*1 Dec. 1986.] No. 22879. [Crim. PEOPLE, Plaintiff Respondent,
THE ALLEN, and Appellant. Defendant RAY CLARENCE *12 Counsel *13 Court,
William M. under Lyons, for Defendant appointment by Supreme and Appellant. General, White,
John K. Van de Steve Chief Assistant Kamp, Attorney General, General, Attorney Arnold O. Assistant Overoye, Attorney Ward A. Beaumont, General, and Campbell Garrett for Plaintiff Deputy Attorneys and Respondent.
Opinion
GRODIN, J. is an automatic from a death judgment This appeal imposing under the Code, (Pen. §§ death 190-190.5.)1 We penalty legislation. indicated,
1Unless otherwise statutory all references to this code. are circumstances, and of affirm the verdict guilt, finding special of death. judgment Facts and Procedure
I. back underlie this appeal go leading charges The sordid events victims and third a cast of characters: Numerous and include large to 1974 witnesses, witnesses, at least 10 members various prison party below, is nec- For reasons that will it appear “crime family.” defendant’s outline events detail. essary sequence defendant, old, decided to Fran’s burglarize then 44 June years In market, He known of the and Frances Ray had the owners Market Fresno. Schletewitz, his assistance of son Roger, for over a decade. He enlisted the Jones; latter were ostensibly and Charles two employees Carl Mayfield, for him and son in business and worked his security guard in defendant’s criminal pursuits. various son, to an eve- Bryon, Allen invited the Schletewitz’s 19-year-old
Roger he was defendant’s house. While swimming, swimming party ning while from his Later pants night, Market were taken keys pocket. Fran’s Sue defendant with 17-year-old Mary was on a date arranged by Bryon defendant, his Kitts, Jones used Mayfield Bryon’s keys burglarize house Jones’ a safe and took it market. removed They parents’ Charlotte, in cash wife, where it and divided booty—$500 they opened $10,000 in orders. over money Kitts, Defendant, Sue defendant’s Roger, Mary from son help Doeckel, Carrasco and two additional Shirley persons—Barbara girlfriend orders Furrow—cashed the stolen at southern Eugene money her stepson, Mary Thereafter centers false identifications. by using shopping California Schletewitz and confessed defendant tearfully contacted Bryon Sue Kitts and that had been to cash helping Fran’s Market she burglarized had de- fake and wig provided orders with identification money stolen fendant. *14 this Roger to him with story. Allen’s house confront Roger went to
Bryon store, confirmed had and Bryon the Allen family burglarized admitted had him. When Allen told Roger Sue Kitts confessed to that Mary to Roger defendant, Kitts’ father, Mary based on Sue accusation Bryon’s his Kitts) confession, Sue and would they Mary defendant that responded (Bryon be “dealt with.” to have Schletewitz he had not told and Frances Ray subsequently
Defendant He threat- loved like his own son. store and he Bryon their burglarized Schletewitzes, however, ened the them to that someone was hinting to burn down their house. He also intimidated them planning his by having son $50 Furrow to fire several at their Roger pay Eugene gunshots home one midnight.
Around same time defendant called a at his house meeting and told Jones, Charles Carl and Sue Mayfield, Eugene Furrow Kitts had Mary been too talking much and should killed. for a be Defendant called vote on execution; the issue of it was she Mary Sue’s unanimous that should be killed. reason One for the unanimous vote was that those present feared if defendant did not He his had they go along told plans: previously criminals him working with that he would kill snitches and that he had friends and connections to do the for him even if he was locked job he up; had that the stated “secret witness program” useless because a good address; could an discover informant’s name and lawyer always finally, had numerous times referred to Mafia himself as a hitman. He kept article Nevada, about murder a man and woman newspaper had them claimed he blown in half with a shotgun. vote,
After the defendant to Sue developed plan poison Mary Kitts by her into at a to be held tricking taking cyanide capsules party Shirley apartment Doeckel’s in Fresno. He sent Carl Mayfield Eugene Furrow (one clients) to a to winery security guard pick cyanide up also Defendant some stones from his job. put stepping house the back truck, of Charles Jones’ to be to used down Sue Kitts’ weigh Mary body, which was to be into a canal after the murder. dumped Kitts,
When discussing plan murder Sue defendant Mary overruled Charles Jones’ down,” that she be sent suggestion somewhere until died “things also
He dismissed objection Doeckel’s Shirley a murder being committed her before the apartment. Shortly started at party Shirley Doeckel’s told Furrow apartment, also that it was Eugene as just rid of (Furrow) two as if he easy get one did not persons take Sue’s Mary life.
Defendant left Doeckel’s before Sue Shirley apartment shortly Mary Kitts arrived, first having for his call him from a arranged operatives nearby booth on the phone the execution When report progress plan. Mary wine, Sue Kitts arrived she refused to take the without “pills” Mayfield and Jones so informed defendant Furrow defendant told to kill by phone; one Sue or the Mary way other because he wanted her dead. The just wine, later beer “reds” but partygoers brought apartment Mary Sue still did not met take Defendant Furrow cyanide. subsequently outside the and stressed care how it was apartment that “he didn’t done but *15 do it.” Defendant told him he apartment had and people surrounding Thereafter, tried when (Furrow) would be killed if he to leave.
that he to were he began and Sue Kitts left alone Mary apartment, Furrow a call defendant if he asking her to be from strangle only interrupted by “no”; answered, ordered, “do it” and killed her Furrow defendant yet. had to Furrow then Sue death. hung strangled Mary up. and him to Charles
Furrow called defendant told come up body. pick call, Jones, who was with the defendant when he received the then announced with the him to do murder. Defendant told it was nothing already he wanted Defendant, that he was involved with the others. Shirley done and equally Jones to and and then went which pick up they wrapped Doeckel body, Cadillac trunk. He Jones were all in defendant’s warned that again they put involved. equally Furrow, Doeckel, Cadillac, and in the led Jones and Shirley
Defendant car, house, to defendant’s where transferred the to body in Jones’s they drove, lead, car and then defendant in the to the mountains. They Jones’s after over a canal. Furrow and Jones tied stones with passing stopped and, defendant’s instructions while defendant body pursuant wire to traffic, threw into canal. body watched and all of his bragged Defendant threatened cohorts after the variously When Carl asked defendant how went” a Mayfield “everything murder. said, later, defendant went that “everything okay,” meaning Mary few days been had killed. Kitts Sue asked how Furrow was said he was Mayfield doing,
When later defendant existence, Mexico, it is someone explaining easy go get longer no killed, $50. have the of for About six months after body disposed only and murder, if when asked defendant he was worried about others Mayfield afraid, he was would care defendant said be taken “things talking, killed, that he would and would have snitches that he happened, if that of” of “secret witness” informers even if he was locked care up. take and disease Charles Jones others that was a spreading told “talking He it to kill was to kill the When Jones only talking.” way person house, “none of at defendant’s defendant stated that gathered others that, talked,” that first took what was “they coming,” people [these] not, them When “he would from inside or outside get prison.” did if they some time murder and Jones told after the burglarized home Jones’s defendant told showed he burglary, about the Jones burglary He later Jones a that Jones reached. discovered fit easily gave key be could residence, he knew Jones front Jones’s son five-year-old told his harm.” grow like kids without up “would Jones *16 Sue’s made several Mary Defendant statements after to Doeckel Shirley her, murder, around telling among longer other was no that Furrow things, claim He also his that he had Vegas. and killed in Las repeating a woman Carrasco, Sue often with Barbara “offed Mary he had her spoke telling orders,” he she was her that Kitts because mouth opening money about the in so Furrow the murder him deep involved because to get “he wanted knew,” talk about the armed he he couldn’t that robberies and other things “he would have didn’t go and that Furrow in if Furrow put the same hole herself, with the murder.” defendant along Speaking about Kitts Sue Mary Barbara Carrasco that down and told “had wet her they to ride her up, her to the fishes.” [feed] boasts, fact, defendant had thereafter not he
