Opinion
A jury convicted defendant John Clyde Abel of the first degree murder of Armando Miller (Pen. Code, § 187, subd. (a)), also finding he had personally used a firearm in the commission of the offense (id., § 12022.5, subd. (a)) and finding true the special circumstance that defendant had committed the murder during the course of a robbery (id., § 190.2, subd. (a)(17)). It imposed a sentence of death. We affirm the judgment.
I. FACTS
A. Introduction
Armando Miller’s family owned the Alameda Market in the City of Orange. Every Friday morning, Miller or his father withdrew either $10,000 or $20,000 from the Sunwest Bank in Tustin to provide check-cashing services to the market’s customers. On Friday, January 4, 1991, Miller withdrew $20,000. A few moments later, an unidentified man in the bank’s parking lot shot Miller once in the head, killing him. The man left, carrying a paper bag. The money was never recovered. Defendant was linked to the crime by the descriptions provided by witnesses who saw the man in the parking lot, the witnesses’ selection of defendant’s photograph out of photographic lineups, one witness’s in-court identification of defendant, and a second witness’s testimony that a photograph taken of defendant near the time of Miller’s death was a photograph of the man she had seen. In addition, defendant admitted he had been in the market on at least one occasion, and there was evidence he was aware someone from the market typically withdrew large sums from the bank on Fridays. Further, a woman who had participated in a series of armed robberies with defendant later in 1991 testified defendant had told her about killing Miller and given her the murder weapon.
Police responding to reports of the murder found an expended .22-caliber shell casing close to Miller’s body, but little other physical evidence. No one saw the shooting, but several witnesses reported seeing a man with a gun, or a man running from the vicinity of the shooting carrying a paper bag.
Detectives showed witnesses numerous photographs and many photographic lineups of men resembling the description of the gunman, but the witnesses reported that none was of the man they had seen. Detectives also interviewed Miller’s family and showed them photographs, trying to discover if they knew anyone who might have been the killer, but again to no avail. The investigation was suspended after all leads had been exhausted without bringing the police any closer to identifying the killer. It was reopened on August 3, 1993, after Police Detective Nasario Solis received an anonymous telephone call from a woman who told him Miller was killed by a man named John Abel, who was then serving a long prison sentence for a series of bank robberies. Detective Solis learned that defendant was incarcerated in Folsom State Prison for a number of armed robberies. He obtained defendant’s photograph and over the next year attempted to corroborate other information provided by the anonymous caller.
Detective Tom Tarpley picked up the investigation when he rotated into the homicide unit in 1995. In March 1995, he showed witness Bettina Redondo a photographic lineup containing defendant’s photograph. Redondo picked defendant’s photograph out, saying he was the man she had seen. Tarpley showed the photographic lineup to a second witness, Colleen Heuvelman, who immediately identified defendant as the man she had seen. Tarpley showed the photographic lineup to Miller’s mother, America Miller, who reported having seen defendant in the market with James Gano, a regular customer who had also arranged mortgage loans for the business and was aware of the family’s practice of obtaining funds on Friday mornings for the check-cashing aspect of the business. Tarpley also contacted Lorraine Ripple, who had been convicted of committing a number of armed robberies with defendant, asking her if she had any information about Miller’s murder. Ripple said defendant had told her he killed Miller and had given her the murder weapon.
Linda Pratt, who had been a teller at Sunwest Bank, testified she cashed a $20,000 check for Miller on the morning of his death. A short time later, she heard a popping sound from outside the bank, looked out the window, and saw Miller lying on the ground. She also saw a person wearing a navy blue watchman cap and carrying a bag run away through a gap in the bushes outside the bank.
Redondo related having worked with a police artist to put together a composite picture of the man she had seen, being shown “over a thousand” photographs and selecting a photograph of a man who later was identified as Larry Jones. But after viewing Jones in a live lineup, she realized he was not the gunman. In March 1995, Detective Tarpley showed her another photographic lineup. She picked out defendant’s photograph, telling Tarpley “on the record” she was 80 percent certain defendant was the man, but “off the record” she was 100 percent certain he was the man. Redondo explained she had not wanted to be the only person to identify defendant. She did not identify defendant at trial, explaining she was not comfortable because so much time had passed. But she confirmed defendant’s photograph was a photograph of the man she had seen.
Colleen Heuvelman testified she was working at the bank on the morning of January 4, 1991, but had to leave early to take care of her son, who was ill. She was acquainted with Miller and chatted with him for a moment on her way out. She left through a door to the parking lot, turned a comer, and nearly ran into a man standing there. Heuvelman got into her car but continued to watch the man while she put the seatbelt on her son and placed her keys in the ignition; she estimated she observed him for well over a minute. She kept watching because it was unusual to see anyone where the man was standing. She described him as a White male, approximately 46 to 48 years old, with high cheek bones, the mustache of a man who had not shaved in three or four days, thin lips, and very dark eyes. He wore a coat and a dark-colored watchman cap. He had a bit of graying hair sticking out from under the cap. When Heuvelman got home, she learned Miller had been shot in the bank’s parking lot. She immediately called the police, telling them she thought she might have seen the gunman. The following day, and again about two months later, police showed Heuvelman a number of photographs, but although some resembled the man she had seen, his picture was not among them. In 1995, Detective Tarpley showed her a photographic lineup
Lorraine Ripple, who had committed a large number of robberies with defendant, admitted to multiple convictions for robberies committed in 1987 and 1991. She also admitted she had been convicted of assaulting a prison guard, and stated she would be spending the rest of her life in prison. She said she had not been promised anything in return for her testimony and would not benefit from it; to the contrary, she believed her overall situation would be made more difficult. Ripple testified she had known defendant since the early 1960’s and had spent time with him on and off over the years. In March 1991, after being released from prison, she lived for a while with Deborah Lankford. During that time, defendant spent five days a week with her. He was married at the time and spent weekends with his wife. Ripple reported that once when they were in bed together defendant told her he had killed someone in Tustin, telling her it was “an easy score, that he had hit a guy inside a bank, coming out. And [the victim] had a business, a little mini store . . . and he cashed checks for a lot of ‘wetbacks’ . . . .” Ripple testified defendant had given her the gun he used to kill Miller, which she described as a .22-caliber automatic handgun that ejected casings. She later traded it to a Mexican connection for drugs.
Ripple stated defendant always had a mustache in 1991. He had a blue windbreaker and a navy knit watchman cap he wore with the cuff turned up. He used glasses for reading, but did not normally wear them at other times. When shown a June 1991 picture taken of defendant wearing a windbreaker and a watchman cap, Ripple reported it accurately represented defendant’s appearance at that time.
Ripple confirmed Detective Tom Tarpley had contacted her in 1995, asking if she had any information about Miller’s death. She said she did not tell him anything immediately, but after he had “earned her respect” she told him what she knew, even though she was aware she would receive no benefit for it.
On cross-examination, Ripple agreed that when Detective Tarpley first contacted her he told her defendant had “given her up,” but she said she knew it was not true, asserting investigators always said such things to try to play people off against one another. Defense counsel also brought out, apparently
Detective Steven Rubino testified that in October 1991 he was part of a team that had arrested defendant in connection with another offense. Police searching defendant’s car found in it a loaded MAC-11 semiautomatic pistol, a loaded .22-caliber pistol, extra ammunition for both weapons, a photograph of James Gano, a pill bottle with Lorraine Ripple’s name on it, and two savings passbooks that did not belong to defendant. The .22-caliber pistol was not the weapon used to kill Miller.
