People v. Guillen (227 Cal. App. 4th 934, 2014)

Opinion

O’LEARY, P. J.

On September 14, 2006, John Derek Chamberlain was arrested for possession of child pornography. Twenty-one days later, inmates in Theo Lacy jail in the City of Orange (TLJ) beat Chamberlain to death because they believed he was a child molester. As waves of inmates hit, kicked, stomped, and did other abhorrent things to Chamberlain over the course of about 30 minutes, three Orange County Sheriff’s Department (OCSD) personnel sat in an enclosed guard station approximately 68 feet away. Chamberlain suffered injuries consistent with a high-velocity car accident, including fractures to 21 of his 24 ribs. OCSD was the lead investigating agency and interviewed hundreds of people. After the investigation, Orange County Grand Jury (Grand Jury) proceedings were convened and Grand Jury indictments were returned. As a result of the Grand Jury proceedings, the Orange County District Attorney (OCDA) issued an investigative report (the DA Report) and eventually filed a consolidated and amended information.

A jury convicted Miguel Angel Guillen, Jared Louis Petrovich, Garrett Eugene Aguilar, Stephen Paul Carlstrom, Jr., and Raul Villafana of second degree murder of Chamberlain. We refer to them collectively as appellants or defendants depending on the context and in the singular by their last names. A short summary of the issues presented and our conclusions is as follows:

(1) Appellants argue insufficient evidence supports their second degree murder convictions under the prosecution’s three theories of second degree murder. We conclude sufficient evidence supports appellants’ convictions for second degree murder under each of the prosecution’s theories of second degree murder.

(2) Appellants contend the trial court erred when it denied their motion to dismiss for outrageous government conduct. We conclude the court properly denied the motion to dismiss because the government’s conduct was not so outrageous to warrant dismissal.

(3) Appellants assert the court committed five evidentiary errors. We conclude the court committed two evidentiary errors, but appellants were not prejudiced by the errors.

(4) Appellants argue the court committed one instructional error. We conclude the court did not err in failing to instruct the jury on one theory of involuntary manslaughter because insufficient evidence supported giving the instruction.

(5) Appellants contend that after an alternate juror replaced an ill juror, the court instructed the jury to begin deliberations anew but through its statements erred in telling the jury to resume deliberations where it ended. We conclude the court erred in so instructing the jury, but appellants were not prejudiced by the error.

(6) Appellants assert the court erred in imposing fines. We conclude the court erred in imposing fines on Aguilar and Petrovich, and their fines will be reduced.

(7) Appellants claim there was cumulative error. We conclude the court’s two evidentiary errors and one quasi-instructional error during this lengthy trial do not amount to cumulative prejudicial error requiring reversal.

We affirm the judgments as modified.

FACTS

I. Facts of the Offense

A. Theo Lacy Jail’s Architecture

OCSD operates three jails in Orange County, including TLJ, a jail that houses both those charged with crimes and those convicted of crimes. TLJ inmates are housed in either modules, which are individual cells, or barracks, which are dormitory style. The barracks are identified by a distinct letter. “F Barracks” is divided in half with a wall separating it into equal triangles identified as “F Barracks West” (F West) and “F Barracks East” (F East); they are mirror images of each other. A diagram of the first floor of F West as it existed at the time of Chamberlain’s death, which was a trial court exhibit, is attached as appendix A. Certain modifications to F Barracks have occurred since the time of the incident and are noted hereafter. At the time of the incident, each half of F Barracks contained a dormitory-style housing unit for 146 inmates, totaling 292 minimum security inmates.

On F West’s ground floor are dormitory cubes A through H situated counterclockwise, two bathrooms, and a day room. The ground floor bathroom between cubes B and C has a hot water faucet. There are two staircases leading to the second floor where cubes I through P are similarly situated, along with two additional bathrooms. At the time of the incident, the dormitory cubes had four-foot privacy walls but no doors or bars. Some of the cubes are larger than other cubes and protrude farther into the day room, creating spots that are not visible from the guard station. Inmates are issued a uniform, shoes, toiletries, pencil and paper, plastic spoon, and a white cup.

The day room is a large open area where inmates have access to telephones, television, games, cards, and tables. The day room time is scheduled each day and occurs in one to two-hour blocks. It is common for both sides of F Barracks to use the day room and restroom facilities simultaneously. During day room time, all 292 inmates can roam their respective sides.

In the center of F Barracks’ dividing wall is a hexagonal-shaped elevated guard station known as “the bubble.” Access to the guard station is through a door located in a corridor that runs inside the dividing wall and connects to both F West and F East, as well as to the barracks’ exterior. Half of the guard station’s windows face F West and the other half face F East. The guard station windows are opaque, allowing one to view inside only if it is illuminated. During day room time, F Barracks can get very loud; inside the guard station it is loud but “somewhat muted.” There are a television and chairs in the guard station. The guard station television has the same feed as the inmate television. At the time of Chamberlain’s death, there were no surveillance cameras. located in F Barracks. There was a camcorder in the guard station that a deputy could use to record unusual incidents.

Because some of the cubes are larger than other cubes, the view of some of the cubes from the guard station is limited. For example, the first floor C cube extends farther than D cube, which from the guard station creates a blind spot on the east side of D cube. From the guard station, a guard can only see part of the top bunk and the top half of an average-size man visible over the privacy wall of D cube. In addition, a person seated in the guard station has a limited view of F Barracks, especially of the first floor, because it is hard to see over the counter top. The privacy walls exacerbated the limited view at the time of the incident.

At the time, F Barracks was supervised by two deputy sheriffs and a sheriff special officer (SSO). The deputy sheriffs were in charge of supervising and escorting inmates and were to walk the F Barracks floor every 30 minutes unless assigned to other duties. The SSO remained in the guard station, carried out clerical duties, and did not have direct contact with the inmates. The F Barracks staff monitored inmates using “mod cards” that contained an inmate’s photograph and other identifying information. Sometimes information such as a sex crime charge would be highlighted on a mod card.

B. TLJ Culture

Inmates at TLJ, as well as at other Orange County jails, form race-based groups called CARs, classification according to race. The CAR system is an inmate-generated hierarchy along racial lines that has existed since the 1950’s. In October 2006, the CAR system was present in all Orange County jails and the majority of California jails.