Despite killed Furrow. In with him—along used Charles at their Jones—to couple rob an elderly store 1974. how- August jewelry Unhappy Furrow’s performance, ever, told him he defendant would if not for have time ago shot him a long (Furrow’s Carrasco Barbara adoptive mother). defendant early
In Robinson brought some Allen new employees, into his he Benjamin Meyer, and crime previously He told family. Meyer a broad them who waste her” helping got “had so had to mouthy they with the fishes.” sleeps “she He bring anybody warned “If you Meyer, house that snitches on me no There’s my I’ll waste them. my family, bush, rock, he could what nothing, hide asked behind . . . .” When Meyer bail, if defendant was arrested defendant happen would not make could heard of the Well don’t “you’ve arm before? long of the law replied, arm of long out and waste you.” underestimate Indian. I will reach later, Schletewitz, time defendant told stating Some about Meyer Ray $50,000 $75,000 Market. He he in a in Fran’s kept second safe he had robbed and that Fran’s first safe Market mentioned by taking was mad at him son- Schletewitz for the that “the stupid but Ray robbery, Schletewitz) (Ray don’t be upset.” have no so he shouldn’t of-a-bitch proof son, with his holding meetings After new men and his Roger, them “case” their first in Tulare. a K-Mart store robbery drove project, a fine robbery, phoned job him on Meyer congratulate After Allen Robinson for “we are chastise He told making Meyer, mistakes. to have and we anything else to do with going anymore, [Robinson] him,” waste for other that he would “be back to might just [him] Defendant’s son Green replace later contacted Roger Larry robberies.” as the “inside man” de- for a planned by number of robberies Robinson fendant. committed an to be the armed that proved in March 1977
They robbery Visalia, of the end. At Green shot a Larry K-Mart store in beginning *17 and defendant. and bystander Meyer him along arrested police Defendant was of robbery, attempted robbery, tried and convicted crime. His arrest also and assault with in this for his part deadly weapon led to Market con- trial, burglary, his second the Fran’s this one for and trial at which numerous Kitts—a spiracy, murder of Sue Mary witnesses, Jones, Schletewitz, Charles Eu- Mayfield, Carl including Bryon Furrow, and tes- gene Doeckel, Benjamin Meyer Carrasco Barbara Shirley tified for burglary, conspiracy, was convicted prosecution. Defendant Kitts, sentenced to and the first and was degree prison. murder of Sue Mary son, Allen, From Kenneth Folsom his second called prison defendant for Sue Kitts’ murder. Mary several about asking article copies magazine Defendant other solicit prisons to send to explained help he wanted them to retaliate him. He repeated against against those had testified who in a request letter to Kenneth. Hamilton, inmate and
Defendant soon a fellow convicted met Billy Ray robber who with defendant in the was who worked housed and nearby Hamilton, who was kitchen nicknamed for prison’s two months in mid-1980. errands and care of “Country,” running taking became “dog,” defendant’s Defendant, had access various who to inmate problems in return for cash. and tell of inmates Hamilton to would photographs, Hamilton give photos inmate, Another locate them for chores. him Gary as one of Hamilton’s errands for would defendant. Brady, running assist Hamilton occasionally 28, 1980; was was Hamilton scheduled Brady scheduled July to be paroled one month parole later. time, After him for some Hamilton and had been helping Brady said he had an taken “out of wanted certain people and appeal coming up box, killed,” and onto his “messed appeal,” because had been “they him around on a beef.” the names “Bryant,” (Bryon), Defendant mentioned killed, to be Charles Jones as witnesses and (Charlotte) and “Sharlene” $25,000 offered Hamilton confided another Folsom Defendant for the job. inmate, first Rainier, murder degree convicted Joseph that he had been on the basis of did the actual who killing,” of “the guy testimony that he would four other like to well as witnesses who see this individual as testified against him killed.
Rainier saw in the prison yard talking together defendant and Hamilton weeks bleachers and on four to six before the track for the every day Hamilton’s and defendant release on Hamilton in late 1980. parole August men huddled would usually close were talking—both when together they After Rainier straighten up, whenever separate approached. stop talking on, defendant stated Rainier asked defendant what was repeatedly going “he’s for me.” [i.e., to take care of some rats going informants] [Hamilton] Rainier, He later told Hamilton, was going “get that Hamilton front of for the job” take care paid transportation” going “Kenny for Hamilton after he could said that probably Hamilton’s release. Defendant “win his if to kill witnesses appeal” killed and offered witnesses were who had testified against Rainier well. as wife,
Defendant Kenneth, asked son, Kenneth’s Kathy, eldest him, and *18 visit did so 15. He told Kenneth they with their on August baby both and Ray to be murdered and that Schletewitz were Bryon going other witnesses so that he would against him would also be eliminated on retrial if he prevail won his He added that Doeckel had Shirley appeal. to agreed change her were he a new trial. testimony granted Defendant explained that to as Hamilton—whom he referred “Country”— do the (and would killing commit a so he could robbery simultaneously have some to money over) tide Kenneth to himself and that he expected supply “Country” with and He stated that guns transportation. “Country” was a professional do,” who would “do him to and what told you gave Kenneth, Hamilton’s shot mug to it after him to burn telling memorizing Hamilton’s face. Kenneth to find for Hamilton with from agreed guns help wife who Kathy, would trade for the and he evidently drugs guns, smuggled Thereafter, Hamilton’s out of in his picture prison baby’s diapers. he received a series of letters from his father detailing evolving plan. letter,
In the first visit, Kenneth, written the after the defendant told day “I to rapped my dog when I back in here .... jammed looking [He] forward all meeting you and it’s with him to smoke your okay pad.” asked Defendant Kenneth to “send me the of that dude that off got name a sentence, with such light sounds . . . and that like okay? lawyer, just be the I might have been with the play for.... I know looking right lawyer beat I could this beef I am Allen faith because there is riding. Keep 20, 1980, times ahead.” good Kenneth another letter dated got August Doeckel, him of a telling second short visit from who was Shirley “willing me in help court and tell it like it Defendant also was.” wrote: really I hear “Hey, around music show is to town country coming September “Show,” testified, 3rd.” murder. Kenneth was a code word for Kenneth 26, 3, a third received letter dated “remember August stating, September music, that date around be old y’all ‘country’ a lot of listening good ” Just for me. You another letter okay? know how I like Yet dated ‘country.’ 3rd, stated August “now have remember around everything September so can ready y’all to that show. I know go y’all music ‘country’ really I ‘enjoy’ yourselves. music before. know kids never liked you ‘country’ I bet when But hear be you that dude on the ‘lead’ guitar you’ll listening
to it at week, least once a about rock and roll and get ha. Anyway, forget lost in the Ha, ha.” country.
Soon after Hamilton was Kenneth wired him paroled transportation money and house, thereafter met him at the Fresno bus At Kenneth’s Ham- depot. ilton Schletewitz, confirmed he was Ray there to murder Bryon asked to see the He he would be would not weapons using. explained kill Shirley Doeckel as because she was him locate the other helping yet hit list witnesses. Barbo,
Hamilton’s girlfriend, him in Connie Fresno. joined During next few days, she told had a chance to she few thousand acquaintances get dollars and a hundred dollars worth of “crank” for out a life.” “snuffing
On Thursday, September Hamilton went Kenneth’s house and got a sawed-off revolver, a .32 shotgun, caliber seven shells from shotgun Kenneth, all to be used to murder Schletewitz at Fran’s Ray Bryon *19 Market. Hamilton discussed the market and said he knew there were two there, safes one in the wall and other in the freezer. He left in the evening Barbo, Connie he Kenneth was to murder telling going Ray and Bryon however, Schletewitz. returned about 9:45 They p.m., explaining aborted they the execution because Connie to a objected killing 15-year- old Mexican who was in the store that boy night.
The next Kenneth 13 evening Hamilton took from additional shotgun shells, 6 more and went with Connie Barbo back to Fran’s Market. cartridges, When time, they arrived at 8 before just closing Bryon Schletewitz p.m., and employees White, Douglas Scott Rocha and Joe Rios were Josephine there. after Shortly entered Hamilton brandished the sawed off they shotgun and Barbo White, produced the .32 Hamilton led caliber revolver. Doug Rocha, Josephine Joe Rios and Schletewitz toward the stockroom Bryon and ordered them to lie on the floor.
