SUPREME COURT COpy

SUPREME COURT COpy

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent,

v. GABRIEL CASTANEDA,

Defendant and Appellant.

CAPITAL CASE S085348

San Bernardino County Superior Court No. FWV15543 The Honorable Mary E. Fuller, Judge

RESPONDENT'S BRIEF

DANE R. GILLETIE Chief Assistant Attorney General

GARY W. SCHONS Senior Assistant Attorney General

HOLLY WILKENS Deputy Attorney General

MARVIN E. MIZELL Deputy Attorney General State Bar No. 190786

110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3040 Fax: (619) 645-2271 Email: Marvin.Mizell@doj.

Attorneys for Plaintiff and Respondent

TABLE OF CONTENTS

STATEMENT OF THE CASE GUILT PHASE STATEMENT OF FACTS

Prosecution Case-In-Chief

Events Leading Up To Castaneda's Murder Of Colleen Kennedy

The Morning Of Monday March 30, 1998, When Castaneda Murdered Colleen Kennedy The Investigation Into The Murder Of Colleen Kennedy On March 30, 1998

The Autopsy On April 1, 1998 The Montclair Police Department Calls For Assistance From The Sheriff's Department And Other Law Enforcement Agencies To Investigate Colleen Kennedy's Murder In April 1998 After More Investigation, Castaneda Is Arrested In May 1998 For Murdering Colleen Kennedy Further Evidence Of Castaneda's Guilt After May 1998 Defense Prosecution Rebuttal

PENALTY PHASE STATEMENT OF FACTS

Defense

Psychological And Family History Evidence

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Testimony From Castaneda's Associates, Friends And Family

Prosecution

Psychological Evidence

Castaneda's Prior Criminal Activity Involving His Use Or Attempted Use Of Force Or Violence, Or His Express Or Implied Threat To Use Force Or Violence

Castaneda, As A Teenager, Twice Hits A Rival Gang Member With A Brick

Castaneda's Violence Against Ibarra In 1989 And 1990

Shank And Syringe Found In Castaneda's Jail Cell On June 6, 1999

Castaneda's Felony Convictions

Anned Robbery In 1991

Burglaries In 1980 And 1987

GUILT PHASE ARGUMENTS

I. CASTANEDA'S RIGHTS TO PRESENCE WERE NOT VIOLATED BY HIS ABSENCE FROM TWO BENCH CONFERENCES DURING JURY VOIR DIRE

A. Castaneda's Right To Presence Was Not Violated Under Federal Constitutional Law

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B. Castaneda's Right To Presence Was Not Violated Under State Constitutional And Statutory Law

II. THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY ON SECOND DEGREE MURDER AS A LESSER INCLUDED OFFENSE OF FmST DEGREE MURDER

III. THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER

A. Any Error In Failing To Instruct On Voluntary Manslaughter Was Invited Error

B. The Trial Court Did Not Err Because There Was No Substantial Evidence Of Voluntary Manslaughter

IV. IF THE TRIAL COURT ERRED BY GIVING THE JURY AN IMPLIED MALICE INSTRUCTION, THE ERROR WAS HARMLESS UNDER ANY STANDARD BASED ON OTHER INSTRUCTIONS AND THE OVERWHELMING EVIDENCE OF EXPRESS MALICE CONSTITUTING INTENT' TO KILL FOR FIRST DEGREE MURDER

V. THE EVIDENCE WAS SUBSTANTIAL TO SUPPORT THE KIDNAPPING CONVICTION AND SPECIAL CIRCUMSTANCE TRUE FINDING

VI. THE KIDNAPPING CONVICTION AND SPECIAL CmCUMSTANCE SHOULD BE

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REVERSED BECAUSE OF THE GIVING OF AN INAPPLICABLE DEFINITION OF MOVEMENT FOR A SUBSTANTIAL DISTANCE

VII. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON FALSE IlVIPRISONMENT AS A LESSER INCLUDED OFFENSE OF KIDNAPPING, BUT DEFENSE COUNSEL INVITED THE ERROR

VIII.

SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S BURGLARY CONVICTION AND THE BURGLARY SPECIAL CIRCUMSTANCE TRUE FINDING

IX. SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S SODOMY CONVICTION AND THE SODOMY SPECIAL CIRCUMSTANCE TRUE FINDING

X. SUBSTANTIAL EVIDENCE SUPPORTS CASTANEDA'S ROBBERY CONVICTION AND THE ROBBERY SPECIAL CIRCUMSTANCE TRUE FINDING

XI. THE EVIDENCE DID NOT SUPPORT INSTRUCTION OF THE JURY ON GRAND THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY

XII. SUBSTANTIAL EVIDENCE SUPPORTS THE TRUE FINDINGS TO THE SPECIAL CIRCUMSTANCE ALLEGATIONS BECAUSE CASTANEDA'S COMMISSION OF THE FELONIES W AS NOT MEREL Y INCIDENTAL TO THE MURDER

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