to call one witness, Amber Renteria-Kelsey, but she successfully invoked her Fifth Amendment right against self-incrimination, and the court excused her.

Contrary to defendant's argument, considerations of trustworthiness, whether based on his ability to recall or on other factors, are the exclusive province of the jury. ( People v. Anderson (2018) 5 Cal.5th 372 , 404, 235 Cal.Rptr.3d 1 , 420 P.3d 825 .) Thus, allowing the jury to judge the relevant evidence did not violate defendant's due process rights. ( People v. Lopez (2018) 5 Cal.5th 339 , 353-354, 235 Cal.Rptr.3d 64 , 420 P.3d 878 .)

Initially, we note that defendant presents no evidence that investigators either tainted the evidence or coerced defendant's inculpatory statements. Rather, the jury was presented with ample evidence corroborating defendant's inculpatory statements. In addition to the physical evidence that matched defendant's

On November 1, 1999, Barstow Police Department received two handwritten letters addressed to Griego from Renteria, asserting that "there was no

Shoup later interjected, "Just so the record's clear here, the only statements that I see that Amber Renteria [attributes] to Bam-Bam [Loomis] is that Bam-Bam said that he had to get out of town because he and his homie, Wino [Romero], had robbed a place on Main Street and the place burned down. And then, Renteria told me that Bam-Bam had also said that he had to burn the place to get rid of evidence. Those are the only statements that I am aware of. There is nothing in that that exonerates this defendant."

Before the commencement of the penalty phase, Renteria again testified under oath, outside the presence of the jury. She repeated her invocation of her Fifth Amendment privilege. The court stated that it would grant Renteria immunity if it had the power to do so in order to resolve the matter, and again asked the prosecutor if his office would grant the witness immunity. The prosecutor declined, explaining, "If we believe that Renteria had any credibility whatsoever, we would have used [her] statement to file on Carlos Loomis murder charges. We did not do that. We believe she has no credibility at all. That's important to put on the record." The court observed that the case was different from cases in which false testimony led to

Our state compulsory process right "is independently guaranteed by the California Constitution" under article 1, section 15, and is "deemed to be at least as broad and fundamental as the federal" right. ( In re Martin (1987) 44 Cal.3d 1 , 30, 241 Cal.Rptr. 263 , 744 P.2d 374 ( Martin ).) The government violates a defendant's constitutional right to compulsory process when it interferes with the exercise of a defendant's right to present witnesses on his own behalf. ( Ibid. ) A defendant establishes such interference when he or she demonstrates the prosecution intimidated defense witnesses by telling them they could be prosecuted for any crimes they revealed during their testimony. ( Ibid. ) Defendant must also demonstrate the misconduct was a substantial cause of his witness's refusal to testify. ( Id. at p. 31, 241 Cal.Rptr. 263 , 744 P.2d 374 .) Defendant additionally "must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable." ( Id. at p. 32, 241 Cal.Rptr. 263 , 744 P.2d 374 .) If a defendant successfully sustains his burden of demonstrating prejudice, the verdict must be reversed. ( Id. at p. 51, 241 Cal.Rptr. 263 , 744 P.2d 374 .)

In Martin , we held that the defendant successfully demonstrated a compulsory process violation. ( Martin , supra , 44 Cal.3d at p. 42, 241 Cal.Rptr. 263 , 744 P.2d 374 .) There, the prosecutor committed prejudicial misconduct when he informed the defense witness's attorney that if the defense witness testified, he would not get