Hamilton freezer, told walk to the Doug White to get up warning White he knew there was a safe inside. When White told Hamilton there there, nowas safe out ‘Briant.’” Hamilton At that responded, “get point volunteered, Schletewitz Bryon “I am Hamilton’s de- Following Bryon.” mand, Bryon his he would gave and assured Hamilton him all up give keys he money wanted.
While Barbo led Hamilton to the guarded other employees, Bryon where, stockroom from Hamilton seven to twelve inches shot away, fatally in the him center of his sawed-off Hamilton shotgun. forehead with the White, from the stockroom and asked where’s emerged “Okay, big boy, “honest, safe,” fatally As White there’s no Hamilton the safe?” responded, Rocha and chest at range. shot him in the neck As pointblank Josephine heart, and stomach Hamilton shot her fatally through lung began crying, Meanwhile, feet Joe Rios away. refuge from had taken eight five door, him, Hamilton found the restroom swung open women’s restroom. Rios, face, at Rios’ and shot him feet away. three shotgun from pointed elbow, his however, saving arm in time to take the blast in the up put dead, Barbo, Hamilton baby,” told Connie “let’s go life. Rios Assuming door, Jack be neighbor, front through only spotted by fled they Connie As Abbott, come after investigate hearing shooting. who had restroom, Although into Hamilton and traded fire: retreated Abbott Barbo as he ran hit, to shoot foot managed nevertheless Hamilton in the Abbott car. Barbo was the scene. to his officers at getaway apprehended lost Kenneth Allen that “he Hamilton later that and said phoned evening and that went “things arranged his kitten” store.” wrong They cars, home meet and after which Hamilton Modesto exchange drove to the the Folsom who before inmate had been month Gary Brady, one paroled While for he Hamilton. there about five staying Brady Hamilton told days, had he “done had “killed three robbery” referring people Ray,” to defendant as “the old Man.” He also had write a letter Brady’s wife letter, him for the asking was owed money for the job. signed gave Modesto address “Country,” Brady’s as the return address. thereafter Hamilton was arrested across
Shortly after store robbing liquor *20 the street from an Brady’s apartment. seized from Hamilton police book had address list of names and who containing addresses of those Furrow, trial, i.e., defendant testified at the 1977 murder against Eugene Carrasco, Jones, Shirley Barbara Benjamin Charles Carl Meyer, Mayfield, Kenneth Doeckel and and Schletewitz. When visited Ray Bryon investigators time, mug home at about the Hamilton’s Allen’s same were handed they Allen. Kathy shot by asked about the Fran Market murders defendant
After an article appeared, Rainier, inmate, see don’t . . . and Joe me “why you testify fellow against he could some time off”? Rainier said yourself get if can When you help that, want said, on the back and wouldn’t do defendant him patted “you do have do that because you to anyway lovely daughter.” murders, Fran after the Market Kenneth was arrested Allen Shortly about A was interviewed his murders. and of the drug charges knowledge later, contacted the offer his in return police he testimony week his and choice of As custody prisons. fully explained will be protective 1244
below, he entered an to testify eventually agreement whereby promised Hamilton, and and in all Barbo “truthfully completely” proceedings against defendant in for which he exchange specified would be allowed to plead (See 1248-1249.) filed in June 1981 charges. post, pp. A was complaint defendant for the Kenneth Fran’s Market and against murders and conspiracy Allen thereafter testified at defendant’s hearing. preliminary was
Defendant held to answer. An in June 1981 charged information filed him with murdering (§ 187) (count 1), Schletewitz Bryon murdering Douglas (count 2), Scott White 3), and murdering (count Rocha Josephine conspiring Schletewitz, Furrow, Schletewitz, to murder Barbara Bryon Ray Eugene Carrasco, 182, (§ Benjamin Charles subd. Meyer, Jones and Mayfield Carl 1) (count 4). The information further eleven circumstances: alleged special 1, 2, count five under three under 3. count under count and three 1, to count it As the murder under that alleged defendant solicited 190.2, (§ (b)), (i) count subd. for the testimony purpose preventing 190.2, (§ subd. (a)(10)); (ii) (ibid.); (iii) in retaliation for testimony prior (iv) 190.2, and addition (§ murders 2 and 3 in counts charged (a)(3)) (v) subd. and having been convicted of murder in 1977 previously 190.2, (§ (a)(2)). subd. As to count defendant solicited it was alleged (§ 190.2, the murder under that (ii) count (b)) (i) subd. addition to murders 190.2, (iii) in counts charged (§ (a)(3)), 1 and subd. 190.2, been having (§ (a)(2)). convicted of previously murder in subd. As to count it was defendant under that count alleged solicited the murder 190.2, (§ (b)) (i) (ii) subd. in counts addition to charged the murders (§ 190.2, (a)(3)), and 2 subd. (iii) been convicted having previously 190.2, (§ of murder in 1977 (a)(2)). subd.
Thereafter, below, as will be terminated explained fully prosecutor after written to plea agreement Kenneth’s Kenneth had discovering Never- him. change at trial in testimony exculpate order promising *21 theless, he wanted to advised fully been stating testify truthfully, having terminated, and the fact that the his rights previous plea agreement testified for the Glenn County.2 at a trial conducted in prosecution Kenneth heard 58 witnesses over the evidence In addition to days. above, defendant took the any stand in his defense. He denied outlined own in the Fran’s Market execute murders or in the to involvement conspiracy who testified him against witnesses in his trial. previous Appeal previously granted had ordering 2The Court a a writ of mandate of venue. change cross-examination, however, that he He admitted on had told his “good to Fresno. He Hamilton to admitted go all dog,” (“Country”), writing letters received into evidence and conceded various referred to Ham- they He confirmed that ilton’s visit to Fresno. the letters to referred impending Jones, Ben Carl and Chuck admitted Mayfield, that the Meyer, phrase “taken care of” meant to kill. He that he acknowledged had access to mug Prison, in Folsom shots where he worked with Hamilton and admitted talking Hamilton in at the After the bleachers prison. being confronted with a he also admitted Allen to tape recording, ordering Kathy call the Schletew- Kitts, itzes to and to Sue to be impersonate Mary pretend the mother of in order to induce the to call off Bryon’s baby family the Kitts murder investigation.
Defendant also confirmed of the details about his many former acts and Jones, Furrow, convictions about Charles Carl which Mayfield, Eugene Doeckel and Barbara Benjamin Meyer, Shirley Carrasco had all testified. other he described how he Among things, helped transport dispose Sue Kitts’ described in detail Mary body; he great formula for executing armed robberies of various K-Mart stores “fool-proof” with his son Roger, Robinson; Ben and Allen he Meyer, described in detail his role in the Tulare he maintained that robbery; K-Mart “when a guy rat puts jacket on himself “snitch”], [i.e., becomes a them would do killing favor”; them a he de- how he Green from brought Larry scribed Oklahoma to in the participate Visalia K-Mart and how had robbery, they planned execute three or four additional robberies to make for summer money expenses; and he generally other confirmed details of his role in myriad the former acts and crimes testified above witnesses.
