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People v. Rizo4/24/2002
d to be from a .25 caliber bullet.
Two bystanders, Pablo Lopez and Richard Deharo, sustained nonfatal gunshot wounds during the shooting. Those incidents were the bases for the two assault charges on which Ivan, Salvador, and Cesar were convicted.
A search of defendants' residence produced live small caliber (possible .22 or .25) ammunition, .38 caliber ammunition, expended .22 caliber casings, a .22 caliber handgun, and a loaded .25 caliber handgun. The .22 caliber weapon was designed to fire blanks only. The .25 caliber weapon was determined to be the weapon that fired the shot that killed Galvan.
One jury (the red jury) heard the case against Ivan, while the other (the blue jury) heard the case against the remaining defendants. In a police interview, a transcript of which was played for Ivan's jury, Ivan initially denied he had a gun during the fight. Later, he said he had a .25 caliber handgun which he did not know was loaded. He was hitting the people he was fighting with the gun, and it went off.
In a police interview of Jesus, a transcript of which was played for the blue jury and admitted only against Jesus, he admitted participating in the fight but denied shooting or intending to kill Galvan. Jesus said Carlos Reyes, a cousin who was assisting defendants in the fight, most likely shot Galvan.
DISCUSSION
We discuss defendants' contentions under the headings: I. Jury Selection; II. Evidentiary Issues; III. Instructional Issues; IV. Sentencing Issues; and V. Cumulative Error. Each defendant has filed a separate brief, though some of the arguments overlap. Certain defendants also state generally that they join in the contentions made in the briefs of other defendants, some stating they do so to the extent those arguments are favorable and relevant to them.
California Rules of Court, rule 13 provides that an appellant may join in a brief or adopt a brief by reference. However, we are unaware of any authority requiring a reviewing court to determine which arguments are favorable or relevant to a defendant who joins generally in other defendants' briefs. Rather than attempt to make that determination, we will simply refer to "defendants" when addressing the various arguments.
Defendants also note the Attorney General has not responded to certain of their arguments. Defendants therefore request that we order the Attorney General to do so, to preserve defendants' right to file a reply brief on those issues. Defendants assert that otherwise this court's opinion would violate Government Code section 68081, which prohibits a court from deciding a case "based upon an issue which was not proposed or briefed by any party to the proceeding" unless it first allows supplemental briefing.
Although we do not commend the Attorney General's failure to address defendants' arguments, there is no requirement that the People respond to every argument in an appellant's brief. (People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Nor does Government Code section 68081 require a response from the Attorney General before we may decide an issue. As noted, that section prohibits a decision only on an issue "not proposed or briefed by any party." (Italics added.) There is no requirement that both sides have briefed the issue. We therefore decline defendants' request to order a response from the Attorney General.
I. JURY SELECTION
Defendants challenge the prosecutor's excusal of African-American panelists from both juries under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986)
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