People v. Barrera: Penalty-Phase Carter Instruction Error Is Not Structural (Reviewed Under Chapman); RJA Death-Penalty Bar Not Automatic for Pre-RJA Nonprejudicial Violations

Supreme Court of California (June 1, 2026) — S103358
Opinion by Kruger, J.; Liu, J., concurring; Evans, J., dissenting

1. Introduction

People v. Barrera is an automatic appeal from a Los Angeles County capital judgment arising from the murders of two young children—five-year-old Ernesto and two-year-old Guadalupe (“Lupita”)—committed in a household marked by severe, prolonged abuse, deprivation, and control. A jury convicted Marcos Esquivel Barrera of two counts of first degree murder and found true the special circumstances of torture murder and multiple murders (Pen. Code, §§ 187, 190.2, subd. (a)(3), (18)), returning a death verdict at the penalty phase.

On appeal, the case presented layered issues typical of capital review—sufficiency of evidence for torture murder and premeditation, Confrontation Clause claims involving expert testimony, instructional disputes about second degree felony murder, penalty-phase prosecutorial argument, and (notably) multiple challenges under the California Racial Justice Act of 2020 (RJA) (Pen. Code, § 745), including the effect of the Legislature’s 2025 amendments addressing death-penalty eligibility when an RJA violation is found.

The court affirmed the judgment in full. But the opinion’s doctrinal significance lies chiefly in two clarifications:

  • Penalty-phase refusal to give a requested no-adverse-inference instruction (a Carter v. Kentucky (1981) 450 U.S. 288 instruction) is constitutional error, but it is not structural and is reviewed under Chapman v. California (1967) 386 U.S. 18.
  • The court interprets the RJA’s new death-penalty ineligibility language (Pen. Code, § 745, subd. (l)) to avoid a reading that would categorically invalidate pre-RJA death judgments for nonprejudicial implicit-bias violations, thereby preserving harmless-error review for such retroactive claims.

2. Summary of the Opinion

2.1 Guilt phase

  • Sufficiency of evidence: The court held substantial evidence supported first degree murder under both theories submitted—murder by torture and premeditated and deliberate murder—for each child, and supported the torture-murder special circumstance.
  • Expert hearsay / Confrontation Clause: Assuming without deciding a Crawford/Sanchez violation from admission of non-testifying radiologist Dr. Boger’s findings through testifying medical examiner Dr. Ribe and through the written report, the court found any error harmless beyond a reasonable doubt.
  • Instructional issues:
    • Failure to instruct on second degree felony murder predicated on torture: assuming (without deciding) it was a lesser included theory during the relevant statutory window, any error was harmless given the special circumstance findings and the overall instruction set.
    • Challenge to CALJIC former No. 8.71 (degree-of-murder reasonable doubt): rejected, consistent with recent precedent.
    • Multiple convictions / lesser included offenses: child endangerment and corporal injury were not barred as lesser included offenses of child abuse homicide because the record showed multiple acts across time, not a single indivisible act.

2.2 Penalty phase

  • Prosecutor’s “lack of remorse” argument: No reversible Fifth Amendment error; any potentially improper comments were, at most, harmless.
  • No-adverse-inference instruction: The trial court erred by refusing Barrera’s requested penalty-phase instruction, but the error was harmless beyond a reasonable doubt.

2.3 Racial Justice Act claims

  • The court rejected or assumed error on several RJA claims (including dehumanizing “animal” rhetoric) but concluded any violation was harmless beyond a reasonable doubt.
  • Critically, the court held the 2025 amendment adding Pen. Code, § 745, subd. (l) does not compel automatic death ineligibility (and thus automatic reversal) for pre-RJA judgments based on nonprejudicial implicit-bias violations involving facially neutral language; the statute must be read to avoid grave constitutional questions (Cal. Const., art. VI, § 13; initiative constraints).