Defendant’s daughter-in-law, tried Kathy, him exculpate and implicate her husband as a drug-crazed, hallucinogenic mastermind of the Fran’s recalled, however, Market murder. She that Kenneth had discussed getting Prison, for witnesses with his father Folsom guns and that Connie Barbo had told her that she and Hamilton could not leave any witnesses. She admitted that she had defendant, testified for previously that she had tried murders, evidence about the and that she had falsify transmitted messages to Hamilton defendant. Mirkil testified witness Dr. Vincent about
Expert the effects of meth- never but admitted that had examined Kenneth amphetamine, Allen and much of such Kenneth drug not know how had did taken. witnesses, Frazier, John Borbon, inmate Henry
Three prison Andrew *22 Hamilton, Allen, and Brady testified could not have Thompson met Thompson admitted that yard. Folsom in the called defendant together him; “Dad” and would lie to Borbon’s protect was testimony impeached witness, Lasher, another by Dexter and a witness, rebuttal Rose. Eugene Defendant was found as after guilty charged three days deliberation. He thereafter admitted he had been previously convicted of murder.3
The evidence at the People’s presented showed seven-day trial penalty defendant masterminded the following 12, armed robberies: The August 1974, at the Safina armed robbery Jewelry $18,000 Store in Fresno in which safe; taken from the worth of was store jewelry 4, 1974, the September Inn armed at Don’s Hillside in robbery $3,600 Porterville in which was safe and hundreds of taken from the dollars in cash and credit cards were scene; 12, taken from at the 1975, patrons February residential armed Cross, and Ruth an of William Fresno robbery elderly in which a couple, $100,000 taken; valued at 18, coin collection 1975, June attempted Fresno, in at Forest Products arrest; Wickes robbery resulting defendant’s 1976, at armed robbery Skagg’s Bakersfield, the October Store in Drug (another Raoul stepson which Barbara Lopez Carrasco who was re- himself; defendant) shot accidentally 20, 1976, cruited by November market, at a Sacramento Lucky’s armed which robbery clerk Lee grocery robber Raoul McBride was shot sustained by Lopez permanent damage result; 10, 1977, his nervous as system February at the robbery K-Mart, $16,000 in taken; Tulare in which over cash was the March 1977, Visalia in which K-Mart Green held a robbery, Larry to the head gun Bernice Davis and shot employee subsequently John employee Attebery chest, in the him. permanently disabling
The evidence also showed that while in the Fresno on June County jail 27, 1981, defendant called a “death vote for inmate Glenn Bell penalty” (an accused child molester) and directed an attack on Bell which during inmates scalded Bell water, with over two of hot him gallons tied cell bars face, and beat him about the head and him with thereafter shot gun and threw zip razor blades and excrement at him while he huddled in his blanket in the comer of the cell. evidence People’s established defendant threatened repeatedly who
anyone “snitched” on the Allen would be “blown gang away” killed, and that defendant thwarted of the prosecution attempted robbery Wickes Forest Products the chief witness threatening prosecution his family. special 3These three allegations charges. circumstance had been bifurcated from the other
(§ 190.1, (b).) subd. *23 (i) first addition, conspiracy, degree convictions prior defendant’s In (ii) convictions first and his burglary prior degree first degree murder and were deadly and assault with intro- weapon robbery robbery, attempted It was also that stipulated at the phase. evidence penalty duced into Schletewitz, Jones, Carl Charles Mayfield, of Ray testimony guilt phase concerning prior and Benjamin Meyer conspiracy Furrow Eugene Kitts in murder of Sue Mary August first degree murder and the 12, 1974, on August Store Jewelry burglary at the Safina robbery 10, 1977, and February K-Mart Store on the assault of the Tulare robbery to commit and at- burglary, conspiracy robbery, a deadly weapon, 16, 1977, Visalia K-Mart Store on March at the could be robbery tempted without at the these recalling witnesses. penalty phase considered by Harris, two former girlfriend, on witnesses. His Diane put Defendant character. She that defendant had good explained testified to her helped Harris, before and after her to Jerry both that he marriage financially helped occasion, on one her to the he was hospital surgery rush good admit, however, wrote She did children and that he poetry. had husband, kill her Harris. threatened to Jerry witness, Quentin second San Plemons,
Defendant’s inmate John penalty molester, accused child instigated testified he had the assault on Bell, Glenn it, had to do with but had and that defendant nothing merely sat while occurred. rebutted by the incident This was Correctional Officer Delma testified Bell her after the immediately Graves who told incident that de- had the assault. instigated fendant majority
The vast penalty argument was devoted prosecutor’s the details of defendant’s present recounting prior convictions and crimes as factors uncharged aggravating militating favor of the death After the jury one returned a penalty. deliberating day, verdict of death. The court denied defendant’s subsequently “statutory motion for a new sentenced trial” and him to death. Phase
II. Guilt Issues Allen’s
1. Kenneth Plea Bargain Defendant claims he was denied fair trial because of an allegedly the district unlawful between plea bargain office attorney’s and his son key prosecution. Kenneth—a witness for 9, 1980, Allen was arrested Kenneth
On September drug That charges. a tape-recorded conducted interview with day, police same Kenneth *24 the Fran’s Market incident. concerning Kenneth maintained that initially the first week in during his cousin had one September stayed night Kenneth and his After continued Kenneth family. questioning, eventually admitted the visitor was not his cousin but a man named He also Billy. admitted defendant had told him to a call from who would be expect Billy, to town coming and would need a to Kenneth place insisted that stay. Billy had two with him and that spent only he had driven to nights Billy the bus in the 5. depot early morning September later,
Six arrested, after Kenneth learned that days Hamilton had been Billy he asked for another interview with the At the outset police. of the tape- recorded interview said he had Kenneth certain information about defend- that, in the ant’s Fran’s Market incident and participation in for exchange information, he wanted release on protective custody, his own recog- nizance and his choice of The district to prisons. attorney Kenneth’s agreed on the condition he to agree demands at the testify truthfully preliminary of Hamilton and Barbo. It was made clear to Kenneth that hearing no “deal” made either the being was concerning drug charges homicide possible him that he and would not be charges against given from immunity pros- ecution for he told the anything police.
With his Kenneth to the district attorney present, agreed terms attorney’s and was advised of his Miranda Kenneth rights. a explained during 17, 1980, visit with his father at Prison on Folsom defendant told August him Hamilton would be to Fresno to some coming “get done things me,” of Fran’s Market and including the murder of and robbery Ray Schletewitz. Kenneth admitted he did not take to the bus Bryon Hamilton claimed, as he had earlier but insisted he did not Hamilton depot provide with the used in the shotgun killings. later, 7, 1980, three weeks on October Kenneth initiated
Approximately a third interview with law enforcement officials. After with his consulting and been Miranda attorney by advised of his phone, having again rights, Kenneth told the visit defendant during August police prison told him Hamilton was to kill testified who going everyone against that, in his 1977 murder trial so in the event defendant’s pending appeal successful, witnesses to him on retrial. was there would be no testify against Kenneth further stated that he was to Hamilton with provide supposed did, fact, in for the Fran’s Market and Hamilton killings provide weapons and a revolver. money, shotgun with transportation, 15 and Kenneth testified at the Hamilton-Barbo October prelim- On for release on his own and recognizance his choice hearing exchange inary consistent with his third statement generally His testimony of prisons. defendant, in the Fran’s Market implicated Hamilton Barbo police killings. later, months agree-
Four Kenneth entered into plea February which in all ment under agreed testify truthfully completely Hamilton, defendant, for which against Barbo exchange proceedings be allowed he would a violation of section 32 (accessory plead *25 murder) (a) and Health and Code section subdivision (pos- Safety a substance).4 of controlled that the understanding session It was Kenneth’s recommend attorney district would sentence for each offense three-year behavior, that, concurrently to run with time off for he would be good in two of prison years. out mid-May
In Kenneth testified at defendant’s hearing. preliminary As with was Hamilton-Barbo Kenneth’s preliminary hearing, testimony consistent with the statement he to on October generally gave police 1980. 10, 1981, however, July
On sent Kenneth a letter to defendant in prison. letter, which officials, stated “Dad intercepted by prison part: doing been Ive lot of all about this shit and I’m still thinking confused I believe but will things work out for okay but me but that’s everybody I haven’t okay got to live for but do so anything anyway, you I’m going tell them real court, truth the next time we togo and that should clear but I want the you death But I dont want the penalty. chamber. I gas want my to donate can body heart, who use the Like people parts. my lung, stuff, eyeball, kidneys, and all if I can that die that I’ll feel way about okay death in Bible it no deed can a man say life, do than to greater his give so another may truth, live so I after clear with the you and give my organs who need people them one of will you live and God maybe might have grace on me for what I’m doing my life .... [11] I would do anything chance just to make our work marriage so I could just then grow up dad like a real should do but not in the its stars for me to get that chance will the Barbo, Ray proceedings or of the State Ray be 2. Whatever time 11377a, and in 4The any guaranteed. case of Allen, agreement, Allen testify truthfully other agreement provided including instituted plead legal California: further [1] exchange People then all Kenneth proceedings . any preliminary . . . Should Kenneth violation of Penal by agrees of the State of commitments for this completely [f] Ray in pertinent People 1. The Allen plea, exchange he will hearings, grand People serves in all California Code the State part: Ray testify People for the proceedings will be at an institution where his security can of the State of section People “Kenneth Allen . . . fail to comply of California truthfully vs. shall following jury proceedings, will be 32 and Billy Ray agree where Ray Health and Safety Code section California shall and completely null and considerations to a concurrent sentence. Allen hereby agrees that he against his Hamilton and Connie Lee testimony void.” trials, his with the father, parole hearings allow Kenneth by is needed in any the People Clarence terms and all [f] will remember me as the man who them back gave this way they
