Ochoa

A jury convicted defendant Sergio Ochoa of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to *416 this code unless otherwise indicated) and one count of attempted second degree robbery (§§ 664, 211). The jury also found true the allegations that a principal was armed with respect to all three offenses (§ 12022, subd. (a)(1)) and that defendant personally used a firearm with respect to one of the murders and the attempted robbery (§ 12022.5). Having found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), and that a murder was committed while defendant was engaged in robbery (§ 190.2, subd. (a)(17)(A)), the jury set the penalty at death. The trial court denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239).

For the reasons stated below, we conclude the judgment should be affirmed in its entirety.

I. Facts

A. Guilt Phase

1. The People’s Case

a) The gang rivalry

In late 1989 and early 1990, defendant’s 18th Street Gang was in a “war” with a rival gang, Crazy Riders. On December…

I concur in the majority opinion except for its treatment of defendant’s contention that the delay between sentencing and execution violates the Eighth Amendment’s prohibition against cruel and unusual punishment. This court has in the past rejected such a claim, holding that “[a]s long as it is reasonable, the time required for our statutorily mandated review is not a violation of a criminal defendant’s constitutional rights; it is essential to ensuring that those rights are and have been respected.” (People v. Ochoa (1998) 19 Cal.4th 353, 477 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ].) Because the delay here is reasonable, this court’s holding in Ochoa is dispositive here. I would go no further.

Appellant’s petition for a rehearing was denied September 19, 2001.

A jury convicted defendant Sergio Ochoa of two counts of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated) and one count of attempted second degree robbery (§§ 664, 211). The jury also found true the allegations that a principal was armed with respect to all three offenses (§ 12022, subd. (a)(1)) and that defendant personally used a firearm with respect to one of the murders and the attempted robbery (§ 12022.5). Having found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), and that a murder was committed while defendant was engaged in robbery (§ 190.2, subd. (a)(17)(A)), the jury set the penalty at death. The trial court denied defendant's motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic. (Cal. Const., art. VI, § 11; Pen.Code, § 1239).

For the reasons stated below, we conclude the judgment should be affirmed in its entirety.

In late 1989 and early 1990, defendant's 18th Street Gang was in a "war" with a rival gang, Crazy Riders. On December 15, 1989, defendant was walking with "Polio" near Pico Boulevard and Fourth…