In F West there were three CARs, each with its own management hierarchy. The three CARs were the Woods, the Paisanos, and the South-Siders. The Woods were the Caucasian inmates, the Paisanos were the Mexican national inmates, and the South-Siders were the Hispanic-American inmates; they were primarily gang members and were the most dominant CAR. Most inmates were members of one of the CARs. Each CAR had a leader (a “shot caller”), a second in command (a “right-hand man”), an enforcer (a “torpedo”), and a person waiting in command (a “mouse”). There was also a “house mouse” for the entire barracks who was in charge of cleaning the barracks, distributing commissary slips, and communicating with the deputies about the barracks’ needs. Inmates were aware of who occupied the roles and when a change occurred after someone left the barracks.

The shot caller and the right-hand man were responsible for determining which inmates were disciplined (or “taxed”). Taxing was a form of punishment that included assaults, cleaning duties, squats, or providing items from the commissary. A common form of taxing was “the wall” where two inmates would hold an inmate against a wall for a specified period of time and hit him below the neck and above the waist while the inmate submitted to the punishment. The shot caller authorized the taxing of inmates who did not follow the jail rules and inmate rules. The shot caller used torpedoes to carry out the taxings.

A CAR mouse would typically approach a new inmate and ask to see the inmate’s court documents (or “paperwork”) to learn the inmate’s charges. It was common for inmates to assault other inmates with “sensitive charges” such as child molesters (called “Chesters”) and informants (called “Rats”). If inmates became suspicious about an inmate’s charges, they attempted to find out the charges often with the help of a third party by checking a public Web site or calling the jail’s public information line. All the CARs viewed the assault of inmates perceived to be child molesters or informants favorably. Inmates who failed to produce their paperwork were taxed.

For the Woods on October 5, 2006, Petrovich was the shot caller, Aguilar was the right-hand man and torpedo, and Carlstrom was the mouse. Petrovich and Aguilar had recently assumed their positions within the Woods. For the Paisanos on that date, Villafana was the shot caller, Salvador Garcia (Chava) was the right-hand man, and Guillen was the mouse. That same day, Deputy Kevin Taylor, Deputy Jason Chapluk, and SSO Philip Le were assigned to F Barracks. Taylor was in command of F Barracks.

OCSD does not condone deputies utilizing the CAR system in the course of their duties. Although inmates tried to hide the workings of the CARs from deputies, deputies, including Taylor and Chapluk, are aware of the CAR management structure. However, deputies are not supposed to authorize or sanction CARs. Deputies are trained that no inmate should have more power than any other inmate. Deputies are trained to treat all inmates equally and not allow any particular inmate to believe he is exempt from the rules. However, because of the number of inmates, deputies used the shot callers to control the inmates because the inmates did not always follow the deputies’ orders but they feared the shot callers. Taylor met with the shot callers almost daily and used them to control the barracks, discuss issues, and obtain information. When the deputies had a problem with an inmate, they would likely address the problem with a shot caller or other CAR representative. The deputies would tell the shot caller that a" particular inmate was not “staying with the program”—i.e., the inmate was making the deputies’ job difficult. Deputies did this knowing the shot caller would tax the inmate. Shot callers generally complied with the deputies’ directives and were rewarded with additional day room time or extra food. The CARs would have meetings in the day room to disseminate information. The deputies were more tolerant of rule violations by those higher up in the CAR management structure than by other inmates, including “cube hopping,” which is moving from cube to cube.

C. Chamberlain’s Arrest & Detention

' On September 14, 2006, Chamberlain was arrested for possession of child pornography and booked into Santa Ana jail. On September 18, 2006, Chamberlain was arraigned. On October 2, 2006, Chamberlain appeared in court and his trial was scheduled for October 24, 2006. His defense counsel was Case Barnett. Because of the nature of the charges, Chamberlain was brought into court by himself and not given paperwork to take to jail. Chamberlain was instructed that his charges were sensitive and to not tell other inmates.

On October 3, 2006, Chamberlain was transferred to TLJ and assigned to F West. Carlstrom, the Woods mouse, approached Chamberlain, and asked him for his paperwork but Chamberlain said he did not have any. Chamberlain told other inquiring inmates he was in custody for violating a restraining order. Later that day, Chamberlain called his girlfriend to tell her that he was worried because inmates were asking him why he was in custody. Chamberlain’s girlfriend called Barnett and left him a message stating Chamberlain was afraid because inmates were asking for his paperwork. She left a second message on October 4, 2006.

The following day, Barnett received the message, called TLJ, and spoke with Deputy Adewale Olukoju. Olukoju said they would speak with Chamberlain and would consider moving him. Olukoju called Deputy Thomas Sramek in classification, and Sramek called F Barracks. Sramek told Le that the deputies needed to speak with Chamberlain and advise Sramek of the outcome of their conversation. About 2:30 p.m., Taylor and Chapluk returned to the guard station, and Le told them about Sramek’s telephone call. After Taylor and Chapluk performed a mandatory count of the inmates, they opened the day room at 3:00 p.m.

Over the barracks address system, Le told Chamberlain to go to the barracks door. The deputies escorted Chamberlain through a door into the corridor. Neither deputy knew Chamberlain because it was their first day of work that month. Taylor told Chamberlain about the call and asked him if he feared for his safety. Chamberlain explained inmates were pressuring him to produce his paperwork. Taylor asked Chamberlain the date of his next court appearance, and he answered October 24. Taylor asked Chamberlain if he was comfortable remaining in F Barracks until then. Chamberlain said he was because inmates were not expecting him to produce his paperwork until that time. The deputies told Chamberlain that moving him would not benefit him because inmates would ask for his paperwork in any housing unit. The deputies did not intend to move Chamberlain because they did not believe it would protect him. However, deputies had the authority to request classification place him into protective custody and had the authority to place him in a holding cell while that request was being processed. Taylor suggested Chamberlain tell inmates that deputies informed him about a death in his family. Chamberlain returned to F West. The conversation lasted about 10 minutes.

About 3:00 p.m., Taylor called Sramek. Taylor said Chamberlain did not have paperwork to show inmates, he would not get it until he returned to court on October 24, and he felt safe until then. Sramek recorded in Chamberlain’s records that Taylor spoke with him and he felt safe until his court date. Based on Taylor’s report, Sramek decided not to move Chamberlain. On October 5, 2006, there were nine inmates with sensitive sex-related charges housed in F Barracks in addition to Chamberlain. Three were housed in F West, and six were housed in F East.

D. Inmate Assault on Chamberlain

Day room time ended at 4:00 p.m. Inmates had “chow” from 4:00 p.m. to 5:00 p.m., and returned to their bunks to wait for day room time to start. The day room opened at 5:00 p.m., and the inmates poured out of their cubes. Inmates watched a baseball game on the television, played cards and table tennis, read newspapers, used the telephones, and showered.