In contrast to the trial court in Martin , the court here did not deny defendant the right to "put on the stand a witness who was physically ... capable of testifying ... and whose testimony would have been relevant and material to the defense." ( Washington , supra , 388 U.S. at p. 23, 87 S.Ct. 1920 .) Renteria's testimony would not have exonerated defendant, or been material to his defense, either by tending to prove he did not commit the crimes charged or by diminishing his involvement. In fact, Renteria's proposed testimony would have reiterated the prosecution's theory, based in part on defendant's admissions, that defendant committed the crimes with Loomis and Romero. Even if

c. Whether unanimous jury findings are required

As we have many times held, "[t]he jury's reliance on unadjudicated criminal activity as a factor in aggravation under section 190.3, factor (b), without any requirement that the jury unanimously find that the activity was proved beyond a reasonable doubt, does not deprive a defendant of any federal constitutional rights, including the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process." ( Brooks , supra , 3 Cal.5th at p. 115, 219 Cal.Rptr.3d 331 , 396 P.3d 480 .) We have also held that the federal Constitution does not require unanimous jury findings for imposing the death sentence, nor must the jury agree on the existence on any one aggravating factor. ( People v. Hamilton (2009) 45 Cal.4th 863 , 960, 89 Cal.Rptr.3d 286 , 200 P.3d 898 .) Defendant contends that we must reconsider these holdings and others, including People v. Prieto (2003) 30 Cal.4th 226 , 263, 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ( Prieto ), in light of Ring v. Arizona (2002) 536 U.S. 584 , 602, 122 S.Ct. 2428 , 153 L.Ed.2d 556 ( Ring ), which followed Blakely v. Washington (2004) 542 U.S. 296 , 303-305, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (and Apprendi v. New Jersey (2000) 530 U.S. 466 , 490, 120 S.Ct. 2348 , 147 L.Ed.2d 435 ), to hold that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable

d. Validity of California's Death Penalty Jury Instructions

i. Reasonable doubt

Defendant contends that the trial court erred when it did not instruct the jury that the prosecution bore the burden of proof. He argues that his "jury should have been instructed that the State had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumed that life without parole was an appropriate sentence." Alternatively, defendant asserts that if there is no burden of proof,

iv. Requiring written findings

We also decline defendant's request that we reconsider our prior holdings that do not require jurors to submit written findings during a capital case's penalty phase. ( Taylor , supra , 52 Cal.3d at p. 749, 276 Cal.Rptr. 391 , 801 P.2d 1142 .)

g. International Law

Contrary to defendant's contention, international law does not prohibit application of the death penalty in the United States. Although the United States is a signatory to the International Covenant on Civil and Political Rights, "it signed the treaty on the express condition '[t]hat the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws' " allowing capital punishment. ( People v. Thompson (2016) 1 Cal.5th 1043 , 1130, 210 Cal.Rptr.3d 667 , 384 P.3d 693 , citing People v. Brown (2004) 33 Cal.4th 382 , 403-404, 15 Cal.Rptr.3d 624 , 93 P.3d 244 .)

2. Alleged Cumulative Error

Defendant contends the alleged errors at trial cumulatively make his trial unfair and hence resulted in a miscarriage of justice, violating due process.

Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. ( People v. Winbush (2017) 2 Cal.5th 402 , 487, 213 Cal.Rptr.3d 1 , 387 P.3d 1187 ; People v. Hinton (2006) 37 Cal.4th 839 , 897, 913, 38 Cal.Rptr.3d 149 , 126 P.3d 981 .) Although a defendant is entitled to a fair trial, he or she is not entitled to "a perfect one." ( People v. Cunningham (2001) 25 Cal.4th 926 , 1009, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) Even though the cumulative error rule recognizes the value in the efficient administration of justice, it does not elevate it above the protection of individual rights. ( People v. Cuccia (2002) 97 Cal.App.4th 785 , 795, 118 Cal.Rptr.2d 668 .)

We conclude that defendant has not established cumulative error. There are no errors to aggregate. The corpus delicti rule was vindicated, and Renteria's

Fire inspection specialist Rita Gay was also on the scene. She believed the fire to have been a "slow burn" that did not immediately flame up but

Griego's investigation focused on defendant and Leatham as suspects. In January 1999, Griego questioned defendant, who was incarcerated at Chino State Prison. Defendant again denied involvement in the crimes.

In December 1999, Griego collected defendant's biological samples so they could be compared to DNA samples obtained from evidence collected at the crime scene. All the DNA collected at the crime scene was matched to either Consuelo or Nathaniel.