so maybe me I wont let them will you forget ya. hope and that way there grandfather hear, think of me from you they may see everything they least want just Dad we both know these people time to time I sure so. hope from one, may will have that way they after I tell them the truth they an Allen so I so.” sure you hope lighten up 22, 1981, Jones and Investigator District Attorney Jerry July Deputy
On He admitted it writing with the letter. confronted Kenneth William Martin had been un- hearing at defendant’s preliminary his testimony and stated he told Martin and Jones in a number of respects. Specifically, truthful Kenneth execute but to help to Fresno not to anyone, had come Hamilton Hamilton had discussed claimed that he and He some guns. “fence” Thereafter Jones told mentioned or planned. was ever killing but no robbery had violated plea agreement Kenneth that in opinion, Kenneth *26 read Miranda Kenneth was then his terminated. was therefore the agreement ceased. and, with his attorney, questioning he asked to speak when rights Market the Fran’s killings. with charged subsequently was Kenneth Kenneth to his told later, arraignment, while being transported week A Hamilton, Barbo hearings in testimony preliminary that his Martin truthful, to the same testify that he intended was in fact defendant and 10 letter to his written in the future, July he had that what in the and story not true. was father with Martin. With a meeting requested Kenneth’s attorney late August
In Kenneth his Miranda rights, advised of been having and attorney present, his wife, his from because pressure 10 letter he wrote July explained defendant. Kenneth told with close relationship who had a very Kathy, letter, him wife resumed giving his for writing that in exchange Martin visits,” to receive some drugs he was able favors “contact during sexual him as a result for had improved and generally conditions jail, while told at the preliminary he story He Martin the letter. assured writing Nevertheless, maintained office attorney’s the district the truth. was hearings terminated. Kenneth was with agreement the plea Kenneth trial, to determine whether was held a hearing defendant’s Before and the from both prosecution In to questions testify. response would it was he knew the district court, attorney’s Kenneth stated repeatedly and that he would receive nothing no agreement there was plea position case, he would waive his that by testifying and his defendant’s testimony Nevertheless, stated, Kenneth he want- self-incrimination. against privilege trial. defendant’s honestly ed to truthfully testify for the His testimony regarding testified at trial prosecution. Kenneth was with in the Fran’s Market consistent killings involvement defendant’s at defendant’s and at the hearing he had preliminary the testimony given testified at length of Hamilton and Barbo. Kenneth also hearing preliminary statements to the his agreement three police, his concerning tape-recorded for release hearing exchange at the Hamilton-Barbo preliminary to testify his choice of and his prisons, plea agreement on his own recognizance he wrote the 10 letter at office. He testified July the district attorney’s to confuse law enforcement officials and to in an attempt his wife’s request He he believed his was testimony his own testimony. explained discredit case his father and that dis- against indispensable prosecution’s a murder con- might his own testimony help escape crediting that he wrote the 10 letter Kenneth further testified July believing viction. and that as as he long it would have no effect legal plea agreement trial, at defendant’s agreement testified truthfully willingly plea would be binding. cross-examination, Kenneth both direct and made clear he understood
On both the district office it was the and the attorney’s position attorney Nevertheless, then agreement office that no existed. Kenneth plea general’s effect, he believed the was still in February plea agreement testified trial he at defendant’s trying with the by testifying comply however, denied, He that he was his trial fabricating agreement. testimony *27 in an to induce the district office to honor attempt attorney’s the agreement. Defense counsel asked Kenneth whether he felt the district office attorney’s have to if would abide Kenneth by plea agreement testified at trial as he had testified at defendant’s to which Kenneth an- preliminary hearing, swered, “Yes.”
Defendant Kenneth’s argues agreement was conditioned on plea his trial to the statement testimony conforming gave on October police 7, Because this under a 1980. Kenneth to placed strong compulsion testify statement, in conformance with his October 7 defendant argues, plea and his son’s agreement denied him a fair highly incriminating testimony trial.
‘‘ trial defendant is denied fair if the case prosecution’s depends [A] and the substantially upon testimony witness is accomplice accomplice court, either or the under a placed, by prosecution strong compulsion (1974) to in a fashion.” v. Medina 41 testify particular (People Cal.App.3d 438, 133].) Thus, 455 when the is Cal.Rptr. accomplice granted [116 that to the condition his subject testimony conform immunity substantially (id., 450), to to an earlier statement or that police p. his given testimony (1951) v. result in the defendant’s conviction Green 102 (People Cal.App.2d 1252 867]), the P.2d is “tainted
831,837-839 accomplice’s testimony beyond [228 (1921) 369) 30 B.C.R. (Rex v. Robinson and its admission redemption” hand, On the other a fair trial.5 there although the defendant denies inherent in or any of compulsion plea agreement grant degree certain is a an agreement clear that that the witness requiring only it is immunity, Fields, 329, is valid. v. (People 35 Cal.3d truthfully supra, fully testify 245, Cal.2d 556].) P.2d v. 361; Lyons People asserts the record discloses Kenneth’s tes Defendant repeatedly 7, tied to his statement of He pretrial October 1980. immutably timony the district office offered Kenneth attorney’s that because to argue appears statement, his October 7 it was made only implicitly bargain a plea after at trial was to be the same as his testimony expected to him clear This, on October 7. is indistin argues, to the police statement which, Medina, supra, v. from People Cal.App.3d guishable was denied a fair trial because witnesses the defendant two key held court to a agreement requiring plea they “materially testified pursuant had their from the statements change” testimony tape-recorded substantially to On the we believe this case earlier given police. contrary, had they Fields, 35 Cal.3d in which we People supra, more similar much agreement. plea upheld Fields, Gail, sister, entered defendant’s into a under plea agreement
In to the truth” “as of certain events in testify she agreed exchange which an to murder. In being accessory of guilty response questions her plea counsel, stated she agreed Gail accord with her last testify defense but in to the district response attorney’s police, questions, statement to tell the truth. only that she had After that Gail’s agreed noting stated she the terms of the concerning plea agreement were not necessarily statements inconsistent,6 we held these statements were insufficient to demonstrate her to that the conformance with her plea bargain required testify either *28 to or that she so understood the statement “We police agreement. earlier issue, directly addressed the it 5Although principles we have never seems clear these are testimony is accomplice pursuant plea agreement when the obtained to a applicable equally 329, People (See, (1983) v. Fields immunity. e.g., grant a 35 Cal.3d 360- than rather 102, 803, 680]; (1976) People v. Manson Cal.App.3d P.2d 61 134- Cal.Rptr. 673 [197 361 265].) Cal.Rptr. 135 truth, observed, by gave police agreeing statement she the was the then “if the last we 6As Moreover, agreed testify in accord with that truthfully has in fact to statement. she testify to inconsistent, testimony inconsistency not from her her as arises were to view if we even words, dispute leading questions put by as counsel both from her failure to but own reasons, 360-361.) (Id., insignificant we find that Kenneth For similar it pp. at sides.” district by defense counsel whether he believed the when asked in the affirmative answered way he agreement if he testified at trial the same have to honor the would attorney’s office hearing. preliminary defendant’s at testified had under some Fields’ is compulsion a witness in Gail position recognize or the prosecution. with statements given police in accord testify to last believed that Gail’s obviously in the case The district attorney present account, from it he and if she deviated materially a truthful statement was and could be had breached bargain, take the that she might position But this element of to murder. despite as principal prosecuted hold, clear, that an which agreement it is and the cases so compulsion, valid, and and indeed truthfully that the witness only testify fully requires to the witness from would seem necessary prevent such requirement of due as We believe sabotaging bargain. requirements process, Medina, in thus the witness to are met if agreement permits explained claim that he breached at trial and to to freely any testify respond was a full and truthful that the by showing testimony gave agreement (Id., omitted.) citation account.” p.