C. Defendant’s Guilt Phase Case
Defendant testified on his own behalf. He admitted to “around two dozen” felony convictions, “almost all for robbery,” many of which were for armed robbery. He admitted he had committed bank robberies in 1973 and 1981. He admitted to a series of armed robberies in 1991. He also admitted he was serving a state prison sentence of 44 years eight months, and a federal prison sentence of 53 years eight months. Defendant admitted he had once gone with James Gano to the Alameda Market. He admitted knowing Lorraine Ripple, but disputed her claim that they had been acquainted since the 1960’s, asserting he first met her in March or April 1991, when she was living with his friend, Deborah Lankford. He explained he could not have known Ripple in the 1960’s because he was in prison for most of that decade. He denied ever having an intimate relationship with Ripple. He denied telling her he had committed other murders or telling her the Tustin killing was “an easy score.” He denied giving Ripple a .22-caliber automatic or any kind of gun. He said she had never told him she had given the gun to a connection, but she did tell him she had robbed her connection three times. Defendant stated he had been paroled in February 1990, after 17 years in prison. He initially worked at a restaurant, but began to work for James Gano in late 1990, after Gano started a mortgage company. He recalled working on a loan for Elaine Tribble, stating he had visited her at her home in Long Beach about a half-dozen times. He thought he might have delivered mortgage documents to her at her home on January 4, 1991, and he testified that after
Defendant denied standing outside the Sunwest Bank at 10:30 a.m. on the morning of January 4, 1991, or shooting anyone there. He suggested he could not have been the man in the parking lot because, unlike that man, he wore glasses, stating he wore glasses in prison before his release on parole in 1990 and continued to wear them thereafter.
On cross-examination, defendant admitted he had been out of prison for various periods from 1966 until 1990, sometimes because he had escaped; it thus was possible for him to have become acquainted with Ripple in the 1960’s. He also admitted committing armed robberies on 11 occasions during those years. He admitted gambling and using drugs in 1991, but stated he did not start using until February of that year, approximately one month after Miller was killed. He admitted committing approximately 10 robberies with Ripple. He also admitted he and Deborah Lankford had once broken into a residence and robbed the occupants at gunpoint, taking their savings passbooks. He believed the passbooks had been recovered from the trunk of his car when he was arrested in October 1991.
Defendant’s friend, Deborah Lankford, testified for the defense. She admitted she was in state prison serving an 11-year term for armed robbery, had committed a number of other felonies, including numerous armed robberies and several bank robberies, and would later be going to federal prison. She said she had known defendant for nearly 20 years, but denied having any romantic or sexual relationship with him. She testified that during 1990 and early 1991, defendant was living in Fullerton, near a restaurant where he worked. His wife-to-be, Vicki, joined him on the weekends. Lankford provided an alibi for defendant, asserting he had been at her house every day in early 1991 taking care of her because she was sick with the flu. She thought he might have taken her to a clinic on January 4, 1991.
Lankford testified she introduced Ripple to defendant in 1991. She never saw anything suggesting defendant and Ripple were romantically involved, but she reported that by June 1991, Ripple was talking about defendant as if he belonged to her. Ripple also seemed to believe Lankford was in a sexual
On cross-examination, Lankford admitted she had not told anyone defendant might have been with her when Miller was shot, even though she had been in regular contact with defendant and knew he had been accused of murdering Miller. The prosecutor showed her a letter defendant had written to her in which he made a number of sexual comments and described “doing it” to her in the dining room and up the stairs into the bathroom. Lankford claimed she had not received the letter. She admitted defendant sometimes made sexual remarks to her, but said again that she had never been intimate with him, theorizing that by “doing it,” defendant might have been referring to taking drugs. The prosecutor also asked Lankford about Federal Bureau of Investigation (FBI) records detailing a statement she had made. She denied making the statement, denied involvement in the crimes described in the records, and denied she told agents defendant had a gambling habit. She also said she did not recall defendant wearing a dark-colored windbreaker jacket or a navy blue watchman cap. When she was shown the June 1991 photograph of defendant wearing the jacket and cap, she responded she could not say the photograph was of defendant and did not recognize the clothing.
Elaine Tribble confirmed that in late 1990 and early 1991 she was talking to defendant about obtaining a loan from James Gano’s mortgage company. She recalled defendant had come to her home in Long Beach on several occasions, but she could not remember which days he visited or exactly when she filled out the mortgage application. She had been unable to locate any of the loan documents and could not remember if they had been returned to her.
Miller’s fiancée, Holly Daniels, testified she had worked at or visited the Alameda Market in late 1990 and early 1991. She was very familiar with James Gano and had seen him at the market, but she did not recall that he had ever brought any friends with him and did not remember seeing defendant. She thought that Larry Jones, the man originally picked out of a photographic lineup by Bettina Redondo, might have been ejected from the market for drunkenness.
Sergeant Mark Bergquist, who had been involved in the first phase of the investigation, confirmed that Redondo had picked Larry Jones out of a photographic lineup. He recalled both America Miller and Holly Daniels saying Armando Miller had forcibly ejected Jones from the market. Bergquist
No one who had seen the man in the bank’s parking lot said he wore glasses. Heuvelman was particularly struck with the man’s deep-set eyes and specifically stated he had not worn glasses. John Sano, defendant’s parole officer in 1990 and 1991, testified he thought defendant might have worn glasses in 1990. Sano remembered defendant having a mustache but did not think it was the style of mustache described by the prosecution’s witnesses. But on cross-examination, Sano agreed he was unlikely to remember if a client had worn glasses on a particular day or to perfectly recall the appearance of a client’s mustache. He also agreed defendant was not wearing glasses in a photograph taken of him on the day of his release and had not worn glasses on that day.
Optometrist Dr. Erie Bass testified he had provided glasses to defendant in 1990. He stated his records indicated that, although defendant needed some correction to see distance in his right eye, he required only a very slight correction to his left eye for distance. In his opinion, a person with defendant’s prescription would have difficulty reading, but would be able to see and probably would be permitted to drive without correction.
Susan Maitland, the sister of defendant’s former wife, Vicki, testified she had been acquainted with defendant since the late 1980’s and had socialized with defendant and Vicki in late 1990 and early 1991. She said defendant always wore glasses, was clean and neat in appearance, and his mustache did not match the mustache described by prosecution witnesses. On cross-examination, she admitted she could not recall if defendant always had the same style of mustache.
D. Prosecution’s Penalty Phase Case
1. Other criminal activity (Pen. Code, § 190.3, factors (b) & (c))
The prosecution introduced evidence of 15 separate robberies committed by defendant, showing further that defendant had been armed during at least 14 of them.
On August 29, 1991, defendant and Ripple committed an armed robbery of a pharmacy and its owner. Defendant was armed with an Uzi submachine gun. On September 4, 1991, defendant and Ripple robbed a pizza restaurant. During the course of the robbery, defendant brandished a weapon that looked like an Uzi. On September 6, 1991, defendant and Ripple robbed a pharmacy in San Pedro and defendant threatened to shoot anyone who followed him. On September 8, 1991, defendant and a woman robbed a florist’s shop in Harbor City. Defendant was armed with an Uzi. On September 12, 1991, defendant and a woman robbed a Hallmark store in Seal Beach, during which they herded everyone to the back of the store and forced an employee to open the cash register. On September 18, 1991, defendant and Ripple robbed a pizza restaurant in Lakewood. Defendant put a gun to the owner’s head. He became upset as the owner fumbled trying to open the cash register, and Ripple admonished him not to hurt the owner. As they left with the money, defendant told the owner: “Don’t come out or I’ll shoot you.” On September 19, 1991, a woman committed an armed robbery of a florist’s shop in Wilmington. After leaving the shop, the woman got into a car driven by defendant.