Although defendant had denied involvement in the crimes and only talked about who he thought might have committed the T-shirt store murders, his version of events surrounding the murders changed when he met with detectives Steve Shumway and Ronald Sanfilipo on January 5, 2001. The interview, conducted at the Riverside Police Department, came about because defendant's cellmate in Riverside County Jail told authorities that defendant had discussed a Barstow double-murder where the victims had been burned. Griego watched on a video monitor in an adjoining room. After being read

Detective Libby then told defendant that telling only "a little bit of the truth" would not be good for him, and that it would be best if he told the "whole truth." Libby also said that if defendant wanted him to believe that Leatham was not involved in the murders, he would have to convince him that he was telling them the "complete truth." Defendant then admitted that he entered the store and forced Consuelo and Nathaniel through the store's back door. Defendant claimed that Loomis hit Consuelo with a stick-like

Detective Dennis Florence testified that a shoot-out involving a man named Jerry Corhn occurred in March 2002. Corhn

Defendant presented the testimony of Albert Capers, his biological grandfather. Capers stated that he and his wife adopted and raised defendant, whom they loved.

The People's showing of a criminal act, independent of defendant's statements, satisfies the corpus delicti rule. Here, there was substantial independent evidence of "injury, loss, or harm by a criminal agency." ( Alvarez , supra , 27 Cal.4th at p. 1171, 119 Cal.Rptr.2d 903 , 46 P.3d 372 .) Defendant told law enforcement that he fired the fatal shots that killed one of the victims, hid the .45-caliber gun and bullet casings, poured gasoline on the victims, and lit them on fire. Much of the physical evidence corroborates defendant's statements, including the victims' burnt bodies, .45-caliber bullets and one bullet casing recovered at the scene of the murders, and the ample physical evidence that the victims were beaten

We find no constitutional violation or prosecutorial misconduct. It was Shoup who initially told the court that his client

B. Issues Regarding Penalty

1. Constitutionality of California's Death Penalty Statute

Defendant asserts numerous challenges to California's death penalty law that we have repeatedly rejected. We reiterate our previous decisions.

a. Whether Penal Code section 190.2 is impermissibly broad

Defendant asks that we reconsider our well-established holding that "special circumstances listed in section 190.2 that render a murderer eligible for the death penalty, which include felony murder and lying in wait, are not so numerous and broadly interpreted that they fail to narrow the class of death-eligible first degree murderers as required by the Eighth and Fourteenth

Defendant makes the same argument as the defendant made in Prieto , that Ring undermines our previous holdings that: "(1) the jury need not find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (2) the jury need not find each aggravating factor beyond a reasonable doubt; (3) juror unanimity on the aggravating factors is not

ii. Unanimous agreement on aggravating factors

Defendant contends the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments when it failed to instruct the jury that it must unanimously agree on the same factors in aggravation. We have "consistently held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard." ( People v. Taylor (1990) 52 Cal.3d 719 , 749, 276 Cal.Rptr. 391 , 801 P.2d 1142 ( Taylor ).)

The same is true for prior unadjudicated criminal activity. We have repeatedly rejected claims that the jury's findings of prior unadjudicated crimes must be unanimous in relation to evidence admitted under section 190.3, factor (b). ( People v. Foster (2010) 50 Cal.4th 1301 , 1364-1365, 117 Cal.Rptr.3d 658 , 242 P.3d 105 .)

iii. Alleged vague instructions

Contrary to defendant's assertion, California's death penalty jury instructions are not unconstitutionally vague, because they provide that a jury "must be persuaded that the aggravating circumstances are so substantial in comparison

On Monday November 9, 1998, Nathaniel did not arrive for his scheduled shift at the base; he had never missed work without first calling. After he missed work the next day, Margaret Carter, the base's comptroller, became concerned. She called his home and left a message on his answering machine. She then asked a superior what to do about her concern. He told her to call the Barstow Police Department and request a welfare check, which she did.