The between Kenneth and the Fresno agreement District plea County Fields, office, like the was conditioned Attorney’s plea bargain only truthful in all de testimony against Kenneth’s complete proceedings he, Fields, fendant, Hamilton and Barbo. The fact that like Gail have may some to in accord with his earlier statement compulsion felt testify not, itself, does render the invalid. There is agreement nothing police record to Kenneth was ever told or led to believe he suggest would benefit of the if his conformed with bargain only testimony receive plea Furthermore, contention, 7 statement.7 to defendant’s October contrary his was “under a in a placed testify strong compulsion particular Kenneth merely because he was offered the agreement only fashion” plea after statement. officials law enforcement cannot be Surely, October expected agreements individuals who have made no only offer those plea prior no the events in views Such expressed concerning question. statements have would all practical plea agreements— a rule effect of prohibiting neither required by (People “a result reason nor compelled precedent.” 531].) Meza Cal.App.3d Cal.Rptr. 994 [172 to, articulate, alludes but does two other arguments Defendant not clearly of his contention that the coercive. plea agreement unlawfully in support first concerns the itself. Under the argument terms of the agreement in all Kenneth future completely agreed testify truthfully agreement, defendant, both the against including preliminary hearing proceedings Thus, at the trial. once Kenneth testified against preliminary *29 7Indeed, appears only it himself was the one who ever told Kenneth that he escape charge. to Defendant testified by original story stand his in order murder must him, Kenneth, he changing testimony exculpate his to told suggested when Kenneth fool; only story originally. same he told That is the chance “not to be a damn stick with the getting had he out.” [of]
1254 be he to testify it could was under a argued strong compulsion hearing, trial; if he told a trial he would at different at defendant’s story way same untruthful of the two have in one given proceedings necessarily testimony office. could be terminated the district agreement by attorney’s the plea and not Kenneth it could be did argued permit plea agreement respect, In this he breached the at trial and to claim that freely any respond testify “to a full and truthful that the he showing gave by testimony agreement Fields, 361.) v. at (People supra, 35 Cal.3d p; account.” view, is it is unper- there to this superficial ultimately Although appeal truthfully that Kenneth agreement only testify The required suasive. to testify is he was free and it clear that under the agreement, completely, Kenneth never- at defendant’s hearing. Assuming preliminary manner any him to on any in his preliminary hearing testimony, pressure lied theless in giving trial arose from his own conduct lie at defendant’s repeat of the district conduct any from the or testimony—not agreement perjured that an otherwise Neither nor logic precedent suggests office. attorney’s becomes testimony suddenly conditioned on truthful only agreement proper committing perjury.8 breaches the by when the witness agreement improper repudiation alluded to is that the district attorney’s argument second created somehow to Kenneth’s 10 letter July in response agreement his earlier in conformance on Kenneth testify compulsion undue an however, no message sent The government’s repudiation, statements. Even in the exist. that did already created no compulsion Kenneth known that if must have Kenneth government’s repudiation, of the absence defendant, exculpate at trial testimony completely his changed had been the agreement take the office might position attorney’s district be that Kenneth could fully prosecuted.9 violated bargains holding. such a Plea would strong policy rejecting reasons also are 8There little, agreements could be conditioned law officials if the any, value to enforcement if be agreement an would leave witness testimony single proceeding. in a Such truthful only subsequent proceedings. testimony at bargain by impeaching own “sabotage” the free Meza, Fields, People supra, In 9See, supra, page at 361. People v. 35 Cal.3d e.g., 988, providing on the witness bargain court held that a conditioned Cal.App.3d not alone constitute such prosecution does an beneficial valuable to the that is testimony Medina, condemned in compulsion the kind of place the witness under as to inducement Green, Cal.App.2d very because “the supra, Cal.App.3d supra, something prosecution of assistance to the contemplates that agreement described nature informant, purpose be its so far as the else what would former forthcoming from the bewill view, expectation ... in our is not improper, [the that] What is [H] concerned. case, but that People’s testimony testimony . . . will favorable be informant’s acceptable only produces if it or rendered predetermined to a formulation confined be must otherwise, result, no evidence of the If it were sort say, that is to a conviction. given by compelled reason nor required neither a result produced, here could ever be obtained (116 994.) Cal.App.3d p. precedent.” *30 conduct, that, office The fact of Kenneth’s the district attorney’s because Kenneth’s does render the testimony, expressed position before Moreover, coercive. at the time of agreement or its repudiation unlawfully had at defendant’s the Kenneth testified repudiation, already preliminary in his and therefore knew hearing significant change testimony any trial violation because it would nec- would constitute a of the agreement mean on one the two occasions was untruthful. testimony that his of essarily As we have not make the agreement this alone does already explained, plea if, unlawful. We note that the situation be different after intercepting might letter, the the attorney the district had threatened to repudiate agreement if trial, Kenneth if the district testimony his at defendant’s changed attorney had it if the but offered reinstate repudiated agreement immediately Here, however, Kenneth would his facts. stand version of the by original the district repudiated office the and made attorney’s immediately agreement concerned, it clear that as far as it was no no matter agreement, there circumstances, what Kenneth testified to did or in the future. Under these the district cannot be viewed as a coercive attorney’s repudiation reasonably threat. reasons,
For the we the of the foregoing conclude that neither timing plea terms, nor nor its its agreement, by government placed repudiation Kenneth under such a strong in a fashion compulsion testify particular as to a fair deny defendant trial.10
2. Victims Photographs of
Over defendant’s admitted objection, into evidence the trial court color of the nine photographs murder of the were victims. Six photographs at the scene of the crime taken in which the location depict position found; of the victims was each most the victims in a of these show lying of blood. The other three were taken pool apparently photographs office coroner’s before of autopsies were Two these latter performed. are of Josephine torso, three photographs Rocha’s naked upper showing to her face, detail wound shotgun left side. Rocha’s bloody open is visible in both eyes, photographs. The third is a of photograph closeup hole large Doug left White’s neck blast. by shotgun
‘“The admission of victims lies photographs within primarily judge the discretion the trial who determines whether their probative course, plea agreement 10Of existence and the surrounding circumstances to the agreement highly and, are relevant issue of Kenneth’s testifying, motivation for therefore, credibility. We to the note that surrounding issue of the facts plea agreement credibility their fully presented relevance were to Kenneth’s through both testimony counsel in closing arguments. their witnesses *31 Fields, effect.’” v. supra, (People their prejudicial
value is outweighed 142, (1979) 171 372, v. Frierson 25 Cal.3d People at p. quoting 35 Cal.3d Richardson, 281, 587], J.) of opn. P.2d “[A] 599 Cal.Rptr. [158 admissible under exclude otherwise photographs court’s refusal to trial not be disturbed on unless the 352 will appeal section Code] [Evidence (See value. People the outweighs photos’ probative effect clearly prejudicial 657, 199, 91]; 211 595 P.2d (1979) Cal.Rptr. 24 Pierce Cal.3d [155 v. 349, 138, 503 P.2d (1972) 363 Cal.Rptr. 8 Cal.3d v. Murphy [105 People 553, 576-577 (1982) 30 Cal.3d 594].)” Cal.Rptr. v. Ramos [180 (People 266, 908].) P.2d 639 “il the trial court stated that they
In admitting photographs, of the autopsy physician, testimony and are supportive lustrate victim], and the testimony lone surviving of Mr. Rios testimony [the done . . . and which these were killings supportive to the manner in as others this was not a this was not robbery, of the theory prosecution of the It was was a crime committed for specific purposes. crime. This isolated an “generally the court noted the Although photographs depict an execution.” circumstances,” and . . . it concluded amount of gore unpleasant a certain effect that any might relevance” outweighed prejudicial “substantial their noted the nine In so the court photographs from admission. holding, result when the court had overly gruesome compared photographs were of the same cases or when to other compared photographs in other seen offered been marked as exhibits but not into evidence by that had victims prosecution. were to corroborate and illustrate relevant photographs clearly The nine Nelson, of the Dr. the nature autopsy surgeon, concerning testimony (1972) 349, (see, v. 8 Cal. Murphy of the wounds 3d extent e.g., People 138, 594]; (1970) v. Terry 503 P.2d 2 Cal.3d People Cal.Rptr. 365 [105 409, 362, 961]; (1969) v. 1 People Brawley 466 P.2d Cal.Rptr. 403 [85 161, 361]) 461 P.2d and to corroborate the Cal.Rptr. Cal.3d [82 the location and manner Joe Rios and others concerning testimony Ramos, 577; 30 Cal.3d at victims were shot. v. (People supra, p. which addition, 764].) P.2d In v. 53 Cal.2d Atchley People the location of the bodies depicted nature of the wounds and with the when considered in conjunction explanatory testimony photographs, Rios, Nelson and prosecution’s do lend some support theory Dr. in an “execution-style the victims were shot at close fashion.” range, Ramos, 576.) at Defendant p. 30 Cal.3d (See People argues, supra, relevant, however, were that even evi photographic if the photographs to establish unnecessary was dence cumulative and therefore dis any issue. puted nature, extent and
Dr. Nelson testified in detail concerning great victim, wound, and the location of each the cause of death of each probable of the the moment the wounds were assailant and position shotgun inflicted. The twice and an assistant used the bailiff prosecutor prosecutor models Dr. was asked as illustrate Dr. Nelson’s Nelson testimony. help *32 no offered no evidence to on cross-examination and defendant questions his challenge testimony.