Andrew Corral, a South-Sider, was on his bunk in D cube playing cards when Aguilar told him to leave because they had business to conduct. Corral moved to the other side of D cube. Corral overheard Petrovich tell Aguilar they were going to beat a “Chester” who admitted he likes them young, and Aguilar left D cube. Petrovich, the Woods shot caller, remained in D cube, while Villafana, the Paisanos shot caller, and “Stretch,” the SouthSiders shot caller, arrived in D cube. Corral heard them say they were going to beat and rape Chamberlain. They said there was an incentive of 10 commissary items to anyone who raped him. Aguilar went upstairs to J cube to bring Chamberlain to D cube. Aguilar escorted a fully dressed Chamberlain to D cube. As they entered D cube, Aguilar pushed Chamberlain to the floor and the attack began.

Multiple witnesses observed about four groups, totaling at least 30 inmates, enter D cube and assault Chamberlain for about 20 to 45 minutes.

Luis Palacios, a Paisano, was watching a baseball game about 30 feet away from D cube and saw inmates going in and out of D cube, three or four groups of three or four inmates, taking turns hitting and kicking Chamberlain. Palacios saw Petrovich hit Chamberlain first. Palacios saw Aguilar grab hold of a bunk, elevate himself about three feet, and stomp on Chamberlain. Aguilar also hit him. Palacios described Aguilar as “ruthlessness.” Palacios also saw Guillen enter D cube, get on his knees, and make a couple downward striking motions during the beginning or middle of the attack. Guillen was in D cube for at least two minutes. The noise from the barracks muffled Chamberlain’s screams and cries for help. Palacios went upstairs and when he looked down he saw Chamberlain trying to crawl under a bunk as inmates continued to hit and kick him. Inmates pulled down Chamberlain’s pants, spanked him with a shoe, and spit on him. After Petrovich told Palacios to “keep walking don’t look down,” Palacios returned downstairs. Palacios heard an inmate say Chamberlain “passed out.” Aguilar threw water on Chamberlain to wake him up and beat him more. Palacios saw Villafana make multiple trips between working out in E cube and going into D cube.

Robert Mayfield witnessed four waves totaling at least 12 inmates assault Chamberlain; the first few waves each lasted a couple minutes but the last wave lasted a “ridiculous” amount of time. The first wave was the Woods. Aguilar struck downward with his fists and used the bunk for leverage as he stomped up and down on something behind a short wall. Aguilar and other inmates put rubber-soled jail shoes over their hands before hitting Chamberlain. Carlstrom held onto the bunk while he violently jumped up and down on something behind the wall. The second wave included Villafana and two South-Siders. Villafana threw two punches with a closed fist. Aguilar, and another inmate Carlstrom handed water to, threw water on Chamberlain to wake him up.

Corral, who was still in D cube, saw inmates hit Chamberlain, spill hot coffee on him, urinate on him, and insert a spoon in his rectum. He saw Villafana hitting and kicking Chamberlain on his head and torso. He also saw Aguilar hitting, kicking, and stomping Chamberlain. After Corral left D cube, he saw Aguilar repeatedly exit D cube, speak with Petrovich, and return to D cube. Aguilar took Chamberlain’s clothes outside of D cube when the assault ended.

Richard Reilly was upstairs and saw Carlstrom forcefully kick Chamberlain at least once. He also saw Aguilar kick Chamberlain. Another inmate looked at Reilly and told him to mind his own business and keep moving. When he returned to his cube upstairs, he noticed inmates wetting their shoes. They attempted to get his shoes wet as well.

Jeffery Hurley sat at a table outside B cube and could hear the assault on Chamberlain. Hurley saw Aguilar walk out of D cube, shake hands with Christopher Teague, another Woods torpedo, and wince. Teague said, “That’s why I try to use my feet instead of my hands.”

E. Aftermath

Chapluk returned to the guard station about 6:30 p.m. Chapluk faced east while he completed paperwork, and Le faced the computer. Taylor sat in a chair facing west and facing the television. Taylor’s view of F West’s first floor was obstructed.

Aguilar stood on a table and waved a white cloth to get the deputies’ attention. Le stated there was an inmate in F West trying to get their attention. That was the first time a deputy entered F West since about 2:00 or 2:30 p.m. Taylor and Chapluk entered the barracks and asked what the problem was. Pursuant to standard procedure, Le used a video camera to record F West until the tape ended and he recorded over it.

Aguilar told deputies there was a man down in D cube and said, “he told us his charges and it got out of hand.” Taylor and Chapluk entered D cube and saw an unconscious Chamberlain dressed only in his boxers with his back to the wall; he did not appear to be breathing or to have a pulse. Chamberlain was soaking wet, and there was water everywhere. Deputies called for medical assistance. Taylor ordered the inmates to return to their bunks, and ordered D cube inmates to sit at the day room tables. Deputies pulled Chamberlain away from the wall, removed food to clear his airway, and began cardiopulmonary resuscitation (CPR). Additional deputies arrived with an artificial manual breathing unit and defibrillator. Deputies pulled Chamberlain out of the water, used the defibrillator, and performed CPR until the paramedics arrived. When the paramedics took over, Chamberlain had no heart rate. Chamberlain was transported to the hospital where he was eventually pronounced dead at 7:33 p.m.

F. Investigation

Investigators interviewed all 146 F West inmates that evening and the following morning, and some multiple times over the following weeks and months. Investigators interviewed 30 or more additional people, including over 20 OCSD personnel.

1. October 5, 2006

Immediately after the assault, Deputy Michael Lacey noticed Aguilar’s pants and shoes were wet. Aguilar said he was in the shower getting water to revive Chamberlain. Aguilar’s hands did not appear to be red or swollen. Later, Chamberlain’s blood was found on the side of Aguilar’s left shoe. Lacey found a pair of wet shoes in B cube under bunk 12. Carlstrom admitted they were his shoes.

Later that night, investigators interviewed Carlstrom, who said he did not know much. Carlstrom said he was playing dominoes when he heard a commotion, went to D cube, and saw Chamberlain lying on the ground bleeding. He thought someone was being taxed. A group of people were standing around him yelling profanity and “baby raper.” Carlstrom went back to playing dominoes. He estimated the assault lasted “a good 15 minutes.” He did not see anyone hit Chamberlain and denied any involvement. Carlstrom said Chamberlain was a loner, and he did not know his charges.