On September 24, 1991, there was a disturbance at an Alpha Beta supermarket in Hacienda Heights. At the direction of the store’s manager, checker David Clure grabbed a woman who was attempting to run out of the store. As Clure wrestled with the woman near the store’s entrance, defendant drove up in a car that did not have any license plates. Defendant got out, holding a gun in his hand. He said, “Let her go,” and fired the gun into the air. When Clure continued to hold onto the woman, defendant fired another shot into the asphalt near Clure’s foot. He fired a third shot, hitting the building over the entrance to the store, and then fired into the doorframe. Clure released the woman, who got into the car. Another woman was in the backseat of the car, holding a pistol.
On October, 3, 1991, Dolores and Fred Clay, after withdrawing approximately $400 from their bank, were having lunch in a Long Beach restaurant. They noticed defendant and Deborah Lankford at the bar. Defendant and Lankford broke into the Clays’ residence later that day. Defendant pointed a gun at them and pushed Fred Clay back into a chair. Defendant took the Clays’ money, jewelry, and a savings account passbook. The passbook was recovered from the trunk of defendant’s car when he was arrested later in October 1991.
The jury was also provided with certified documents disclosing that defendant had suffered a 1963 conviction for armed robbery, a 1996 conviction for armed robbery, a 1976 conviction for possession of marijuana, a 1967 conviction for felony escape, a 1973 conviction for bank robbery, 1977 convictions for escape from federal custody and bank robbery, a 1981 conviction for bank robbery, and a 1986 conviction for racketeering and extortion.
2. Victim impact evidence (Pen. Code, § 190.3, factor (a))
Armando Miller’s father, Robert Miller, testified that Armando was his oldest son. Robert was working at the family’s market when someone from the bank called, telling him there had been a robbery and Armando had been shot and was being taken to the hospital. At the hospital, a doctor told him Armando had been shot in the head and was brain dead. Robert said it felt like “falling in a hole . . . something you’re not expecting and it’s hard to believe.” He said the hurt and the sadness never go away; “[t]he only thing you can do, I guess, is just keep on going and think of other things in your life____”
E. Defendant’s Penalty Phase Case
The defense presented no evidence at the penalty phase.
II. PRETRIAL AND GUILT PHASE ISSUES
A. Delay in Bringing Charges
Defendant, noting that the police had learned his name from the anonymous caller on August 3, 1993, but charges were not filed against him until June 23, 1995, contends the case should have been dismissed for investigative delay. We disagree.
A defendant’s state and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a charging document has been filed.
(People
v.
Nelson
(2008)
A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time.
(People v. Archerd, supra,
3 Cal.3d at pp. 639-640.) Prejudice to a
Defendant claims he met his burden of showing prejudice from the precharging delay through evidence that Elaine Tribble could not remember the specific date defendant had delivered mortgage documents to her in Long Beach and was unable to produce any documents that might have supported his claim of visiting her on January 4, 1991. But defendant made no showing that Tribble’s recall would have been more specific had she been contacted earlier, or that she could or would have provided documentary evidence to support his claim. To the contrary, Tribble said she could not remember if any mortgage documents had been returned to her, but if they had been, she had probably destroyed them. Defendant’s claim that Tribble would have provided further support for the defense had police arrested defendant earlier is thus mere speculation.
Defendant also complains the delay caused his memory and the memory of James Gano to fade, but again he made no showing of actual prejudice. The record reflects that both defendant and Gano had detailed recall of events occurring on or near January 4, 1991. For example, defendant could describe Tribble’s house and its location. He recalled Tribble had told him she had changed her mind about the loan because she would be getting a loan from a family member. He stated that after returning the loan documents to Tribble, he went to Wilmington and then to San Pedro to talk to a prospective client but was unable to find the prospective client. He then called the mortgage company from a pay phone in San Pedro located on Gaffney Street between Second and Fourth Streets, speaking with Gano’s partner. Gano did not testify at trial, but at the preliminary hearing he specifically recalled defendant had come to his house on the evening of January 4, 1991. Gano provided
Defendant also complains the delay rendered him unable to obtain telephone records from the mortgage company that would have shown he called the company from San Pedro on January 4, 1991. When defendant first raised the issue of precharging delay, the mortgage company records appeared to have been lost or destroyed, but by the time defendant testified at trial, the records, comprised of eight boxes found in a storage locker, had been located and examined. Defendant submitted the declaration of his investigator, Kristin Smith, that she had searched through all eight boxes of records for any loan documents that might have related to Elaine Tribble and for any telephone bills for calls received on January 4, 1991. She found telephone billing statements for August 1991 and January and February 1992, but no records for January 1991. Defendant has not shown Smith would have found additional records had the investigation proceeded more quickly.
Defendant also failed to show the delay prevented him from obtaining records from the telephone company. His investigator, Smith, asserted that on August 22, 1997, she requested copies of billing statements for Money Funders Mortgage that included January 1991, but was told the telephone company’s records extended back only to August 1991. Assuming, as Smith’s declaration suggests, the telephone company kept records for a six-year period, defendant had nearly one and a half years after the date of his arrest in which to obtain the records he claims would have exonerated him. Further, evidence of a call made on January 4, 1991, would not have provided him with an alibi. According to defendant’s testimony, the call was made after he visited Tribble and conducted other business, suggesting that if it was made at all, it was made long after the murder.
Defendant, accordingly, did not meet his initial burden of showing prejudice resulting from the precharging delay. The prosecution therefore was not required to show justification for the delay, and the court had no obligation to
But “[a] court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. ‘. . . Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay ....’” (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) For the same reason, the difficulty in allocating scarce investigative resources provides a valid justification for delay.
We conclude defendant is not entitled to relief on his claim of precharging delay.
B. Denial of Motion for Pretrial Lineup
Defendant, before trial, filed a motion for a physical lineup for the purpose of exploring whether he could be identified by Bettina Redondo, Colleen Heuvelman, or any other witness. He contends the trial court abused its discretion by denying the motion. We disagree.
In
Evans v. Superior Court
(1974)
Defendant’s motion, filed on December 30, 1996, was untimely. The complaint charging defendant with the murder of Armando Miller had been filed on June 23, 1995, defendant made his first court appearance in the matter on July 28, 1995, and the preliminary hearing was held on December 14, 1995. Detective Tarpley testified at the hearing that Bettina Redondo and Colleen Heuvelman had picked defendant out of photographic lineups. Defense counsel also observed that identification was a material issue, noting Redondo at one time had identified another man as the gunman, although she later recanted that identification. Defendant, therefore, was well aware that the ability of the witnesses to identify him would be an issue at trial. In
People
v.
Baines
(1981)
In addition, unlike the situation in
Evans
v.
Superior Court, supra,
Under the circumstances presented here, due process did not require affording defendant a pretrial lineup.
C. Judicial Misconduct
Defendant contends the trial court denied him a fair trial and an impartial jury by making quips and sarcastic comments throughout the proceedings. He complains, further, that the court improperly allied itself with the prosecution and created a hostile atmosphere for the defense.
“ ‘Although a jury trial, especially for a capital offense, is obviously a serious matter, “Well-conceived judicial humor can be a welcome relief during a long, tense trial.” ’ ”
(People
v.
Monterroso
(2004)
In addition, a defendant who fails to make a timely objection to the claimed misconduct forfeits the claim unless it appears an objection or admonition could not have cured any resulting prejudice or that objecting would have been futile.
(People v. Sturm, supra,
1. Disparaging counsel and exhibiting hostility toward the defense
The court directed a number of sarcastic remarks toward defense counsel, but it by no means spared the prosecutor, 5 indicating its comments were a matter of personal style, not the result of a belief that any of the attorneys was incompetent or that the defense case lacked merit.