At the same time Margaret called the Barstow police, two of Nathaniel's colleagues at the base, Loretta Becknall and Nancy Derryberry, went to the T-shirt store to check on him. They could not see inside the store because soot covered the windows. The colleagues notified Margaret that there might have been a fire at the store. Margaret again called Barstow police and also spoke to Bonnie Hulse, an investigative assistant for the Criminal Investigation Division of the Marine Corps. Margaret was told to call the Provost Marshal, who had jurisdiction over the military base. The Provost Marshal's Office notified the Barstow Fire Department.

On Tuesday, November 10, 1998, Barstow Fire Department personnel inspected the victims' T-shirt store for signs of a fire. Salvatore Carrao, the Barstow Fire Department Division Chief, and Fire Engineer Steve Ross noticed heavy black soot on the inside of the store windows. They

Law enforcement personnel identified the second body as likely belonging to Consuelo. Her body had been largely consumed by the fire; much of her remains consisted of ashes and bones. They also discovered a large amount of blood and two metal golf clubs covered in blood. They noticed human hair on the golf clubs and deemed it to have come from Consuelo's head because she had wavy hair while Nathaniel's was more tightly curled. Catherine Wojcik, a sheriff's department criminalist, later compared the hairs found at the crime scene with the hair of both victims. Wojcik determined that the two hairs found on the golf club were similar to samples of Consuelo's hair, though she could not say definitively that they came from Consuelo. She determined Nathaniel was not the source of the two hairs.

Arson investigators later concluded the perpetrators had started two fires, each originating on the body of the two victims. A thick greasy substance was observed on the floor adjacent to the bodies; investigators concluded it might have been the victims' melted body fat.

Charlene Garcia, Nathaniel's daughter, cleaned out the T-shirt store. She informed the police that Nathaniel's gun was the only item she found missing.

Forensic pathologist and deputy medical examiner Dr. Steven Trenkle performed autopsies on both bodies. He testified that Nathaniel had been shot at least four times, and that his body contained eight entrance and exit wounds and had been moderately charred by fire. One bullet had cut through the brain stem and lodged in the base of the skull, and another went through the neck and severed the first cervical vertebrae underneath the skull. None of the injuries were consistent with having been struck with a metal golf club. Dr. Trenkle concluded Nathaniel died as a result of multiple gunshot wounds to the head, neck, and chest.

Lisa Martin became acquainted with defendant a month after the murders. She let defendant stay at her home. During his stay, defendant mentioned four or five times how

Defendant also said that Romero then shot a .45-caliber firearm with a taped-up handle an unspecified number of times, but defendant did not say whom he shot, or how he came into possession of the gun. He said, "I know my guns ... I've been messing with guns for a long time, [so I] knew the caliber ... right off the top." Defendant also said, "I didn't pull the trigger; I didn't rape nobody; I didn't set nobody on fire." After the rape, beating, and shooting, defendant said either Romero or Loomis used gasoline and a lighter to set the bodies on fire. When asked, defendant said he could not recall anyone cleaning up the crime scene. He also said that someone, probably Loomis, had gathered up the .45-caliber shell casings.

Lisa Martin and her mother, Penny Bartis, testified that on January 4, 2000, a month after he moved out of Martin's home, defendant returned with two other men and committed a home invasion robbery. Defendant knocked on the door. When Bartis answered, defendant burst into the house. His two accomplices followed and took the victims to a back bedroom. Defendant was armed and threatened to kill Martin and her family. He then stole money and personal property. Martin testified that the robbery lasted several hours, and defendant and his accomplices stole $6,000 cash as well as jewelry, expensive vases, a safe, and important papers. Martin explained that after the robbery defendant called her and told her that her son, who was also present during the robbery, was being watched. She subsequently took her son out of school. Bartis testified that after the robbery, she received four or five phone calls from defendant asking for Martin. Martin fled to Colorado, leaving her son with Bartis.

Misty Sedillo testified that in 1993, when she was 16 years old, she rode with defendant in a car. Defendant and his friends wanted to shoot at a house, but Misty asked them not to because her brother was playing in the front yard. Later during the ride, defendant pointed a gun at Misty's head.