2. October 6, 2006

The next day, deputies moved Petrovich to Module L. Deputy Brett Darnell saw Petrovich communicating with an inmate and turned on the intercom to listen to their conversation. Petrovich told the inmate he was in F Barracks and “some guy got killed over there yesterday for being a child molester.” The inmate asked Petrovich if he was involved and he replied, “Yeah.”

Investigators interviewed inmate Jerry Ibarra. Ibarra stated he was playing cards when he saw people running into D cube and heard cheering “when they ma[d]e a hit,” but he did not intervene because he was scheduled to be released. He heard there was “a man down” and walked to D cube, but he could not see anything. Someone asked him if he was a doctor because he had previously provided first aid to another inmate. He did not see anyone being assaulted.

Investigators interviewed inmate Robert Mayfield, who reviewed photographs of all 145 inmates. He identified 10 inmates as being involved in the attack on Chamberlain, including Carlstrom (grabbed the bunk and jumped up and down), Aguilar (repeatedly kicked and punched Chamberlain), and Daniel Costa (violently kicked Chamberlain three times field goal style).

Investigators interviewed Villafana. Villafana stated he was in the showers for 20 to 30 minutes and did not see anything. Villafana later testified to the Grand Jury he was working out in H cube with Michael Ayala.

Investigators also interviewed Guillen, who denied any knowledge of the incident or who was involved. Guillen said he was playing cards during the assault. He saw many people going in and out of D cube and heard noises, but he tried to stay away. He did not have any problems with Chamberlain and did not know who would want to hurt him. Chamberlain’s blood was found on Guillen’s left shoe. Guillen was released from custody in December 2006 and was deported to Mexico.

Investigators interviewed Carlstrom again and advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). After repeating his story he was playing dominoes, Carlstrom claimed he was the house mouse and asked Chamberlain for his paperwork when he first arrived but he did not have it. Carlstrom also stated Petrovich was the Woods “rep” and would have given the “green light” to tax Chamberlain, but he did not see Petrovich hit or kick Chamberlain. He stated, “Everybody had a chance to have a turn” hitting and kicking Chamberlain. Carlstrom admitted he kicked a hunched over Chamberlain once in the back or butt sending him towards the wall. He admitted that when he kicked Chamberlain, “He was pretty messed up.” Carlstrom denied he hit Chamberlain.

After investigators advised Aguilar of his Miranda rights, they interviewed him. Aguilar told investigators that he was in J cube when he overheard Chamberlain tell an inmate that he was in custody because of a restraining order. Aguilar went to I cube and heard rumors Chamberlain liked young girls. He went to L cube and heard a White guy and three Mexicans discuss how Chamberlain was going to be “put ... on the wall” and taxed. Aguilar went downstairs and saw inmates gathering. After he went to the downstairs shower and started to undress, two Mexicans entered and told him Chamberlain was in bad shape. After Aguilar told a group of inmates who were standing in front of D cube to “fan it out,” Aguilar went into D cube and saw Chamberlain slumped against the wall. He ran to the showers, got two cups of water, returned to D cube, and splashed water on Chamberlain to revive him. Aguilar got on the table and waved to alert the deputies. He denied hitting or kicking Chamberlain.

Later that day, Aguilar, Carlstrom, and Michael Garten were moved to P Module where they were housed in single-person cells. Inmates communicated with each other during day room time and via “kites,” written communications. Sean Pough was also housed in P Module. Pough had numerous conversations with Garten and received kites from him. He also spoke with Aguilar many times. On multiple occasions, Aguilar told Pough that he was concerned about the fact he inserted a pencil into Chamberlain’s rectum. Pough asked Aguilar why he was worried about that when Chamberlain was dead, and Aguilar repeated his concern.

Finally, investigators interviewed Petrovich after advising him of his Miranda rights. Petrovich admitted “[he] was the mouthpiece for the whitest]” and held the “keys.” Petrovich told investigators that earlier in the day deputies had requested to speak with the Woods rep and pulled him out of the barracks. Deputies asked Petrovich if he “sp[oke] English” and “c[ould] hear.” Deputies discussed the fact there was a child molester in J cube, bunk 7. Petrovich said the South-Siders run F Barracks so he told the South-Siders that Chamberlain was a child molester and to “do whatever.” When an investigator stated, “You kind of lit the fuse by telling the ‘South-Siders’ what you heard,” Petrovich, answered “Right” and “You’re right.” He knew Chamberlain would be taxed. After chow, Petrovich approached Chamberlain in J cube and asked him about his charges. Chamberlain said he was going back to court and then Arizona. Petrovich met with the Mexicans in L cube, and they decided Chamberlain would go to “the wall”; two inmates would take body shots for 16 seconds. Petrovich played cards and never heard Chamberlain. Twenty minutes later, Aguilar yelled “man down.” Petrovich said he was never in D cube and did not .touch Chamberlain. He said about 50 inmates hit Chamberlain for about 20 minutes and admitted, “It got out of hand.”

3. October 17, 2006

Investigators interviewed Petrovich again. Investigators played the interviews of Aguilar, Carlstrom, and Garten for him. Petrovich again told investigators that deputies had a conversation in his presence about Chamberlain. Deputies said to keep it discreet and as long as inmates “ke[pt] it under [Chamberlain’s] clothes,” deputies would not get involved. Petrovich said Taylor looked at him and said, “You understand?” Petrovich winked. Taylor offered an incentive of an extra hour of day room time. Petrovich repeated the South-Siders run the barracks and he had to get their permission before taxing anyone. Petrovich went to N cube and spoke with the South-Sider “Stretch” and relayed what Taylor told him. All the other inmates were “racked-up” on their bunks, but Petrovich had special privileges because of his status in the CAR. He went to J cube and asked Chamberlain about his charges, and he said he was going to Arizona. Petrovich explained child molesters, rats, and thieves are the three worst groups of inmates and there are no rules on taxing. Usually, Petrovich would act as a referee and count, but he did not need to arrange anything and he did not want to get involved so he played cards. Petrovich looked into D cube and saw five or six Mexicans and White dudes. Chamberlain was lying on his side against the wall breathing weird with his boxers hanging off. Petrovich told everyone to stop and “put the red light” on the Whites. He then signaled to Stretch that it needed to stop and continued playing cards. Petrovich said the taxing got out of hand because it was “poorly orchestrated.” Aguilar got on the table to get the deputies’ attention.