Defendant also specifically cites an admonition made by the court during defense counsel’s closing argument after the prosecutor had objected that counsel had no evidentiary support for an asserted fact. The court stated it did not know if there was any evidence on the point. It then said: “Ladies and Gentlemen, if either side’s attorney intentionally misrepresents any fact during the course of the trial, including their argument, of course, and you think they’re lying to you, you can disregard their whole argument if you want to. [f] Go ahead.” Defense counsel, without objecting, responded, “Thank you,” and returned to his argument. Later, outside the presence of the jury, the prosecutor asked for an admonition. Defense counsel stated he, too, was not “thrilled” with the court’s statement. The court denied the prosecutor’s request, stating it had only told the jury “what is common sense.”
The prosecutor, clearly concerned about the court’s remark, later told the jury he did not believe defense counsel had been lying and did not think the court meant to suggest counsel was lying, explaining the court was simply telling the jury what the attorneys say is not evidence. The prosecutor continued: “So, I would implore you, please, do not disregard everything [defense counsel] said. He made some points. [][] It’s valid for you to listen to his points, to consider his points. And I would admit to you, and I would tell you right now, he did not intentionally misstate anything.” At the conclusion of the prosecutor’s closing argument, the court told the jury: “Sometimes the attorneys get overly sensitive about things that the court says. I just want you folks to know that I think that the three lawyers that have worked in this case are the finest lawyers around. I have worked with them for years. They’re honorable people. [][] The court doesn’t have any belief that anybody lied to you about anything. I made reference to that at the request of the prosecution.”
But although we find the court should not have made the comment, we also find it did not deprive defendant of a fair trial. By the time the comment was made, the jury was fully familiar with the court’s judicial style, and the court’s later assurance that all of the lawyers were honorable people limited or eliminated any prejudice from its earlier remarks. Any possible prejudice was further reduced by the court’s subsequent instruction that jurors should disregard anything suggesting the court’s own assessment of the facts or the credibility of any witness and should form their own conclusions. When considered in the context of the trial as a whole, the court’s comment, although improper, could not have had any effect on the jury’s verdict.
2. Joking that prospective jurors would be punished if they spoke about the case
Defendant complains that during voir dire, after admonishing prospective jurors not to talk about the case, the court added: “Because if we catch you talking about the case, we have to have you shot, or some other reasonable form of punishment.” In
People v. Monterroso, supra,
3. Allying itself with the prosecutor and preventing the defense from presenting its case
Defendant asserts the court improperly and prejudicially allied itself with the prosecutor by commiserating openly about defense counsel, taking an
Defendant’s claim that the court commiserated with the prosecutor is based on the court’s comments after the prosecutor complained that defense counsel was testifying rather than soliciting evidence from a witness. The court responded, “I don’t know how to stop him; do you have a hint for me . . . ?” The prosecutor replied, “All I can do is object.” The court then sustained the objection. The court’s response did not suggest an alliance with the prosecutor. To the contrary, the court implicitly chided the prosecutor while making the point it would not rule in the absence of an objection.
As to the claim the court improperly interjected itself into the proceedings to bring out or clarify the evidence, “ ‘a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.’ ”
(People
v.
Sturm, supra,
Defendant complains that the court directed defendant to take off his glasses so Bettina Redondo could see his face. The direction was consistent with the court’s duty to see that justice is done and to bring out facts relevant to the jury’s determination. (See
People v. Santana, supra,
Contrary to defendant’s argument, the court did not prevent defense counsel from testing the witness’s powers of observation or her memory of events. It forestalled an irrelevant discussion of the son’s presence and conduct in the bank. That the son was with Heuvelman and was presenting distractions had never been in dispute. The court’s “silliness” remark, made at the bench, could not have influenced the jury.
Defendant complains the court improperly curtailed his cross-examination of Detective Solis. Solis testified about a field showup during which witnesses were asked if a man found in the area shortly after Miller was shot was the man they had seen in the bank’s parking lot. None of the witnesses identified the man, who was then released. Defense counsel later asked if Solis recalled a witness had said the man fit the gunman’s profile. The court summoned the attorneys to the bench and remarked that Solis’s report of a witness’s statement would be hearsay. Defense counsel asserted the evidence was being offered to test the detective’s credibility or recollection, not for the truth of the matter stated. But because Solis’s ability or inability to recall the details of the field showup could not have aided the defense, it is likely the defense was soliciting hearsay evidence. In any event, the field showup took place
because
the man resembled the descriptions of the gunman; that a witness agreed he resembled the gunman added nothing to the defense case. Finally, Solis had little reason to recall if a witness confirmed the resemblance; the important point to him would have been that the witnesses said
The proceedings relating to defense investigator Douglas Portratz are somewhat more disturbing, although for reasons having nothing to do with judicial misconduct. Portratz spoke with witness Bettina Redondo in January 1997, a few months before trial commenced. Redondo testified Portratz showed her photographs of defendant and of James Gano’s brother-in-law, Craig Elz, compared them to the composite drawing Redondo had helped prepare, told her Elz’s photograph more closely resembled the drawing than defendant’s photograph, and told her Elz had been involved in another robbery. Redondo felt Portratz was trying to convince her Elz had murdered Miller. The court called the attorneys to the bench and asked the prosecutor if he had caused Portratz to be arrested for attempting to dissuade a witness. When the prosecutor said no, the court said: “Why not? I mean, I haven’t seen a better case for it than this, [f] . . . [1] Is it in the scheme of things, I hope?” The court’s remarks, made out of the jury’s hearing, could not have caused the jury to think the court believed the defense team had acted dishonestly. Defendant, however, asserts the comments must have had a chilling effect on the defense. But that the court was legitimately concerned a defense investigator may have attempted to influence a witness should not have caused the defense to shy away from presenting legitimate evidence to support its case. Further, nothing in the record hints that the court’s words chilled defense efforts. To the contrary, after the bench conference defense counsel cross-examined Redondo at length, exploring Redondo’s reasons for believing Portratz was trying to convince her Elz was the murderer; making the point that other persons, including Elz, generally met the description of the man Redondo had seen; and eliciting Redondo’s statement she could not be certain defendant, as he appeared at trial, was that man. The jury also heard a tape of Portratz’s interview with Redondo and was provided with a transcript of the interview. The defense therefore was able to, and did, use material from the interview to suggest Redondo may have been mistaken, and the jury was fully informed about the statements both Redondo and Portratz made during the interview.
Defendant next complains the court repeatedly denied defense requests for a sidebar conference, while granting the prosecution’s requests. He provides two examples. In the first, defense counsel, after objecting to the form of the prosecutor’s question, asked if the court wished the attorneys to approach the bench. The court overruled the objection and denied the request to approach. In the second, defense counsel, during the prosecution’s redirect examination of a witness, objected that the prosecutor seemed to be misrepresenting that
Defendant asserts the court unfairly and improperly suggested defendant’s wife had been in jail. He mischaracterizes the court’s words. Defense counsel had asked Lorraine Ripple if she recalled when defendant got married. The court stated: “That’s hearsay, counsel. Sustained. She’s probably in custody now.” In context, it appears the court was referring to Ripple’s time in custody, observing that because Ripple was in custody at the time of the wedding, anything she said about it would be based on hearsay. Further, defendant did not object or seek an admonition, forfeiting his claim of error.
The court also on many occasions sustained defense objections and sometimes made its own objections to the prosecutor’s questions. It also on its own initiative acted to protect defendant. For example, after defense counsel asked Lorraine Ripple if Detective Tarpley had said why he had contacted her, the court called counsel to the bench and warned that the question might open the door to evidence that would cause the jury to learn about all of defendant’s criminal activity.
In sum, the record does not support defendant’s claim that the court allied itself with the prosecutor against him, prevented him from exploring weaknesses in the prosecution’s evidence, or prevented him from presenting a full defense.