3. Analysis

3.1 Precedents Cited (and How They Shape the Court’s Approach)

A. Sufficiency-of-evidence framework and torture murder

  • People v. Powell (2018) 5 Cal.5th 921: Supplies the governing substantial evidence standard and the elements of first degree torture murder (including intent to inflict extreme and prolonged pain for a sadistic purpose). The court repeatedly uses Powell’s articulation to structure its analysis of both Lupita and Ernesto.
  • People v. Whisenhunt (2008) 44 Cal.4th 174 and People v. Steger (1976) 16 Cal.3d 539: These cases mark the doctrinal boundary between (i) premeditated intent to torture supporting first degree torture murder and (ii) episodic “explosions of violence” insufficient for that heightened mental state. Barrera relied on Steger; the court distinguishes it by emphasizing deliberate patterns (starvation/neglect, isolation, prolonged abuse, refusal of medical aid) that go beyond a frustrated caretaker’s loss of control.
  • People v. Lopez (2018) 5 Cal.5th 339: The court uses Lopez as the most factually analogous modern child-abuse homicide precedent to uphold both torture-murder and premeditation findings—especially the inference of heightened awareness of a toddler’s fragility after the defendant’s own escalating abuse, and the inference of intent from refusal to obtain medical care.
  • People v. Edwards (2013) 57 Cal.4th 658: Provides the distinction between (i) first degree torture murder’s premeditated intent to torture and (ii) the torture-murder special circumstance’s requirements (including intent to kill, infliction of an extremely painful act on a living victim, and no requirement of causal link between torture act and death).
  • People v. Streeter (2012) 54 Cal.4th 205, People v. Chatman (2006) 38 Cal.4th 344, People v. Jennings (2010) 50 Cal.4th 616, and People v. Proctor (1994) 4 Cal.4th 499: These cases supply the inference rules—intent may be inferred from the condition of the body, nonlethal injuries, and the “continuum” of brutality; courts should not over-weight wound severity; and torture intent may be shown by violence after incapacitation.
  • People v. Gonzales (2011) 51 Cal.4th 894 (Veronica Gonzales) and People v. Gonzales (2012) 54 Cal.4th 1234 (Ivan Gonzales): Both are used for the powerful inference that refusal to secure medical assistance while a child is visibly dying supports both intent to torture and intent to kill.

B. Premeditation and deliberation

  • People v. Stitely (2005) 35 Cal.4th 514: Provides the classic definition—reflection rather than rash impulse; reflection may be quick.
  • People v. Solomon (2010) 49 Cal.4th 792: Cited for the proposition that repeated similar killings support an inference of intended and premeditated conduct; the court uses the back-to-back child deaths (months apart) as probative of deliberation and volitional control.

C. Confrontation Clause and expert basis testimony

  • People v. Sanchez (2016) 63 Cal.4th 665: Recasts California expert-basis doctrine by treating case-specific hearsay related as true as hearsay; the court assumes a violation but ultimately resolves on harmlessness.
  • Crawford v. Washington (2004) 541 U.S. 36: Governs testimonial hearsay; the court notes evolving doctrine for technical reports and assumes (without deciding) that the radiology report is testimonial.
  • Smith v. Arizona (2024) 602 U.S. 779: Cited to reinforce the modern Confrontation Clause framework for experts conveying testimonial hearsay.
  • People v. Leon (2015) 61 Cal.4th 569 and People v. Rangel (2016) 62 Cal.4th 1192: Provide the rule that Crawford claims are not forfeited by failure to object in pre-Crawford trials.
  • People v. Gonzalez (2021) 12 Cal.5th 367 and People v. Schultz (2020) 10 Cal.5th 623: Acknowledge the instability/flux around technical reports’ testimonial status, enabling the court’s “assume error, find harmless” disposition.

D. Instructional error: second degree felony murder and harmlessness

  • People v. Beames (2007) 40 Cal.4th 907: Central to the harmlessness reasoning. Even assuming a second degree felony-murder-by-torture instruction was required, a true torture-murder special circumstance finding (including intent to kill) defeats any reasonable probability the jury would have returned a second degree felony-murder verdict.
  • People v. Blair (2005) 36 Cal.4th 686: The conceptual precursor for Beames (poison context); used to show incompatibility between special circumstance intent-to-kill findings and second degree felony-murder theories premised on intent to injure rather than kill.
  • People v. Breverman (1998) 19 Cal.4th 142: Supplies the “reasonable probability” standard for state-law lesser-included instructional error.

E. CALJIC 8.71 and unanimity/degree-of-murder reasonable doubt

  • The court relies on its recent line of cases rejecting similar attacks, including People v. Mataele (2022) 13 Cal.5th 372, People v. Buenrostro (2018) 6 Cal.5th 367, and People v. Salazar (2016) 63 Cal.4th 214, emphasizing holistic instruction review.