At some point, investigators questioned Petrovich about Garten’s interview. Garten told investigators he was Petrovich’s bunkmate and knew him well. Garten said Petrovich was in D cube with Ryan Crowley and another inmate when Chamberlain was dragged in. Garten was supposed to be part of the first group to assault Chamberlain. When Garten entered D cube, Petrovich, Crowley, and another inmate got “involved” and got in Garten’s way. After investigators played Garten’s interview, the following colloquy occurred:

“[OCSD lead investigator Ken Hoffman]: Okay. Same two questions. Anything that you’ve heard with . . . Garten surprise you?

“[Petrovich]: Surprise me, no. What he said was pretty much on the money.

“[Hoffman]: Hang—hang on.

“[Petrovich]: Yeah.

“[Hoffman]: I just wanna [.sic] write this down.

“[Petrovich]: Yeah, he was—he—he got everything right—

“[Hoffman]:—a hundred percent?

“[Petrovich]: Right on the money. I couldn’t—yeah, right on the money. Yeah, a hundred percent.”

4. December 26, 2007

Investigators interviewed Guillen while he was in custody at the City of Anaheim jail after advising him of his Miranda rights. Guillen said he was the Paisanos’ mouse. Guillen was playing cards when he saw them coming downstairs and asked what was happening. They said they were going to tax Chamberlain. Guillen was told Chamberlain had raped or molested an eight-year-old girl and all Mexicans had to participate in his taxing. Guillen said he kicked Chamberlain once in the legs with his right foot. He then removed his shoe and hit him three times on the stomach with his shoe. Chamberlain was on his side, moving and screaming when Guillen hit him. Guillen said at least 30 inmates assaulted Chamberlain for about 15 minutes. Guillen explained he has daughters and thought about if they were molested. Guillen said he was afraid he would be taxed if he did not participate, he knew what he did was wrong, and it is difficult to understand if you are not in that position. But he also admitted he had a choice whether to participate and he participated because he wanted to hit Chamberlain. Guillen agreed taxing is a common occurrence in jail and it usually consists of “about 30 seconds, 30 blows on the body.” He said generally each race taxes their own race but with child molesters everyone ‘participates in the taxing.

5. Sometime in 2008

Orange County Weekly reporter Nick Schou interviewed Petrovich in early 2008. Schou reported the following:

“Petrovich knew Chamberlain was being beaten up because Petrovich had told the inmates now attacking Chamberlain that [he] was a ‘Chester.’

“Petrovich told Schou that he did not touch Chamberlain himself, but he acknowledged, ‘[he] lit the fire.’

“Petrovich did not dispute that he spread the word of Chamberlain’s status as a sex offender to the inmates who carried out the attack against Chamberlain. [][] . . . [f]

“Petrovich said that earlier in the day, prior to the beating of Chamberlain, an inmate approached him to say that the deputies wanted to talk to the White shot-caller. Petrovich told . . . Schou that he told the inmate, ‘no,’ but that the second time the inmate told Petrovich that the deputies wanted to talk to him as the White shot-caller Petrovich said, ‘Okay.’ Petrovich told Schou that he walked over to the locked door leading to the hallway, and after being buzzed through by the guard tower, he saw . . . Taylor and . . . Chapluk standing [in] the doorway. After the door locked behind him, Petrovich said that . . . Chapluk asked him if he spoke English. Petrovich said that when he said, ‘Yes,’ the two deputies carried out a brief conversation they clearly intended him to overhear. ‘There is a child molester in J7.’ Petrovich said that . . . Taylor remarked to . . . Chapluk, ‘and you know what happens when there’s a child molester.’ Petrovich told Schou that . . . Taylor didn’t mention Chamberlain by name, but then instructed Petrovich to ensure that the inmate in J7 was beaten up at 8:00 p.m. That evening after dinner when [sic] the inmates would be rewarded with an extra dayroom period. Petrovich also told Schou, ‘they wanted us to beat this dude up.’ Referring to . . . Taylor, Petrovich told Schou, ‘he gave us an incentive. He didn’t say we had to do it.’ Petrovich told Schou that . . . Taylor told him that Chamberlain had to survive the assault without any obvious facial injuries. He said, ‘Don’t hit him from the neck up. Just the neck down. Make sure he can walk out of here and I said, okay.’

“Petrovich told Schou that at that point, . . . Taylor and Chapluk allowed him back into the barracks, and he, Petrovich, went to J cube and saw Chamberlain sitting on his bunk and asked him why he was in jail and, ‘he, Chamberlain, said, some story about some freaking warrant. I don’t remember. An out-of-state warrant. Something petty.’ Petrovich told Schou that Chamberlain didn’t seem particularly nervous and that Petrovich said to him, ‘All right. See ya,’ and walked away. Petrovich told Schou that Chamberlain, ‘was a creepy looking dude. He looked weird. All those perverts look the same. He was like a little pig. Fat and little. I don’t know what was up with that dude.’

“Petrovich told Schou that he left J cube and approached the shot-caller for the South-Siders[,] [a] Latino inmate whose nickname was ‘Stretch’ because, Petrovich explained to Schou, while only White inmates can beat up another White inmate, that rule doesn’t apply to ‘child molesters or weirdoes. They’re wide open.’ Petrovich told Schou that telling the South-Siders about the upcoming beating was also a matter of respect since, ‘when you are going to beat someone up, you have to tell them so they don’t start tripping.’ Petrovich told Schou that Stretch replied, ‘All right, thanks for letting me know.’

“Petrovich told Schou that he next went to his bunk in L cube. T tell everyone in my cube that this guy, Chamberlain, is a child molester.’ Petrovich then told Schou that, ‘everyone just started getting pumped up. Let’s get him. People were like, let’s do this. Let’s not wait until 8. Next thing I know the dayroom opens. I’m playing cards and I see Chamberlain walk down to D cube and he walks in and that’s when it happens.’ Petrovich didn’t want to tell who escorted Chamberlain to D cube and he told Schou, T don’t want to point fingers at anyone.’