4. Biasing the jury toward the death penalty
Defendant complains the court expressed a pro-prosecution bias during voir dire by suggesting it favored the death penalty and believed persons willing to impose the death penalty have more character or inner strength than persons who would choose against death.
“[T]rial courts should be evenhanded in their questions to prospective jurors during the ‘death-qualification’ portion of the voir dire, and should
In a related claim, defendant asserts the court during voir dire twice improperly insinuated a sentence of life without the possibility of parole might not mean defendant would be imprisoned for the rest of his life. Defendant somewhat mischaracterizes the court’s comments. The court again was acknowledging that both death and life without the possibility of parole are significant penalties and explaining that if the trial reached the penalty phase, the jury would be required to choose one or the other. It explained that although it was impossible to guarantee the jury’s verdict would be enforced, that uncertainty should not distract jurors from the gravity of their decision. The court thus explained that, generally speaking, a sentence of life without the possibility of parole means the defendant will spend his life in prison and will die there. It later stated; “Previously I told you that for purposes of your decision, you have to assume that the government will keep the man locked up for his entire life and he’ll die in prison. That’s the assumption you have to make. We’re not telling you and guaranteeing to you that that’s true. We’re simply trying to impose upon you the gravity of your responsibility as jurors, [f] And with regards to that very strong gravity of your responsibility, you must assume that if you impose life without parole, that means what it says; if you impose the death penalty, that means that ultimately the death penalty will be carried out.” The remarks were not made in a context that would convey to the prospective jurors that defendant might be released if the jury did not impose a verdict of death; the court was impressing on them that they would have no option but to impose one of two harsh penalties were they to return a verdict finding defendant guilty of first degree murder.
Defendant complains the court rushed the jury toward a verdict of death by observing at the end of the guilt phase that juries generally have no reason to listen to all the testimony a second time. He cites the court’s remark that the
We conclude defendant is not entitled to reversal for judicial misconduct.
D. Admission of Evidence of Threats to Ripple and Her Family and Evidence of Defendant’s Gang Affiliation; Prosecutorial Misconduct
Defendant contends he suffered irremediable prejudice, requiring reversal of the judgment, because Lorraine Ripple was allowed to testify that he was affiliated with a gang and to suggest he had threatened her and her sons to prevent her from testifying.
The first mention of what defendant now claims was inadmissible evidence occurred in response to questions by defense counsel. The prosecutor had elicited from Ripple testimony that defendant had told her he killed someone in Tustin who had a little ministore that cashed checks for “wetbacks.” She also stated defendant had given her the gun he used, which she had later traded for drugs. During cross-examination, defense counsel explored several areas with Ripple and then asked if police investigators had offered her some kind of benefit in exchange for her agreement to testify. She replied that an investigating officer had offered to put in “a good word” to have her transferred to the California Institution for Women (CIW) for the trial and that she had responded, “yeah, that’s some deal.” Before counsel asked another question, Ripple added: “And it’s like right now, I’ve got my son, all my friends, I have got two letters in the past week, one from Arizona prison, one from Leavenworth that are flat out: don’t take the stand, don’t say a word. And I’m—you know, I’ve got a lot of problems even with my sons over this.” Defendant did not move to strike the comments or ask the court to admonish the jury.
On redirect, the prosecutor referred to Ripple’s outburst, saying: “I think you indicated something about having sons in Arizona, things of that nature,
Defendant did not at that time move to strike or seek an admonition to the jury. But after Ripple’s testimony concluded and the jury was excused for the day, defendant moved for a mistrial, arguing that the prosecution had elicited improper character evidence about gang connections and letters threatening the witness. The court denied the motion. On the following day, after further discussion, the court adopted the prosecutor’s suggestion to treat defendant’s motion for a mistrial as a timely objection to the evidence. It then admonished the jurors: “During redirect examination, the defense objected to a portion of witness Lorraine Ripple’s testimony regarding possible retaliation against herself or family members. Upon further reflection, the court believes ... the objection to be a proper one. You are therefore instructed that the answer of the witness dealing with that limited portion of her testimony is stricken. You are hereby instructed not to consider or discuss that portion of her testimony in any fashion in deciding this case.”
The present case illustrates the reason for the foregoing rule. During Ripple’s testimony on redirect examination by the prosecutor, wherein she referred to threats of retaliation against herself and her sons, defendant’s only objection was that the testimony was hearsay, but he now complains that the evidence was irrelevant and inflammatory. A timely objection on those grounds, if sustained, would have prevented any further testimony on the subject of threats and would have allowed the court to make an admonition to reduce any prejudice from the testimony already heard by the jury.
Nonetheless, in light of the trial court’s decision to treat the matter as if defendant had made a timely objection, we will review the merits of his argument. As defendant observes, this court has held that evidence of a third party’s attempt to intimidate a witness is inadmissible against a defendant unless there is reason to believe the defendant was involved in the intimidation. (E.g.,
People v. Williams
(1997)
Defendant’s related argument that the prosecutor committed misconduct by eliciting evidence of defendant’s gang affiliation and possible threats to Ripple also fails. A prosecutor commits misconduct by intentionally eliciting inadmissible testimony.
(People v. Smithey
(1999)
In any event, the gang reference was brief and indicated only that defendant had once been a member of a gang. It could not have prejudiced defendant in the eyes of the jurors, who were fully aware defendant was a dangerous man who had committed numerous violent crimes and had spent a substantial portion of his life in prison. Finally, any possible prejudice was dispelled by the court’s admonition to the jury to disregard that portion of
Defendant also complains that even if evidence of threats against Ripple or her family members was admissible, the prosecutor committed prejudicial misconduct by asserting during closing argument that Ripple was testifying “at great risk to herself and great risk to her family,” because the court had admonished the jury that it should not consider evidence of retaliation against Ripple or her family. The court’s admonition, however, was not a blanket instruction to disregard all evidence of threats against Ripple; it was directed toward Ripple’s responses to the prosecutor’s questions during redirect examination. Other evidence also tended to show Ripple had reason to fear retaliation, such as her responses to defense counsel’s questions, Deborah Lankford’s testimony about telling friends in the prison system that Ripple was informing on defendant, and Lankford’s concession that a prisoner risked his or her life by informing on someone. The prosecutor was entitled .to draw an inference from this evidence that Ripple knew her testimony was putting her and her family at risk. “ ‘Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide.’ ”
(People v. Letner and Tobin
(2010)
We conclude, for the reasons we have stated, that defendant has shown neither that the trial court erred nor that the prosecutor committed misconduct.
E. Admission of Evidence of Defendant’s Arrest for an Unrelated Crime and of the Weapons and Pill Bottle Found in His Possession at the Time of His Arrest
Defendant contends reversal is required because Detective Steven Rubino, who arrested defendant in 1991 for an unrelated crime, was permitted to testify about guns and ammunition discovered during a search of defendant’s car, and because the guns and ammunition were shown to the jury.
The complained-of testimony followed the examination and cross-examination of Lorraine Ripple. Defense counsel, apparently seeking to discredit Ripple, asked if investigators had ever told her defendant had “given her up?” Ripple responded that Detective Tarpley had told her a pill bottle with her name on it had been found in defendant’s car at the time of his 1991 arrest. Counsel then asked if Ripple had told Tarpley she had been involved with defendant in other murders, eliciting her testimony that defendant had given her the .22-caliber murder weapon after Ripple told him she needed a
On redirect, Ripple testified it was common for anyone in her circle of acquaintances who needed a gun to ask for one and to give it back later. She described a number of weapons that had been “floating around," also testifying she had seen defendant with a MAC-11 semiautomatic pistol and a .22-caliber handgun that was not the gun used to kill Miller. The prosecutor then showed Ripple several firearms contained in evidence envelopes. Ripple stated that a MAC-11 and a .22-caliber handgun looked like those she had seen in defendant’s possession. She identified a .38-caliber handgun as her own, saying she had used it in several robberies.