In September 2002, a deputy sheriff found a homemade shank in defendant's jail cell. Defendant said he feared for his life and that he would not hesitate to use the shank and would make another. He also admitted that for two months he smuggled the shank into court because he planned to stab one of the witnesses who was testifying against him. Another deputy sheriff found a letter defendant tried to mail to elected District Attorney Michael Ramos. In the letter, defendant advised the prosecution to give him the death penalty or else there will be "a lot of blood" on the "County's hands." The prosecution also presented evidence of defendant's 1994 felony conviction for receiving stolen property.

Charlene Garcia, Nathanial's daughter and Consuelo's stepdaughter, testified that her

Defendant initially contends that his statements to law enforcement about

Defendant, however, contends that his well-documented drug and alcohol abuse render all his recollections fatally suspect. Defendant advances a related argument, namely, that his statements were so contradictory, and his history of drug and alcohol abuse, including during the day of the crimes, is so clear, that none of his statements is trustworthy enough to even warrant corroboration. He notes he gave 10 separate statements to authorities. He recounts that in his first statements to Griego, he denied all involvement in the crimes. Later he claimed only to be a lookout. Still later, he confessed to pouring gasoline on the victims. Similarly, his description of the perpetrators changed over time and was thus unreliable.

Defendant claims that statements of someone with his history of substance abuse, who admitted to being under the influence of drugs and alcohol at the time of the event in question, do not even evidence minimal indicia of reliability and trustworthiness. Additionally, defendant asserts that when he spoke to law enforcement in 2001, he was on "psychotopic [ sic ] medication."

Defendant also contends that his most inculpatory statements to law enforcement were effectively coerced, and thus even less trustworthy than some of his earlier statements because he was threatened with his half-brother's incarceration if he did not tell them what they wanted to hear. Additionally, he claims that his statements

We conclude the corpus delicti rule was satisfied here and that the jury properly considered all of defendant's independent statements regarding his participation in the robbery and murders. To the extent there was inconsistency among defendant's various statements, the court properly left it to the jury to decide the veracity of each statement. This is true whether defendant characterizes some of his statements as voluntary, internalized (from a susceptible or weak defendant), compliant (occurring during police interrogation), false confessions-or as the product of a memory rendered unreliable by years of substance abuse, by sleep deprivation, or by psychotropic drugs. Similarly, we find, despite defendant's argument to the contrary, that his statements contained sufficient indicia of reliability to satisfy what we have described as the Eighth Amendment's "heightened reliability standards for both guilt and penalty determinations in capital cases." ( People v. Cudjo (1993) 6 Cal.4th 585 , 623, 25 Cal.Rptr.2d 390 , 863 P.2d 635 .)

2. Alleged Due Process Denial

a. Background

The prosecution's trial theory was that four people were involved in the T-shirt store murders: Defendant, Loomis, Romero, and defendant's half-brother, Leatham. The prosecution's case was that defendant's videotaped confessions supported the theory that defendant was the principal actor who had robbed and set fire to the victims.

To support his defense that he was not responsible for robbing, shooting or burning the victims, defendant sought to present the testimony of Amber Renteria-Kelsey (Renteria) who made two statements to Griego (one on May 26, 1999, and one on October 5, 1999) that she had overheard Loomis admit to another gang member

During the trial's guilt phase and outside the presence of the jury, defense counsel stated that he intended to call Renteria as a defense witness. Renteria was in custody for an unrelated case and was present in court. The court appointed supervising deputy public defender Mark Shoup to represent Renteria and to determine if her testimony might tend to incriminate her such that she might assert her Fifth Amendment right to remain silent. Later, when the court asked if Renteria's testimony might expose her to criminal

b. Discussion

Defendant asserts that Renteria's refusal to testify and thereby admit she lied to Griego about defendant's involvement in the T-shirt store murders denied him his due process right to present a defense under the Sixth Amendment. We disagree.

The state and federal constitutions provide that a criminal defendant has the right "to have compulsory process for obtaining witnesses in his favor." ( U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) The federal compulsory process right is "so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment," making it applicable to the states.