“Petrovich told Schou that he sat at a metal table playing pinochle while the White inmates beat Chamberlain. Petrovich said, ‘An inmate comes up to me and says, “we got a man down. Come check this out.” Petrovich told Schou, “So I go into the cube and see Chamberlain on the floor. He was lying on the ground holding his sides not talking. He was moaning.” Petrovich told Schou that he told the inmates to stop the attack. “I said that’s it. No more. It’s over.” Petrovich insisted to Schou that Chamberlain was still breathing. “I walk out of the cube and I see 50 Mexicans running in there. I said, ‘Stop,’ but they kept on coming.” Petrovich told Schou that the White inmates scattered, and he, Petrovich, returned to his card game while the Latino inmates took their turn with Chamberlain. Petrovich told Schou that Chamberlain was yelling for his life. “Please help me. Stop.” I could hear it from the card table maybe 30 feet away.’ Petrovich told Schou, ‘It was a whole herd of people. The Mexicans went in there, and who knows what they did. People were coming and going. They were getting him to confess. Someone was yelling at him what he was, and finally he admitted he was a child molester. That’s what I heard later. I heard they stuck a tube of toothpaste up his ass.’

“Petrovich told Schou that he recalls being amazed that the deputies didn’t notice all the commotion. ‘You’ve got 200 people in the barracks. Every single person was looking at D cube. You got 50 people in one cube for 20 minutes. What are you dudes at—where are you dudes at,’ referring to the guards.

“Petrovich told Schou, smiling nervously at his feet, ‘It’s crazy. Fuck. I’m being charged with murder for no fucking reason, honestly. I think it should be manslaughter. There was ho intent to kill him. I never told the White dudes, “Go kill this guy.” I said, he’s a child molester. But I didn’t touch him. If Taylor isn’t being charged, why am I? Just because he’s wearing a badge doesn’t make him above the law, and just because I’m an inmate doesn’t make me automatically guilty. I don’t want them to charge him with murder. I just want to get in the same boat as him.’ ”

6. Sometime in 2010

A television reporter interviewed Carlstrom sometime in 2010. Carlstrom said he was scheduled to be released two months after the assault and he would not have “touched that guy” if he was not obligated to. Carlstrom analogized the sound of the assault to a Public Broadcasting Service documentary where a “wolf pack brings down an elk or a deer, you know how they work together on bringing that animal down, that’s what I felt. It felt just like death.” Carlstrom claimed he tried to drag Chamberlain out of D cube but “they said no, he’s not going anywhere.”

7. September 9, 2011

Investigators interviewed Ibarra again. Ibarra stated he was playing cards with Petrovich. Ibarra explained he worked in a funeral home for many years and knew CPR so when he provided first aid for an inmate, other inmates believed he had medical training. Ibarra saw Taylor pick up Chamberlain, toss him, and slap him to wake him up.

G. Chamberlain’s Cause of Death

Chamberlain’s cause of death was multiple severe blunt impacts leading to failed chest mechanism, asphyxia, and cardiac arrest. Every region of Chamberlain’s body had blunt force trauma injuries except part of his abdomen. The injuries were very vivid on his face and scalp. Chamberlain’s entire back was hemorrhagic. The front of his torso was also hemorrhagic but concentrated in a few areas. Chamberlain had a total of 43 rib fractures and most of his ribs were severely misplaced; 21 of his 24 ribs were broken. His lung was punctured and he had defensive injuries to his upper extremities. He also had three injuries to his anus and rectum that were consistent with penetration by a long slender instrument with a tip or a point such as a spoon, pencil, or toothpaste tube. Chamberlain’s injuries could be equated with injuries suffered from a high-velocity car accident or a fall from multiple stories. Except for one rib fracture that caused a long laceration, no single injury was fatal. Chamberlain would not have died without the head and rib injuries.

II. Procedural Facts

A. Charging Documents & Grand Jury Proceedings

On November 17, 2006, a felony complaint charged Aguilar, Carlstrom, Garten, Eric Charles Miller, Petrovich, and Christopher Teague with murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code, unless otherwise indicated). About 10 months later, an information charged them with the same offense.

Meanwhile from May 2007 to February 2008, the Grand Jury investigated a broad range of issues surrounding Chamberlain’s death. The DA Report was published in April 2008.

In early 2008, an indictment charged Villafana, Guillen, and Jeremy Dezso Culmann with murder (§ 187, subd. (a)). On July 31, 2009, an amended indictment charged Villafana, Guillen, and Culmann with the same offense. The amended indictment alleged Guillen suffered two prior strike convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), and a serious felony conviction (§ 667, subd. (a)(1)).

On January 11, 2011, a consolidated and amended information charged Villafana, Guillen, Culmann, Aguilar, Carlstrom, Garten, Miller, Petrovich, and Teague with murder (§ 187, subd. (a)). It also charged Guillen, Culmann, Garten, Miller, and Teague with voluntary manslaughter (§ 192, subd. (a)), which was later dismissed on the prosecution’s motion. It alleged the same prior conviction allegations against Guillen.

B. Pretrial Motions

Defendants filed numerous pretrial motions. We discuss only those relevant to the issues on appeal.

1. Outrageous Government Conduct

Before the prosecution filed the consolidated and amended information, Garten filed a motion to dismiss for discriminatory enforcement and vindictive prosecution pursuant to Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44] (Murgia). All the defendants joined Garten’s motion. The prosecution opposed the motion, and Garten replied.

A few months later, Garten filed a motion to dismiss for outrageous government conduct in violation of the Fourteenth Amendment and incorporated by reference his Murgia motion. Garten also moved to dismiss pursuant to section 1385. Petrovich and Guillen joined Garten’s motion.

Defendants argued the government violated their due process rights based on the following: (1) Taylor and Chapluk “green-lighted” the assault on Chamberlain, and OCSD prevented “a full, independent, and impartial criminal investigation”; (2) OCSD had an inherent conflict of interest in investigating itself, and OCDA erred in failing to refer the matter to the California Attorney General; (3) OCSD “conspired to testify falsely, to withhold evidence, and to present doctored ‘evidence’ to the Grand Jury”; and (4) OCDA “acquiesced, approved, and tacitly joined” in OCSD’s “unlawful conduct when it failed to” prosecute OCSD employees who failed to perform their duties and violated Grand Jury rules. Garten’s motion included as exhibit A, the DA Report, and it relied on Grand Jury testimony.