Rios testified Hamilton and to the of events from the time Barbo sequence entered Fran’s Market until the time left. He that the victims explained they floor, were all told to lie down on the White was shot from three feet floor, while in still on the and that Rocha was shot the away apparently same manner. Rios used a to indicate the relative diagram positions Hamilton, Barbo, victims the and himself. evidence be admitted even if
Although photographic
may properly
364-365;
cumulative
v.
(People
8 Cal.3d at
largely
Murphy, supra,
pp.
403;
(1963)
v.
2 Cal.3d at
v.
People
Terry, supra,
Harrison
p.
People
59
622,
841,
665];
(1960)
Cal.2d
627
381 P.2d
v.
Cal.Rptr.
People Love
[30
843,
665,
705];
53 Cal.2d
853
350
but cf.
Cal.Rptr.
P.2d
v.
People Smith
[3
(1973)
698]), the
1258 cases, these victim’s some do not show the photographs photographs bodies in a condition v. (1955) badly decomposed (People Cavanaugh 53]) Cal.2d 252 P.2d or after had been they grossly disfigured during [282 v. Redston autopsy. (Compare People Cal.App.2d 490 Burns, 524, 541-542, P.2d v. People supra, Cal.App.2d 880] 168.) People Atchley, 53 Cal.2d at We note also that in supra, p. admitting the trial court indicated it had reviewed photographs, many photographs that, those, other many cases and as well as to other comparison Fran’s Market offered photographs into evidence slayings prosecution, the nine to which defendant are not es- photographs objects pecially gory.13
Although were of photographs limited value and could probative excluded, have been properly it is not clear the trial court abused its discretion *33 event, in them into admitting evidence. In error was any any harmless. plainly There was overwhelming evidence to the support prosecution’s version of what at Fran’s transpired Market that and the evening evidence linking substantial, defendant the was slayings if not certainly overwhelming. Moreover, brief, as the in People argue their the reply nature inflammatory of the photographs in relatively slight with the heinous comparison nature of the crime to the the presented of jury through testimony witnesses. therefore We conclude it is not the would have reasonably probable jury a different result reached had the been excluded. photographs (People (1956) 46 243].) Watson Cal.2d P.2d Trial New Motion 3. because,
Defendant claims, contends he is trial entitled to a new court failed to the rule on his motion for new trial before pronouncing (§ 1202.)14 judgment. 22, 1982,
On November was held to consider hearing presentencing (§ 190.4, for of verdict statutory modification subd. report, application course, question prejudice ultimately 13Of what depends on this was shown— what the trial prosecution on court has seen in other cases or what the in this case could have, cases, however, but did not offer judge’s into evidence. The trial in other experience to his ability relevant to assess how a jury likely respond photographs is of this addition, arguing admitted, In in photographs to the trial court that the nine nature. should be but, prosecution rather, stated the photographs were not selected for their shock value selected Dr. Nelson to help testimony. were illustrate his The fact that there were other gruesome photographs that prosecution offer into evidence more did not lends credence prosecutor’s were, comment and to the court’s determination the photographs fact, helpful to illustrate Dr. testimony. Nelson’s provides: 14Thatsection “If the court shall refuse to hear a defendant’s motion for a new when neglect or made shall trial pronouncing judgment determine such motion before making of an order granting probation, then defendant shall be entitled to a new trial.” trial, well as for the (e)) new as pronouncement and defendant’s motion for had submitted a memorandum of sentence. Before the hearing, trial, new based on his motion for and authorities points support his son and the government.15 unlawful between allegedly plea agreement “[Tjhere has been filed At the of the the court stated: beginning hearing authorities in of a motion this case a memorandum of support points which, course, new trial new trial. Now there is a motion statutory for will would have consider. In event I have and any the court to take up those and the made both for arguments authorities points consider will, however, under the motion. I if counsel desires statutory in opposition (Italics time to voice a further at this motion.” your you opportunity give then added.) Defense counsel and the their presented arguments prosecutor of the Kenneth Allen and its concerning legality agreement plea the fairness of At the defendant’s trial. conclusion of their effect argu- ment, trial court ... I stated: “Gentlemen will reserve on the ruling matter, I will consider these comments that I will ruling incidental added.) statutory (Italics on the application.” make trial court went it felt why on to defendant’s lacked merit.16 explain arguments the court once said it Following explanation, again would consider remarks counsel’s to its “on the ruling “incidentally” statutory application new trial and for a modification of verdict under section 190.4.” The court *34 defendant, reviewed then each count independently against finding ver- each to be dict on abundant and “supported by convincing evidence” and “consistent, to, in accord with and not contrary the law of the State of The court found California.” each circumstance “to be special true beyond and, doubt and to a a reasonable moral certainty” a following detailed addition, argued special 15In that the circumstance findings must be reversed jury, the court failed to instruct the that sponte, finding because sua a of special circumstances be testimony based on uncorroborated of an accomplice. could a substantial difference bargaining 16“I see between for the testimony of a witness and mean, you testify way,’ I ‘I want by specific that in the which probably our law says is witness, bargaining testimony and for the of a improper truthful testimony whatever that state, I think that is the may be. status of the law in this that one proscribed rightly is and suborning you is almost type perjury, testify it a if previously you testify because better so However, way again you bargained because that is what for. bargain your if it is a testimony substantially Then, cooperation, and that is different. if truthful there is an error discrepancy testimony or difference in the measure inconsistency isn’t prior is, course, testimony but the measure is it in this case. truthful with the number [0]f counsel, by and with all the alluded to circumstances the court felt inconsistencies that the testimony But, suspect, of Kenneth Allen viewed and itself of course highly suspect. alone is, course, presented jury not the manner that the evidence is to the in their they testimony At that time deliberation. have the entire before them as far as the court has it, it, it before. The has the court has before . . . the had before and other evidence corroborating in this case primarily through . . . which evidence . . . [consists . . . of] overwhelming letters and supportive and evidence] of the [defendant’s] statement!.] [This testimony truthful of Kenneth Allen.” evidence, concluded that “this is review of the relevant considerations or, one of the most serious cases ever other presented possibly, any that, facts, court in California” under these no modification was war- ranted. The court therefore denied the under section statutory application 190.4, (e). subdivision denied the the court Having statutory application, asked whether there was cause sentence of “any legal why judgment court should not now be Both defense counsel and the pronounced.” “No,” answered and defendant was then sentenced to death. prosecutor ruled on his motion for new Defendant now contends the trial court never and, therefore, trial under section 1202. It is trial he is entitled to new for new trial. It is the court never denied defendant’s motion expressly true record, however, court treated the clear from the that the statutory abundantly motion for new trial es- under section 190.4 and defendant’s application motion,17 as a and that in denying statutory application, sentially single trial as intended to motion for a new well. The the court defendant’s deny court to the as motion statutory “statutory referred repeatedly application consider defendant’s for new trial” and stated it would points repeatedly motion,” and “in- and authorities and oral “under the statutory argument it would have Although cidental on the ruling” statutory application. ruled on the two motions been for the court to have expressly preferable the court’s under the circumstances of this case ruling individually, on defendant’s motion for was tantamount to a ruling statutory application Thus, determine” defendant’s new trial. the trial court did not “neglect motion, a new trial under section 1202.18 and he is not entitled to 17Indeed, points referring to defendant’s memorandum authorities point, one trial, new court stated: “I believe has support [defense counsel] of the motion for matter, the court in points . . . and and authorities to assist connection filed a motion in this case.” statutory findings of the