Defendant did not object or seek an admonition. But as discussed previously, he moved for a mistrial after Ripple’s testimony was completed. We earlier considered and rejected the argument that a mistrial should have been granted because Ripple had linked defendant to a gang and expressed her belief that her cooperation in defendant’s prosecution threatened her own safety and that of her sons. As relevant here, counsel also complained that the jury had seen guns unrelated to Miller’s murder, asserting jurors were likely to assume defendant had used the guns during the commission of other crimes. The court denied the motion for a mistrial and adjourned the proceedings for the day.
The following morning, before the jury was called in, defense counsel expressed concern that prosecution witness Detective Steven Rubino would testify that the guns had been recovered during a search of defendant’s car in connection with an unrelated crime. Counsel argued that evidence defendant had possessed weapons on another occasion was irrelevant, cumulative, unduly prejudicial, and “pushed up . . . against the edges of’ impermissible character evidence.
By this time, the defense had requested a psychiatric examination of Ripple and had expressed its intent to discredit her testimony by establishing she was
Rubino then testified, without defense objection, that in October 1991 he was part of a multijurisdictional criminal apprehension detail that led him and approximately nine other officers to follow defendant to a parking lot where defendant’s car was parked. Rubino testified he then contacted defendant. The prosecutor asked, “When you contacted him, was he contacted by several deputies with guns drawn?” Rubino said yes. Defendant did not object. Rubino then testified he searched defendant’s car, finding a loaded MAC-11 semiautomatic pistol under the right front passenger seat, a loaded .22-caliber pistol under the driver’s seat, some additional fully loaded magazines, a photograph, and a plastic vial with Lorraine Ripple’s name on it. He said the .22-caliber pistol was not related to Miller’s murder.
After Rubino was excused and the jury was in recess, defense counsel again asked for a mistrial, complaining the detective’s testimony was even more prejudicial than anticipated. The court denied the motion.
Evidence a defendant possessed weapons that were not used to commit a crime is inadmissible to show the defendant committed the crime.
(People
v.
Riser
(1956)
Defendant also contends the evidence was inadmissible under Evidence Code section 1101, subdivision (a): “[E]vidence of a person’s character ... is inadmissible when offered to prove his or her conduct on a specified occasion.” But subdivision (a)’s restriction on the use of character evidence has no application when the evidence is offered on the issue of a witness’s credibility.
(People v. Stern
(2003)
Defendant contends he was excused from the necessity of making a timely objection or request for admonition because the trial court’s rulings on the objections he made both before and after Detective Rubino’s testimony demonstrated that a further objection or request would have been futile. (See
People
v.
Hill
(1998)
Finally, evidence defendant possessed weapons at the time of his arrest in October 1991 could not have prejudiced defendant, who admitted to multiple armed robberies, including a series of armed robberies during that year.
For all the above reasons, we conclude the admission of evidence of defendant’s 1991 arrest and the weapons and pill bottle found in his car at the time of his arrest provides no basis for reversal.
F. Lorraine Ripple’s Psychiatric Records
During cross-examination, defense counsel asked Ripple if she had any history of mental health treatment. She replied she had recently received treatment for trouble sleeping due to isolation. She also spoke of a long-term personal and professional relationship with a psychologist who was writing a book on prolonged isolation. Defense counsel subsequently filed a motion to appoint a psychologist to examine Ripple for mental illness and requested access to Ripple’s psychiatric, disciplinary, and drug treatment records. In
The trial court did not order the examination, but it ordered California’s Department of Corrections to release Ripple’s psychiatric records to the court. After reviewing the records in camera, the court explained it had balanced defendant’s need for the records against Ripple’s privacy rights and had determined the records contained nothing of particular value to the defense. The court read to the jury the only portion of the records it found relevant to defendant’s argument that Ripple’s credibility was affected by her mental health problems: “ ‘Ripple, Lorraine. Since inmate Ripple, W27065, is not suffering from a serious mental disorder, and since more than six months has elapsed since her previous self-destructive behavior, it is recommended that the “Sharps restriction” described in my chrono dated 5/28/96 be lifted, [f] Although Ripple is perhaps a no greater than average risk of dangerousness to herself at this time, this does not mean that her dangerousness to others has declined.’ ”
Defendant does not dispute that the trial court properly reviewed the psychiatric records in camera. (See generally
Pennsylvania v. Ritchie
(1987)
As an initial matter, whether defendant’s arguments are properly directed at the right of confrontation is far from certain. “ ‘The main and
We need not resolve the question here. Claims such as defendant’s implicate the fundamental fairness of trials and are therefore subject to analysis under the due process clause of the Fourteenth Amendment to the United States Constitution.
(Pennsylvania v. Ritchie, supra,
Defendant could not have used the records to argue Ripple suffered from a mental health problem affecting her credibility. The records do not suggest Ripple suffered from delusions or hallucinations, nor do they contain any reports of cognitive difficulties or other problems that could have affected Ripple’s ability to perceive, recall, or describe events, or her ability or willingness to tell the truth. Defendant cites references in the records to “antisocial personality disorder” and “psychopathy,” but the terms are not
Defendant’s chief argument has nothing to do with Ripple’s mental health. He contends disclosure of the records would have allowed him to impeach Ripple by showing she was promised a significant benefit for testifying against him and was threatened with harsh consequences should she decline to testify. Defendant claims he could also have shown that both Ripple and Detective Tarpley were untruthful because each testified Ripple had received no benefit for her testimony, with the result the jury would have concluded Tarpley was either untruthful or incompetent, thus fatally undermining the prosecution’s case.
In support of this argument, defendant cites a paragraph in a May 1996 psychologist’s evaluation. The evaluation includes the psychologist’s report of Ripple’s explanation of her reasons for an aggressive outburst at a meeting with the institutional classification committee. It recites that Ripple told him “they” had told her she could do what they wanted or she could rot in the secured housing unit, and they wanted her to testify against her “ ‘ex-old man’ ” “ ‘[b]ecause I ran a lot with the Aryan Brotherhood gang members over the years and saw and know about a lot of killings. My ex-old man was an enforcer for the Chicago Crime Family, John Able [sz'c]. If they think I’m gonna tell them something that’s gonna endanger my sons in prison they’re nuts’. . . . T got upset, I’ll grant you that. They told me if I testified they’d transfer me south. What a deal huh? I can give them information that’ll get my sons killed and trade that for being able to go to a prison down south where I can see my grandchildren.’ ” Defendant also cites the handwritten notes of a psychologist on a master mental health treatment plan dated February 13, 1996: “testify pressing to go to CIW,” and “under pressure from Orange County to testify against high rank leaders . . . .”
Defendant’s argument assumes Ripple was referring to pressure to testify against him in this trial, but if anything, the record suggests Ripple was not talking about this case. There is no evidence defendant was a “high rank leader” of any organization or that Ripple’s asserted experience with the Aryan Brotherhood had anything to do with her testimony in this case. Ripple spoke at trial of her knowledge of many murders, some involving defendant and some involving other persons. She also spoke of providing information about other murders to Detective Mike Proctor, who was not involved in the investigation of this case, and she mentioned she had been approached by a number of other agencies which presumably were interested in obtaining information from her. Defendant’s argument also assumes Ripple’s response to the psychologist concerning her outburst accurately reported what others told her at the meeting, but there is no compelling reason why that should be true. Defendant assumes, without supporting evidence, that Ripple’s decision to testify against him was motivated by the promises and threats she claimed to have received. But Ripple expressed disdain for the promised benefit and further told the psychologist: “Well I stopped doing what men on the street wanted me to do before my arrest and I’m not going to do what those men want either.” Defendant also assumes Ripple’s reference to being transferred “down south” meant an offer of a permanent transfer to a preferred facility as opposed, for example, to a temporary transfer to put her in proximity to the court where she would testify. Finally, defendant assumes Ripple was indeed transferred “down south” as a result of her willingness to testify. But at most the record discloses Ripple was housed at CIW when called upon to testify in defendant’s case. That Ripple had been offered a permanent transfer “down south” in return for her testimony in this case, or had been threatened with anything for failing to testify, is mere conjecture.