As to the circumstances of Chamberlain’s death, the overarching theme of defendants’ motion was that deputies were derelict in their duties. Although deputies are to perform floor checks every 30 minutes, no deputy had been on the F Barracks floor from 2:00 p.m. until they were notified an inmate was injured at 6:50 p.m. “[D]eputies do not actively participate in supervising inmates” but instead “remain in the guard station” and watch television, play video games, browse the Internet, talk online, and sleep with the lights off. Deputies would go as long as 30 minutes without looking out the guard station windows. Defendants stated, “OCSD deputies routinely used inmates called ‘shot callers’ to enforce discipline or inflict punishment on other prisoners” in violation of OCSD policy and section 4019.5. Deputies rewarded shot callers who obeyed and threatened those who did not. They stated Taylor had been the subject of previous complaints concerning unauthorized discipline and punishment, including the use of a “ ‘pepper-ball’ rifle.” They detailed Petrovich’s numerous statements to investigators and a reporter that Taylor authorized the assault. They also cited statements from other inmates not charged in the crime establishing Taylor met with Petrovich, uncharacteristically opened day room early, and after the assault said, “ ‘You guys fucked up. I didn’t tell you to do it that way, somebody is going to be in trouble for this[,]’ and ‘Fuck, you guys weren’t suppose to take it this far.’ ” Defendants claimed Taylor had previously authorized an assault on another inmate.

With respect to the investigation of Chamberlain’s death, defendants stated that in 1985 pursuant to an Orange County Board of Supervisors’ resolution, OCSD and OCDA “adopted . . . written procedures” whereby “the OCDA assume[d] the primary investigative responsibility” into the death of any OCSD inmate “to eliminate any perceived conflict of interest.” (Fn. omitted.) OCSD’s policies provide it will participate in the investigation “ ‘as requested by the [OCDA].’ ” (Fn. omitted.) Since 1985, OCDA has investigated 129 of the 130 deaths that occurred in OCSD’s custody. “ ‘The only deviation in the more than 20 year history of this protocol occurred ... in the [OCSD’s] handling on . . . Chamberlain’s murder investigation.’ ” (Fn. omitted.) Defendants then discussed in detail OCSD’s claim it had always investigated homicides in custodial death situations. They painted a tangled web of OCSD’s perjured testimony, “doctored” reports, and general malfeasance in their attempt to rebut OCDA’s claim it was the lead investigative agency in all OCSD custodial deaths. Defendants alleged OCSD called OCDA about 8:00 p.m., and made clear it was the lead investigating agency. OCSD requested OCDA send three or four investigators to “ ‘monitor’ or ‘shadow’ ” OCSD investigators. They also stated OCSD did not comply with Grand Jury subpoenas. First, OCSD did not produce Taylor’s file because it was “lost” and it was the only file ever known to be missing. Second, OCSD produced the F Barracks log book but “the ‘shot caller’ log was missing.” (Fn. omitted.) Defendants said OCSD deputies violated Grand Jury secrecy rules and testified falsely. Between 5:50 p.m. and 6:50 p.m. on the day of Chamberlain’s death, Taylor sent or received a total of 22 text messages to his girlfriend and two female deputies. Both of the female deputies revealed to Taylor the contents of their testimony and the Grand Jury’s evidence.

Defendants argued OCSD failed to comply with its protocol with OCDA and improperly investigated itself. They also contended OCDA improperly failed to refer the matter to the California Attorney General, who has direct supervisory powers over all district attorneys and sheriffs. (Cal. Const., art. V, § 13; Gov. Code, §§ 12550, 12560.) They also alleged OCDA improperly failed to prosecute the deputies involved in the assault or OCSD employees who obstructed the investigation. Defendants concluded the outrageous government conduct violated their federal and state constitutional rights and requested the trial court to dismiss the case.

The prosecution opposed defendants’ motion to dismiss for outrageous government conduct. After discussing and distinguishing the legal authority defendants relied on, the prosecution argued the conduct in this case did not involve physical or mental abuse directed at defendants, or interfere with their right to counsel. The prosecution asserted OCDA “aggressively investigated both the homicide and conditions more generally at [TLJ], and issued a scathing report.” The prosecution added, “There is nothing to suggest that the [OCDA] interfered with the [G]rand [Jjury’s independence in this investigation or that the intervention of the Attorney General was required in order for there to be an independent investigation.”

At a hearing in July 2010, the trial court denied Garten’s motion to dismiss for discriminatory enforcement and vindictive prosecution.

Four months later, the trial court conducted a hearing on defendants’ motion to dismiss for outrageous government conduct. The court indicated it had read and considered the moving papers, including the DA Report. After Garten’s counsel detailed what he considered to be the 10 most egregious facts discussed in the DA Report, counsel argued defendants could not get a fair trial because OCSD investigated itself during the most important part of the investigation, the first 72 hours, and there is no way to know how the investigation would have turned out had OCDA lead the investigation from the start. Relying on the fact OCSD investigated itself, Petrovich’s counsel analogized the prosecution and trial of the defendants to a “home . . . built on a faulty foundation.”

The prosecutor responded there was no legal authority supporting defendants’ claim the court should “do the most extreme of actions and throw out this criminal prosecution.” The prosecutor added Garten’s motion was “a rehashing of’ Garten’s motion to dismiss for discriminatory enforcement and vindictive prosecution. The prosecutor argued defendants failed to establish both that the government violated an independent protected right, and that the government conduct “was so outrageous, so egregious, so repugnant that it shocks the conscience, that it violates the canons of decency.” The prosecutor stated defendants asserted three arguments: OCDA should have charged other people, OCDA should have called the California Attorney General, and OCSD should not have conducted the initial investigation. The prosecutor asserted none of those were independent protected rights. Garten’s counsel replied a fair trial requires a fair investigation. Guillen’s counsel stated the defendants’ independent protected right was to be secure in the deputies’ custody.

The trial court denied defendants’ motion to dismiss for outrageous government conduct. The court began by stating the claim it is impossible to know what would have happened had OCDA been the primary investigating agency was entirely speculative and unpersuasive and did not amount to outrageous government conduct. The court stated: “There [are] no grounds for an outrageous governmental conduct motion in this case. The defendants can get a fair trial in this case, and I don’t think the investigation conducted the way it was amounts to the threat of a violation of due process; that is, the threat that a fair trial be denied. Therefore, ... the outrageous governmental conduct motion is denied .... There is no law to support the grant of an outrageous governmental conduct motion in the context of this case, and I mean by that very specifically that the defendants can receive a fair trial in this case; and, therefore, I do not see a denial of due process.”

2. Jury’s View of F Barracks

After the prosecution filed the consolidated and amended information, Guillen filed a motion to allow the jury to view TLJ pursuant to section 1119. In his motion, Guillen argued the jury’s view of F West was appropriate for the following reasons: (1) conditions inside a jail were not a matter of common knowledge and it was likely the jury would rely on inaccurate mental images of what F West looked and sounded like; (2) an accurate representation of F West could not be duplicated because photographs and diagrams could not precisely portray distances and acoustics; (3) a view of F West would among other things enable the jury to ascertain sight lines, gain a perspective of F West’s audio and visual characteristics, and improve their ability to test the veracity of the witnesses; and (4) a view of F West could be easily and quickly accomplished because of its close proximity. All defendants joined in Guillen’s motion.