F. Fifth Amendment comments and “no adverse inference” instruction

  • Griffin v. California (1965) 380 U.S. 609: Frames impermissible comment on silence.
  • Carter v. Kentucky (1981) 450 U.S. 288: Establishes that upon request, a “no-adverse-inference” instruction must be given.
  • People v. Leonard (2007) 40 Cal.4th 1370 and People v. Melton (1988) 44 Cal.3d 713: Confirm Carter’s rule applies at the penalty phase.
  • Neder v. United States (1999) 527 U.S. 1, Weaver v. Massachusetts (2017) 582 U.S. 286, Sullivan v. Louisiana (1993) 508 U.S. 275, and Vasquez v. Hillery (1986) 474 U.S. 254: Used to place Carter error within the broader “structural vs. trial error” taxonomy; Barrera holds Carter error is not structural.
  • The court notes lower court consensus applying harmlessness to Carter error (including People v. Evans (1998) 62 Cal.App.4th 186).

G. Racial Justice Act

  • People v. Bankston (June 1, 2026, S044739) __ Cal.5th __: Provides the retroactivity/harmlessness framework the court applies to implicit-bias language in pre-RJA judgments, and informs the court’s interpretation of the 2025 amendments, including § 745, subd. (l).

3.2 Legal Reasoning

A. Torture murder and the special circumstance: intent inferred from a continuum

The court’s torture-murder analysis is a methodical application of settled doctrine to unusually extensive evidence. Rather than treat the fatal episodes as isolated “rage” events, the court treats the record as showing a continuum of domination and cruelty:

  • Daily beatings and targeted hostility toward the two Petra children (especially Ernesto, whom Barrera doubted was his biological son).
  • Isolation and deprivation (Ernesto eating/sleeping apart; withholding food; visible emaciation; prolonged semi-comatose state).
  • Refusal of medical care despite obvious life-threatening injury—used as a key circumstantial marker of intent to torture and, for the special circumstance, intent to kill.
  • Concealment (secret burials; acid on Lupita’s body; coercing Jose to falsely take blame; burying Ernesto until deputies discovered the grave).

The court’s distinction from People v. Steger is important: it signals that where the evidence shows prolonged mistreatment, starvation/neglect, and post-injury indifference (including “ensuring death” by refusing help), courts will affirm torture intent even if the defense characterizes the final act as impulsive.

B. Premeditation: “reflection” from escalating abuse + fragility awareness

For both victims, the court emphasizes the logic developed in People v. Lopez: when a defendant has personally inflicted repeated prior abuse, the defendant’s awareness of the child’s fragility supports an inference that the final lethal act was not “unconsidered impulse.” The refusal to obtain medical aid functions as both:

  • evidence of conscious decisionmaking after the injury, and
  • evidence that the defendant intended death (or at least accepted it as the outcome).

With Ernesto, the court adds the temporal comparison: two child deaths months apart, with a pause and resumption in abuse, supports an inference of volitional control (and thus deliberation), not mere uncontrollable fury.

C. Expert hearsay: “assume error” but emphasize harmlessness through redundancy and cautionary context

The opinion exemplifies a recurring appellate technique in confrontation jurisprudence: where the testimonial status of technical material is unsettled, the court may assume a violation and resolve on harmlessness beyond a reasonable doubt.

The court’s harmlessness reasoning is concrete:

  • Overwhelming independent evidence of repeated abuse (eyewitness child testimony, corroborated by Ernesto’s autopsy).
  • Dr. Ribe’s independent findings (including one healing fracture he personally examined).
  • The uncertain nature of the X-ray inferences (“suggest,” “not definite”) and the jury’s awareness of decomposition/acid effects.
  • Limited prosecutorial reliance in argument.

D. Second degree felony-murder instruction: even if required, verdict architecture makes prejudice unlikely

The court avoids deciding the historically awkward question whether second degree felony murder based on felony torture operated as a lesser included offense during the 1990–1999 statutory window. Instead, it ties harmlessness to:

  • People v. Beames: the jury’s torture-murder special circumstance findings necessarily include intent-to-kill findings incompatible with any plausible second degree felony-murder-by-torture path.
  • The availability—and rejection—of two second degree murder theories (express malice without premeditation and implied malice).

E. Fifth Amendment and penalty instructions: a new statewide clarity point

The court makes two moves with practical capital-trial consequences:

  • It confirms the penalty-phase refusal of a requested Carter instruction was error (rejecting the trial court’s reliance on People v. Box (2000) 23 Cal.4th 1153 as misread through People v. Davenport (1995) 11 Cal.4th 1171).
  • It settles that such error is not structural and is reviewed under Chapman, aligning California with the weight of appellate authority.

Even though the court finds harmlessness here (given powerful aggravation evidence and limited mitigation), the doctrinal holding matters: it directs how future penalty-phase Carter errors will be litigated and remedied.