Just as the records do not show Ripple received a benefit for testifying, they also do not show defendant could have used them to establish Ripple and Taipley were untruthful. Even had the records provided evidence persons attending the institutional classification committee meeting had made threats and promises connected to this case—and they do not—the records are not
Defendant argues he could have used the records to show Ripple had lied about her mental health because she did not report she had been diagnosed with antisocial personality disorder or psychopathy. But the records do not suggest Ripple was aware of the diagnosis or had any reason to know what the terms meant. Further, Ripple was not asked about her mental health; she was asked if she had been treated for mental health issues. The records do not show Ripple had received or was receiving any significant treatment related to her mental health or any treatment she might reasonably believe had any impact on her trial testimony. The records, therefore, did not provide a basis for impeaching Ripple’s testimony about her treatment.
Defendant also argues the records showed Ripple lied about her criminal history, because when recounting that history to the jury she did not mention all the criminal acts and acts of violence she had reported to mental health personnel. But Ripple’s testimony reflects she was not in the least unwilling to talk about her criminal history, her use of weapons, or her violent lifestyle. That she did not mention every crime or violent act could not have affected the jury’s view of her character or credibility.
For similar reasons, defendant is not entitled to relief on the theory the records would have enabled him to show Ripple was manipulative and had little conscience. Both points were clearly established by Ripple’s trial testimony.
G. Other Claims of Evidentiary Error
Defendant contends the court should have sustained his objection that the prosecutor, when questioning Colleen Heuvelman, asked a leading question. The prosecutor was referring to a photographic lineup that included a photograph of Larry Jones. Heuvelman testified she told police investigators that Jones resembled the man she had seen. The prosecutor, after confirming Heuvelman had told the police that Jones’s “eyes were close,” asked, “Did you tell the police that there was a possibility of 20 to 40 percent?” Heuvelman said yes. The prosecutor then asked: “Did you ever identify [Jones] as being the person that you saw standing outside the bank?” Defendant objected that the prosecutor was leading the witness. The court overruled defendant’s objection, and Heuvelman responded, “No, sir.” Accepting for purposes of argument that the prosecutor’s question was leading, 9 the evidence could not have prejudiced defendant, as other evidence firmly established defendant was the only person Heuvelman ever positively identified as the man she had seen.
Defendant also complains his ability to question Detective Tarpley was compromised because the court sustained objections that some of defense counsel’s questions were leading. But nothing prevented counsel from eliciting the evidence he sought by rephrasing his questions. The court also did not err by overruling a defense objection on hearsay grounds after the prosecutor asked Lorraine Ripple if Deborah Lankford had said anything to Ripple about testifying. The evidence was admitted not to establish the truth of anything Lankford had said, but to bolster Ripple’s credibility by showing she was testifying despite her fear her testimony would compromise her safety.
Finally, the record belies defendant’s claims that the trial court’s rulings had a chilling effect on the defense. The court’s interruptions, quips, comments, and evidentiary rulings undoubtedly were somewhat irritating, but
H. Cumulative Errors
Defendant argues that even if each asserted error, individually, does not require reversal, the errors, when considered cumulatively, undermined the integrity of the trial. We have found merit in only two of defendant’s claims of error: that the trial court should not have admonished the jurors they could disregard an attorney’s entire argument if they believed the attorney had lied to them, and that the court should not have inteijected into the proceedings its personal knowledge of military-style coats.
We conclude that contrary to defendant’s argument, there is no reasonable probability the identified errors had any effect on the outcome of the trial. This is so even if we consider the errors in conjunction with other evidence that we have found to have been admitted without error, such as threats made to Lorraine Ripple, defendant’s sometime gang membership, his arrest for an unrelated crime, and his possession of weapons unrelated to Miller’s murder. The case against defendant was not close. Defendant met the description of the murderer and was positively identified as that man by two witnesses who had taken great care to observe the gunman and who had provided a detailed description of him. Colleen Heuvelman rejected numerous pictures of other men, but positively identified defendant almost immediately upon seeing his photograph. Although Bettina Redondo at one time picked another man out of a photographic lineup and a third man out of a physical lineup, that she recanted each identification and expressed great concern about picking the wrong man added weight to her positive unrecanted identification of defendant’s photograph in the only photographic lineup in which his photograph appeared and her assertion at trial that his photograph was a picture of the man she had seen in the bank’s parking lot. Miller apparently was murdered by a man who knew Miller would be in the parking lot of Sunwest Bank on the morning of the murder, carrying a substantial amount of cash. Defendant, the man identified as the murderer by the witnesses, had been in Miller’s market and had reason to know Miller withdrew substantial amounts of money from the bank on Friday mornings. Ripple, although far from a perfect witness, had been intimately involved in defendant’s criminal activities; that he would confess to her he had killed Miller was not incredible.
We have reviewed the evidence in its entirety and conclude that, to the extent any of defendant’s claims of error have merit, they neither individually nor cumulatively require reversal under either the
Chapman (Chapman v. California
(1967)
The information charged defendant with murder with malice aforethought in violation of Penal Code section 187, subdivision (a). But the jury was instructed with first degree felony murder and convicted defendant of that crime. Defendant, arguing that under our decision in
People v. Dillon
(1983)
As defendant recognizes, we have rejected similar claims on many occasions. We have explained that the statement in the plurality opinion in
People v. Dillon, supra,
A pleading referring only to Penal Code section 187, subdivision (a) provides adequate notice that the defendant might be convicted of first degree murder on a felony-murder theory.
(People
v.
Kipp
(2001)
Defendant cites the admonition in
Apprendi
v.
New Jersey
(2000)
III. PENALTY PHASE ISSUES
A. Effect of the Murder upon Family Members
“Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under [Penal Code] section 190.3, factor (a).)”
(People
v.
Lewis and Oliver
(2006)
Defendant complains, however, that America Miller impermissibly asserted the murder caused the death of her other son, Bobby. A family member may properly testify about the effect of a murder on another family member, and it is not required that the other family member had been present at the scene during or immediately after the crime. (See
People v. Jurado
(2006)
Further, in light of the nature of the crime and the other aggravating factors, including defendant’s criminal history, there is no reasonable possibility America Miller’s statement affected the penalty verdict. (See
People v. Brown
(1988)
B. Denial of Defendant’s Automatic Application for Modification of the Death Verdict
1. Court’s consideration of additional victim impact evidence
Before ruling on defendant’s automatic application for modification of the verdict of death (Pen. Code, § 190.4, subd. (e)), the court permitted Miller’s
In ruling on a defendant’s application for modification of a verdict under Penal Code section 190.4, subdivision (e), the trial court “ ‘must independently reweigh the evidence of aggravating and mitigating factors presented at trial and determine whether, in its independent judgment, the evidence supports the death verdict.’ ”
(People v. Carrington, supra,
2. Suggestion defendant was required to establish mitigating factors “beyond a reasonable doubt”
Defendant, citing the trial court’s statement that it found no “factors in mitigation proven beyond a reasonable doubt,” contends the court misunderstood the standard by which it was to review the jury’s determination of penalty, requiring reversal of the judgment of death. Defendant is correct that because the sentencing function is inherently moral and normative, not functional, it is not susceptible to a burden of proof quantification; neither the prosecution nor the defense has the burden of proof during the penalty phase.