The prosecution opposed Guillen’s motion to view TLJ. In its opposition, the prosecutor argued a jury view of F West was inappropriate for the following reasons: (1) since Chamberlain’s death, the conditions of F West had materially changed, including the removal of the privacy walls in each cube and installation of 22 cameras and multiple large screen monitors in the guard station; (2) there were adequate and ample alternatives to a jury view of F West, including hundreds of photographs and numerous diagrams illustrating F West’s configuration; and (3) a jury view of F West was not easy or quick and would necessitate the planning and moving of 145 inmates.

At a hearing on defendants’ motion to view F West, the trial court indicated it had read and considered the written submissions and heard argument, which included a discussion about the fact defense counsel had previously viewed F West and it was a “breathtaking experience” that photographs could not convey. Relying on section 1119, the court stated it was “afraid of a jury view in this case” and explained the jury would be misled by a view of F West because of the material changes to its layout and the inability to recreate the audible circumstances of the case. The court opined that because the conditions of F West had changed, the privacy walls were removed and the blind spot in D cube was gone, the probative value of viewing it was diminished. The court stated the photographs were the closest representation of F West’s layout at the time of the incident. The court repeated it would be difficult to recreate the noise level and placement of the inmates. The court was also concerned with the logistical issues of a jury view and the emotional impact on the jury. The trial court denied defendants’ motion to view F West.

3. Prosecution’s Evidence Code Section 402 Motion

The prosecution filed an Evidence Code section 402 motion, which included 15 issues, two of which are relevant on appeal.

First, the prosecution sought to admit Chamberlain’s statements to Palacios and Chapluk. The prosecution stated Palacios asked Chamberlain why he was in custody, and Chamberlain said he violated a restraining order. The prosecution also stated that after receiving information from Chamberlain’s attorney, Chapluk spoke with Chamberlain, and Chamberlain told him that inmates had “pressured” him about his charges, and he did not feel he was in any danger, but he might need to be moved before his next court date. The prosecution sought to admit the statements not for the truth of the matter asserted but under Evidence Code section 1250 to demonstrate Chamberlain’s state of mind he feared inmates.

Second, the prosecution sought to exclude the following extrinsic facts discovered during the Grand Jury investigation: (1) “character evidence of [OCSD] personnel,” including OCSD policy violations and past conduct, OCSD personnel conduct before the Grand Jury, and OCSD personnel- discipline and termination; (2) “evidence of inter-agency investigative policy and practice for custodial deaths”; and (3) evidence of reports of the Grand Jury, OCDA, and Office of Independent Review (OIR). The prosecution argued the Grand Jury ultimately investigated matters that were not directly relevant to Chamberlain’s killing and “[a] clear division must be drawn” between the broad Grand Jury investigation and the issues in defendants’ trial. The prosecution placed the onus on the defense to identify the evidence discovered during the Grand Jury proceedings that was potentially relevant at trial and to establish its admissibility.

With regard to the first category of evidence, the prosecution alleged the Grand Jury received evidence concerning a broad range of OCSD personnel policy violations, including the following: “sleeping on duty; improperly watching television, playing video games, and browsing the Internet; failing to conduct timely floor patrols; failing to maintain adequate records; using unauthorized forms of discipline; denying inmate requests for medical services; inappropriate uses of a ‘pepper-ball’ gun; and inappropriate reliance on inmates to enforce rules.” The prosecution claimed this past conduct was irrelevant to their guilt, was improper character evidence, and its admission would necessitate an undue consumption of time. The prosecution explained OCSD personnel conduct before the Grand Jury, including their response to Grand Jury requests, violations of secrecy, and untruthful testimony, was irrelevant, improper character evidence, hearsay, and its admission would necessitate an undue consumption of time. Last, the prosecution asserted whether any OCSD personnel were disciplined or terminated was irrelevant to their guilt.

As to the second category of evidence, the prosecution contended evidence of OCSD and OCDA protocols for investigating inmate deaths was irrelevant, and its admission would confuse the jury and necessitate a substantial consumption of time. As an aside, the prosecution stated that although the Grand Jury ultimately concluded OCSD violated protocol when it lead the investigation into Chamberlain’s death, the prosecution opined the protocol was nonbinding and ambiguous, and OCSD possessed the authority to lead the investigation. Finally, with respect to the last category of evidence, the prosecution contended Grand Jury, OCDA, and OIR reports were irrelevant, and included inadmissible hearsay, opinion, conclusions, and speculation.

Carlstrom opposed the prosecution’s Evidence Code section 402 motion. All defendants joined in the opposition. Carlstrom submitted on the issue of the admissibility of Chamberlain’s statements to Palacios. However, Carlstrom objected to admission of Chamberlain’s statements to Chapluk. Carlstrom argued Chamberlain’s statements to Chapluk were not relevant to any issue at trial. He also claimed admission of the statement violated Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354]. Finally, he claimed Chapluk’s testimony concerning what Chamberlain said was untrustworthy because Chapluk had a motive, criminal and civil liability, to lie.

Later that day, the trial court heard argument on the prosecution’s Evidence Code section 402 motion to admit Chamberlain’s statements to Palacios and Chapluk. After the prosecutor agreed with the trial court’s lengthy explanation concerning the prosecutor’s proffer, Carlstrom’s defense counsel objected, on among other things, relevancy grounds. The court inquired why the statements were relevant. The prosecutor argued the statements were relevant because “it’s state of mind that it’s consistent with his subsequent conduct.” The court asked how Chamberlain’s state of mind was at issue in this case. The prosecutor argued Chamberlain’s state of mind was at issue because it rebuts the defenses’ assertion Taylor orchestrated the assault. The court again asked how Chamberlain’s statements rebut the defenses’ theory Taylor instigated the assault. The prosecutor explained Chamberlain’s statements tend to establish he was afraid of the inmates and not Taylor. Carlstrom’s counsel again objected on relevancy grounds. When Guillen’s defense counsel asked how Chamberlain’s state of mind was at issue, the court asked the prosecutor to explain its relevance again. The prosecutor explained Chamberlain’s statement to Palacios he was in custody for violating a restraining order explains his subsequent conduct of telling Taylor and Chapluk that he was comfortable staying in F Barracks until his next court date. Petrovich’s counsel as