F. RJA: “objective observer” discrimination, contextual sensitivity, and constitutional avoidance

The opinion’s most consequential RJA reasoning occurs in two areas:

  1. Substantive scope: The court reiterates that the RJA reaches implicit bias and facially neutral language (Pen. Code, § 745, subd. (h)(4)), but repeatedly uses context to reject certain claims (e.g., “illegal alien” in voir dire by defense counsel; prospective juror bias statements by excused venirepersons; evidence about street vending).
  2. Remedial/retroactivity architecture after the 2025 amendments: The court construes § 745, subd. (l) (death penalty ineligibility “when the court finds there has been a violation of subdivision (a)”) to avoid a reading that would categorically bar death in pre-RJA cases for nonprejudicial implicit-bias violations—citing (i) Cal. Const., art. VI, § 13 miscarriage-of-justice limits, and (ii) initiative constraints tied to Proposition 7 (the Briggs Initiative) as explained through People v. Kelly (2010) 47 Cal.4th 1008 and its application in People v. Superior Court (Guevara) (2025) 18 Cal.5th 838.

In effect, the opinion positions harmless-error review as a stabilizing mechanism for retroactive RJA litigation in capital cases—especially where the challenged language is facially neutral and the record is otherwise overwhelming.

3.3 Impact

A. Capital penalty-phase practice: Carter instructions and appellate posture

The holding that Carter error is reviewed under Chapman (not treated as structural) will influence both trial and appellate strategies:

  • Trial courts are plainly on notice: if requested, a no-adverse-inference instruction must be given at penalty.
  • Appellate litigation will focus on prejudice: counsel will develop a record showing how silence was plausibly used against the defendant in the jury’s moral weighing (especially where the prosecution argues remorse-related themes).
  • Prosecutorial argument will likely become more cautious: the court’s discussion underscores the fine line between “no evidence of remorse” and impermissible comment on silence.

B. RJA remedial scope in pre-RJA capital cases

The court’s interpretation of § 745, subd. (l) signals that, for pre-RJA judgments, even where language is assumed to violate the Act, the People may still preserve a death judgment by proving harmlessness beyond a reasonable doubt. This:

  • reduces the likelihood of automatic death reversals based solely on brief, facially neutral rhetoric,
  • places heightened emphasis on contextual record review and argument frequency,
  • invites future disputes about when language is sufficiently “explicit” (or sufficiently central) that harmlessness becomes difficult to show.

C. Expert-testimony disputes: harmlessness as the decisive battleground

By assuming confrontation error and deciding on harmlessness, the court reinforces a pragmatic trend: even when technical reports may be testimonial, reversal will be uncommon if the disputed evidence is cumulative and the prosecutor does not heavily rely on it.

4. Complex Concepts Simplified

  • First degree “murder by torture”: A killing is first degree if the defendant acted with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain for a sadistic purpose. An intent to kill is not required, but an intent to torture is.
  • Torture-murder special circumstance: A separate capital eligibility finding. It requires (among other things) intent to torture and intent to kill, but it does not require a causal link between the torturous act and the death.
  • “Case-specific hearsay” and experts: After People v. Sanchez, an expert cannot repeat out-of-court case facts as true unless independently proved or within an exception. If those statements are “testimonial,” Crawford bars them absent cross-examination.
  • Structural error vs harmless error: Structural errors automatically require reversal because they corrupt the entire trial framework. Most constitutional errors—including many instruction errors—are reviewed for harmlessness. Here, the court holds Carter error is not structural and uses Chapman’s “harmless beyond a reasonable doubt” test.
  • RJA “objective observer” standard: The Act targets language that, to an objective observer, explicitly or implicitly appeals to racial/ethnic/national-origin bias—regardless of whether the speaker intended discrimination.

5. Conclusion

People v. Barrera affirms one of the most factually extreme child-torture capital judgments in the California reports, but its broader legal legacy is doctrinal: it definitively places penalty-phase refusal of a requested no-adverse-inference instruction within Chapman harmless-error review rather than structural-error reversal, and it construes the RJA’s 2025 death-penalty ineligibility language to avoid an automatic, prejudice-free death reversal rule for pre-RJA judgments based on implicit-bias language.

The separate opinions sharpen the fault line: Justice Liu agrees the RJA was violated but finds harmlessness; Justice Evans would find violations and reject harmless-error analysis as inconsistent with the Legislature’s intent. The majority, while repeatedly condemning dehumanizing rhetoric, ultimately anchors relief to prejudice—especially in retroactive capital RJA claims.