(People v. Moore, supra,
The record therefore reflects that the court thoroughly understood its statutory obligation and carefully analyzed the evidence in light of that obligation. When considered in context, the court’s further statement that it found beyond a reasonable doubt that defendant was guilty and there were aggravating factors and no mitigating factors appears to have been made to emphasize the absence of
any
evidence of mitigating factors, not to suggest defendant was required to prove their presence beyond a reasonable doubt. But even if the court misstated the law, the misstatement seems to have been no more than a slip of the tongue. In
People v. Mayfield
(1993)
C. Other Death Penalty Claims
Our past decisions have repeatedly addressed and rejected the other challenges defendant makes to the death penalty. He states no persuasive reason why we should reconsider settled law.
Thus, we continue to hold that California’s death penalty law does not violate the Eighth Amendment to the United States Constitution or international law
(People v. Moore, supra,
California’s death penalty statute “is not invalid for failing to require (1) written findings or unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt.”
(People v. Snow, supra,
The United States Supreme Court’s decisions in
Apprendi v. New Jersey, supra,
A defendant’s Sixth, Eighth, and Fourteenth Amendment rights do not require an instruction that mitigating factors need not be found by a unanimous jury or by any particular standard of proof.
(People
v.
Lomax, supra,
The inclusion of the phrase “so substantial” in CALJIC No. 8.88, used here (jurors “must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole”), does not render the instruction impermissibly vague.
(People
v.
Lomax, supra,
CALJIC No. 8.88 is not unconstitutional for failing to inform the jury it must return a sentence of life without the possibility of parole if it determines the circumstances in mitigation outweighed those in aggravation.
(People v. Lomax, supra,
The failure to require intercase proportionality review does not render the death penalty law unconstitutional.
(People v. Moore, supra,
D. Cumulative Error
Defendant’s final complaint is that even if reversal is not required by the errors occurring in his trial when considered individually, it is required by their cumulative effect, which he claims undermines any confidence in the integrity of the proceedings. We previously concluded the outcome of the trial was unaffected by the only errors occurring during the guilt phase. Finding no additional errors during the penalty phase, we reject defendant’s complaint for the reasons we have already stated.
We affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.
Notes
Because the law under the California Constitution is at least as favorable to defendant as federal law, we apply California law to defendant’s claim. (See
People
v.
Nelson, supra,
Gano testified at the preliminary hearing that he and defendant had been friends since they met in Lompoc in 1978. Gano knew the victim and his family, and had introduced them to defendant. He testified he could not recall if he told defendant about the Millers’ check-cashing operations, but thought it was possible. He recalled defendant asking how the Millers did their banking, feeling concern defendant might harm his friends and warning defendant to leave them alone. On the evening Miller was murdered, defendant came to Gano’s house. He told Gano “he had to pop the kid,” and asked Gano to hide a black steel .22-caliber handgun defendant said he had used to shoot Miller. Gano hid the gun first in his garage and then in the brush near a creek or lake. On the following day, defendant returned, asking Gano for the gun. Gano and defendant retrieved the gun, and defendant left with it.
Detective Solis was told by the caller that a man who owned or worked at an Italian restaurant on Tustin Avenue had said Miller was killed by John Abel, who was then in prison for a series of bank robberies. The caller could not remember the address of the restaurant and said it had closed. She remembered the owner’s first name was John, but she did not know his last name. She also mentioned a man named Bobby might have been involved in the murder. Solis reported that, over the next year or so, he unsuccessfully tried to locate the restaurant, its owner, or someone named “Bobby” who might have been the man mentioned by the caller or who might have known defendant. He also spoke with other investigators who had some knowledge of John Abel, but they were unaware of any connection between Abel and another man named “John” or a man named “Bobby.”
At the hearing on defendant’s motion, the prosecutor asserted: “[D]efendant, at least from a facial hair standpoint, looks quite a bit different than the descriptions back at the time of the crime—[f] . . . R0 ... I don’t think a lineup would tend to resolve the issue here, because he looks a lot different than he did then.” And Bettina Redondo, while confirming defendant’s photograph in the photographic lineup was a picture of the man she had seen in January 1991, declined to state whether defendant, sitting at the defense table, was or was not that man, stating that too much time had gone by.
For example, while questioning Lorraine Ripple about defendant’s facial hair, the prosecutor asked: “[Y]ou are talking about between his lips and then you said sometimes he let it grow beyond his lips?” The court interjected, “Between his lips is in his mouth—Q] . . . Q]—where you put your foot.” On another occasion, after the prosecutor complained defense counsel’s line of questioning was improper and would be unduly time consuming, the court stated: “I have found that you know how to make objections and are reasonably familiar with the rules of evidence, occasionally.” When the prosecutor objected that defense counsel had mischaracterized the evidence by asking Detective Tarpley if Ripple had told him she had robbed one of the individuals who supplied her with drugs, the court responded: “Sure. Rip off the connection, you like that better.” When the prosecutor objected to a defense question, and then attempted to withdraw the objection because he realized the question was likely to lead to evidence favoring the prosecution, the court responded: “Too late. Sustained. Sustained is sustained. [][]... [fl You got to think before you object. Q] . . . Q] But nice try.”
As mentioned above, the trial court, clearly concerned with counsel’s questions, called the attorneys to the bench and warned the defense that this line of inquiry could cause the jury to learn far more about defendant’s criminal history than defendant might wish. Counsel responded that the defense team had discussed the matter with defendant and had decided to ask Ripple about her statements to police that defendant had committed other murders. He explained the statements would support the defense claim that Ripple’s obsession with defendant caused her to fabricate stories about him and his criminal activities.
After trial in this matter was completed, Ripple executed a release of the records, waiving her privacy rights in them. Defendant therefore has reviewed the records in their entirety and cites specific portions to support his arguments.
For example, defendant cites a September 19, 1996, mental health assessment that recites: “Ripple slit throat 2/9/96. Impulsive act after verbal exchange w/ staff. Not seriously depressed then or now. Extreme psychopathy in my opinion. Been 6 months since attempt. No [significant suicide history] noted described. Dangerousness to others ... to self, avg.” The same record reports Ripple’s cognition as “[n]ormal, but antisocial,” and further recites that no perception disturbances were noted and Ripple did not exhibit any delusions or problems with orientation, memory, attention, or concentration.
“ ‘A “leading question” is a question that suggests to the witness the answer that the examining party desires.’ (Evid. Code, § 764.) Questions calling for a ‘yes’ or ‘no’ answer are not leading unless they are unduly suggestive under the circumstances.”
(People v. Harris
(2008)
The prosecutor explained: “I know Ms. Miller said something about her son Bob, Bob having heart problems. Ladies and Gentlemen . . . we’re not suggesting in no way, shape, or form, that John Abel is responsible for the death of her other son. I mean, this is a mother, obviously, in her mind she feels that this somehow impacted her son’s heart. But we’re not asking you to hold Mr. Abel responsible for the heart problems of Bob, Bobby Miller, who eventually died. ['[[] But in her own mind—this is, again, the impact of this crime on this victim and the victim’s family. In her mind, the way she’s dealing with this is she feels the killing of Armando Miller is such a heartbroken event to her other son, who he was close to, that this is what caused his illness, [f] There’s no evidence of that, there’s no proof of that. So I ask you not to consider that the death of Bobby Miller had anything to do with this incident. That is just her impression and it’s part of her victim impact, but there’s no proof of that.”