Defendant claims the prosecutor committed prejudicial misconduct when he told Shoup that Renteria could be charged as an accessory under section 32, and that he would not grant Renteria immunity from prosecution on the ground that her statements

3. Alleged Fifth Amendment Privilege

Apart from asserting a compulsory process violation, defendant also claims the court erred in granting Renteria's Fifth Amendment privilege because the statute of limitations to charge her had run on any violation of section 32 before she was to be called as a witness. Defendant asserts that the statute of limitations started running on a section 32 violation in October 1999, when Renteria sent her first retraction letter to the police and not when she retracted her inconsistent statements in October 2003.

The Attorney General responds that defendant forfeited this argument because he did not raise it in the trial court. Defendant effectively concedes he never raised the claim in the trial court but contends he did not forfeit his claim because it is based on "undisputed facts" contained in one of Griego's reports that states: "Renteria later (on 10-29-99) sent me a letter at the Barstow Police Department 'retracting' her statements." (See Williams v. Mariposa County Unified School District (1978) 82 Cal.App.3d 843 , 850, 147 Cal.Rptr. 452 [if facts supporting new contention on appeal are undisputed, court may entertain the contention as a question of law on those facts].) Defendant also contends that although defense counsel might have been aware of Renteria's 1999 retraction letter and yet failed to raise it as a defense to her exposure to criminal liability, the prosecution team, including Griego, "had an independent duty to make sure that the trial court was made aware of Renteria's earlier retraction." Defendant's claims fail. Even if we were to assume that Renteria's testimony would have assisted defendant's defense, and that he did not forfeit his claim regarding the 1999 retraction letter, he has stated no constitutional or prosecutorial violations.

Our Evidence Code implements the privilege as follows: "Whenever the proffered evidence is claimed to be privileged under Section 940 [privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege." ( Evid. Code, § 404.)

We conclude that the federal and state constitutions supported the trial court's decision to grant Renteria her Fifth Amendment privilege whether or not the court was aware of the 1999 retraction letter that Renteria had sent to Griego. (See Seijas , supra , 36 Cal.4th at p. 304, 30 Cal.Rptr.3d 493 , 114 P.3d 742 .) On review of a witness's successfully invoking the Fifth Amendment privilege, we look only to see whether it is evident from the "implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." ( Hoffman , supra , 341 U.S. at pp. 486-487, 71 S.Ct. 814 .) In fact, a trial court may deny Fifth Amendment privilege only if it is " 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate." ( Id. at p. 488, 71 S.Ct. 814 , italics omitted.) Our state jurisprudence is equally strong in its protection of the right and holds that the Fifth Amendment does not allow "the court to assess the likelihood of an actual prosecution in deciding whether to permit the privilege." ( Seijas , supra , 36 Cal.4th at p. 305, 30 Cal.Rptr.3d 493 , 114 P.3d 742 ; see Evid. Code, § 404.)

Renteria and her counsel could reasonably have concluded that Renteria would be subject to criminal prosecution under section 32 for her statements to Griego about what she overheard if compelled to testify. Section 32 subjects a person to criminal liability for aiding a principal in

We also find that the prosecution did not engage in misconduct in failing to raise Renteria's 1999 retraction earlier during the trial court's colloquy about Renteria's asserted Fifth Amendment privilege. We have held that "[a] prosecutor's conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the

b. Whether Penal Code section 190.3 is arbitrary and capricious

We have repeatedly rejected the claim that section 190.3, factor (a), which requires the jury to consider as evidence in aggravation the circumstances of the capital crime, arbitrarily and capriciously imposes the death penalty under the Fifth,

