People v. Bivert
52 Cal. 4th 96
Cal.2011Background
- Defendant Kenneth R. Bivert was convicted of first degree murder for the February 5, 1997 killing of Leonard Swartz, with special circumstances of prior murder and lying in wait, plus related assault and prior murder convictions.
- During guilt phase, evidence showed Bivert led a racially segregated inmate group known as 'the woods' and targeted inmates perceived as pedophiles or violators of his code, including Dixon (assault) and Swartz (murder).
- Swartz was stabbed in the neck in a premeditated attack in SVSP with blood evidence and testimony placing Bivert at the scene; Swartz later died of complications from the wound.
- DNA from Swartz’s blood matched blood on Bivert’s pants, and inmates testified to Bivert’s statements about killings and his plans against specific victims.
- During penalty phase, the People presented evidence of three juvenile murders and other prior violent conduct, while Bivert offered no mitigation evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Separate juries for guilt and penalty | Nicolaus dictates same jury unless good cause shown | Separate juries would insulate guilt phase from prior-conviction voir dire | No abuse of discretion; no good cause shown |
| Excusal for cause of Prospective Juror No. 3 | Juror 3 should be excused for bias against death penalty | Court erred in excusing; juror could be impartial | Correct to excuse; views would substantially impair duties |
| Excusal for cause of Prospective Juror No. 8 | Juror 8 was biased in favor of death penalty | Juror could follow the law and be impartial | Court did not err; juror could weigh evidence and follow law |
| Admission of White supremacist evidence | Evidence relevant to motive and intent | Violates First Amendment and inflames jury | Admissible; evidence tied to motive and mens rea; not unduly prejudicial |
| CALJIC No. 3.20 modification | Court properly refused amendment limiting cautionary instruction | In-custody percipient witnesses should receive same cautionary treatment | Refusal proper; distinction between informants and percipient witnesses retained |
Key Cases Cited
- People v. Nicolaus, 54 Cal.3d 551 (Cal. 1991) (capital trial juries typically unified absent good cause)
- People v. Lucas, 12 Cal.4th 410 (Cal. 1996) (abuse of discretion standard for jury decisions)
- People v. Yeoman, 31 Cal.4th 93 (Cal. 2003) (voir dire as tactical decision)
- People v. Hawthorne, 46 Cal.4th 67 (Cal. 2009) (deference to trial court on juror state of mind)
- People v. Wilson, 44 Cal.4th 758 (Cal. 2008) (impartial jury requirement in capital cases)
- People v. Bonilla, 41 Cal.4th 313 (Cal. 2007) (mitigation and death-penalty considerations)
- People v. Mills, 48 Cal.4th 158 (Cal. 2010) (preservation requirements for challenges to jury panels)
- People v. Roldan, 35 Cal.4th 646 (Cal. 2005) (juvenile prior offenses in aggravation and individualized assessment)
- People v. Letner and Tobin, 50 Cal.4th 99 (Cal. 2010) (capital statute adequacy and proportionality principles)
- Dawson v. Delaware, 503 U.S. 159 (U.S. 1992) (First Amendment concerns with prison-inmate associations evidence)
- Roper v. Simmons, 543 U.S. 551 (U.S. 2005) (juvenile offenders and capital punishment considerations)