Defendant also asserts that the high court's decision in Hurst v. Florida (2016) 577 U.S. ----, 136 S.Ct. 616 , 193 L.Ed 2d 504 ( Hurst ), which invalidated Florida's capital sentencing scheme, also invalidates California's capital sentencing scheme. Like Ring , Hurst requires a jury to find each fact necessary to impose the death sentence. ( Ibid .) Further, defendant claims that Hurst makes it clear that our sentencing determination violates the Sixth Amendment because it collapses "the weighing finding and the sentence-selection decision into one determination and labeling it 'normative' rather than factfinding" by a jury beyond a reasonable doubt. It does not. ( People v. Rangel (2016) 62 Cal.4th 1192 , 1235 & fn. 16, 200 Cal.Rptr.3d 265 , 367 P.3d 649 .) Our cases have consistently rejected similar arguments. ( Ibid. ) The California sentencing scheme is materially different from that in Florida, which, in contrast to our death penalty statutes, mandates that the trial court alone must find that sufficient aggravating circumstances outweigh the mitigating circumstances. ( Hurst , supra , 577 U.S. ----, [136 S.Ct. at p. 622] ; see

We have never held that the Sixth and Fourteenth Amendments require a jury instruction regarding the burden of proof in capital sentencing. (See People v. Williams (1988) 44 Cal.3d 883 , 960, 245 Cal.Rptr. 336 , 751 P.2d 395 .) As the Attorney General observes, the only burden of proof applicable at the penalty phase "relates to aggravating evidence of other crimes under factor (b) [ People v. Foster (2010) 50 Cal.4th 1301 , 1364, 117 Cal.Rptr.3d 658 , 242 P.3d 105 ], and aggravating evidence of prior convictions under factor (c). (See [People v.] Williams , supra , [ (2010) ] 49 Cal.4th [405] at p. 459 [ 111 Cal.Rptr.3d 589 , 233 P.3d 1000 ].)" Otherwise, our cases do not require that a burden of proof be applied to aggravating evidence. (See

Contrary to defendant's view, it is unnecessary for the trial court to instruct the jury that if it determines mitigation outweighs aggravation, it must return a verdict of life without the possibility of parole. ( People v. Kopatz (2015) 61 Cal.4th 62 , 95, 186 Cal.Rptr.3d 797 , 347 P.3d 952 ( Kopatz ).)

vi. Jury Unanimity on mitigation

We continue to reject the contention raised here that a jury must be instructed regarding the standard of proof and the lack of a need for jury unanimity as to mitigating circumstances. ( Kopatz , supra , 61 Cal.4th at p. 95, 186 Cal.Rptr.3d 797 , 347 P.3d 952 , citing People v. Streeter (2012) 54 Cal.4th 205 , 268, 142 Cal.Rptr.3d 481 , 278 P.3d 754 .)

vii. Presumption of life instruction

Consistent with our cases, we affirm the view that the trial court, contrary to defendant's argument, is not required to instruct the jury that the law favors a presumption of life in the penalty phase. (See People v. Arias (1996) 13 Cal.4th 92 , 190, 51 Cal.Rptr.2d 770 , 913 P.2d 980 .)

viii. Failure to delete inapplicable sentencing factors

As we held in People v. Cook (2006) 39 Cal.4th 566 , 618, 47 Cal.Rptr.3d 22 , 139 P.3d 492 , "[th]e trial court has no obligation to delete from CALJIC No. 8.85 inapplicable mitigating factors." We decline to reconsider our decision as defendant requests.

ix. Failure to instruct that statutory mitigating factors are relevant solely as potential mitigators

We also decline to reconsider our conclusion that the jury need not be advised which sentencing factors in CALJIC No. 8.85 are aggravating and which are mitigating. As we have held, the court does not need to define the statutory factors because the "nature of those factors is self-evident within the context of each case." ( People v. Hillhouse (2002) 27 Cal.4th 469 , 509, 117 Cal.Rptr.2d 45 , 40 P.3d 754 .)

e. Inter-case Proportionality Review

As we have stated before, neither California's death penalty law nor the federal

f. Equal Protection and California's Capital Sentencing Scheme

Consistent with our precedent, California's capital sentencing scheme does not, as defendant contends, violate the Equal Protection Clause of the federal Constitution because capital defendants and noncapital defendants "are not similarly situated." (

For the foregoing reasons, we affirm the judgment in its entirety.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.