verdict and in this with the review motion constitutes a failure to expressly deny failure to defendant’s 18Evenif the court’s *35 1202, In is not entitled to a new trial. the motion under section defendant “determine” (1981) the court held that not Cal.App.3d Cal.Rptr. 756 People 49] v. Teddie 120 [175 1202, failure to rule on a mandatory language of a trial court’s withstanding the section (Id., prejudice. can show at only if the defendant new trial is reversible error motion for Teddie, trial on 764.) timely motion for new the mistaken trial court had dismissed a p. In the therefore, and, the the merits of motion. The trial had never ruled on untimely belief it was record, however, deny the merits it would that were it to rule on court had indicated on that, event, any in the motion remarks and the fact Based on the trial court’s the motion. merit, prejudice was no defendant and of concluded there legal Appeal the Court had no no reversible error. therefore statutory application of the the trial court’s denial already even if explained, As we have meaning within the for new trial defendant’s motion a determination of did not constitute 1202, denying statutory application the court that in from the record section it is clear of Teddie, Thus, here, that, it is apparent as in well. deny motion as intended to defendant’s trial, for new it would have denied the motion on defendant’s separately had the court ruled (ante, 16), concerning merits of the motion fn. to counsel motion. The court’s remarks granted would have the motion” court] cards that suggest [the “it was not in the further Therefore, 764). Teddie, if we were to even conclude p.at supra, Cal.App.3d (People v. 4. Restraint Witness of Defense above,
As Prison inmate John Folsom Frazier was called explained a as a witness for the defense. After outside the of the hearing presence to determine whether Frazier should be restrained while jury testifying, counsel, over the strenous of defense objection Frazier was restrained during wide, his a testimony by one-half inch nylon strap, approximately placed ankles around his and secured to the chair. He legs his was seated in the chair witness and the restraints were before the applied jury brought courtroom; into the court a following his called recess so that testimony could be removed of the restraints out Defendant jury’s presence. claims erred the court in be ordering Frazier restrained during his testimony. defendant cannot be subjected restraints of physical any
“[A] kind in the while courtroom in the unless there is a jury’s presence, showing need for such manifest restraints.” Duran (People Cal.3d 282, 1322, 618, 1], 545 P.2d Cal.Rptr. 290-291 90 A.L.R.3d fn. and omitted.) record, citations When this “manifest need” on the appears court is vested with discretion to order the restraint most physical suitable (Id., for a defendant under the particular 291.) circumstances. at Never p. theless, in imposition restraints the absence of physical “[t]he a record a violence or threat showing of violence or other nonconforming conduct (Ibid.) will be deemed constitute an abuse of discretion.” These rules to defense witnesses as (Id., well as defendants. apply 4.)19 fn. p. testified, At the held hearing before Frazier the prosecution pre sented numerous documents to its claim that restraints support were nec The first of these documents is a essary. of the report California 14-page Prison Board of Terms with connection prepared parole consideration It details bizarre circumstances hearing. the five murders surrounding technically comply the trial court failed to with Code Penal section the error was harmless. (cid:127) limiting physical 19The reasons for the use of restraints were outlined in Duran: “We shackling it is believe that manifest of a prejudice criminal defendant will him crime, jurors. of the charged any minds When defendant is particularly if he crime, of a appearance is accused violent before shackles is likely to lead jurors to infer that a violent person disposed he is to commit the type alleged. crimes of physical The removal of restraints is ‘every also desirable to assure that . . . brought appearance, the court with the dignity, self-respect before free of a and innocent *36 Finally, Supreme man.’ the States acknowledged physical United Court has that restraints minds, as a only prejudice should be used last resort not because of the jurors’ created in the something ‘the use is technique but also because of itself of an to the very affront dignity judicial (Id., proceedings judge seeking and of that the uphold.’” decorum p. addition, omitted.) we citations In noted in Duran that limitations on the use physical of were supported by further the “effect such restraints restraints have a upon defendant’s (Ibid.) take the stand.” decision to of a number summarizes convicted,20 findings the and for which Frazier was evaluation had been recent psychiatric evaluations. The most of psychiatric examining psychiatrist time the at which months eight previously, conducted antisocial disorder a personality Frazier as having “paranoid diagnosed would be manifestation,” guarded and noted that “the prognosis behavior In an earlier at this time.” community in the free his regarding adjustment evaluation, examining psychiatrist reported the conducted in March behavior”; with antisocial paranoid type a of diagnosis “schizophrenia, and unpredictable”; “must be considered noted that Frazier’s behavior the behavioral prognosis setting, “in the outside community observed that he would constitute that and it seems rather obvious extremely poor appears setting.” in an uncontrolled risk high an exceedingly include report listing relied on the documents by prosecution The other between correspondences violations while prison; Frazier’s disciplinary violations; a number of the disciplinary officials regarding and prison Frazier to Frazier officials explaining why memoranda from prison and a series arts sent to receive various martial publications allowed to not be he would him it and related correspondences, report From disciplinary in prison. The violations over years. committed disciplinary Frazier appears IOV2 considered the most violation, the one officials and apparently recent most face serious, guard’s allegedly threatening in a prison spitting involved Frazier denied the threats making “hit a cop.” guard to “get” after the hit and on him. guard spit only at the guard he spit and maintained documents, recounted a recent phone prosecutor In addition to these who was in- apparently Dr. Fort—a psychiatrist conversation he had with Dr. Fort told the prosecutor murder volved Frazier’s prosecution. earlier, Frazier was a three “par- when Frazier years he had last examined in Dr. Fort’s According prosecutor, anoid schizophrenic, psychotic.” resentful authority figures, very Frazier was opinion extremely dangerous, if in court an challenged handle” would off the “fly quite probably therefore, some form of restraint recommended Dr. Fort authority figure; be used on Frazier. Ohta, Ohta, surgeon; Virginia eye killing prominent Victor 20Frazier was convicted of wife; children; victims secretary. All five were found couple’s two and Dr. Ohta’s killing head. After the five swimming having shot in the family pool, each been dead in the family of the victims, on the windshield on fire and left a note Frazier set the Ohta’s home brought to begun you by as Today War III has read: “Halloween 1970. World car company who misuses anyone and/or day Free Universe. From this forward of the
people my of death. I comrades penalty destroys the same will suffer environment (Signed) Knight mankind will. must die or until death or freedom. Materialism fight will Pentocols; Wands; Knight of Swords.” Knight of Knight Cups; *37 Based on the the court information ordered prosecution, provided that Frazier be The court restrained stated that “if we during testimony. stable, stable, were who I felt was with who I wouldn’t dealing person stated, however, consider for a The court shackling moment.” it believed who, Frazier was a individual unbalanced” as a “dangerously paranoid well become under the schizophrenic, might “agitated” stress cross- examination. The Frazier had five court observed committed murders under bizarre circumstances and concern Frazier’s over expressed “ex- apparent in also martial arts. The court noted the sheriff’s had pertise” office in- dicated, General, through the it believed Frazier was Attorney very restrained, In Frazier the court stated dangerous. it was concerned ordering in for the courtroom but also only those about the effect safety to a a violent outburst have on defendant’s fair trial. might right Duran, when the court’s determination is made As we stated in in established in the court’s accordance the guidelines opinion on review on decision “cannot be challenged except showing successfully 293, (16 12.) of a abuse of discretion.” Cal.3d fn. p. manifest need here determine the for special hearing trial court conducted a counsel, restraints, of both arguments considered the carefully explained Furthermore, for restraints. ordering some detail on the record its reasons around, and were restraints used were obtrusive21 minimally placed from, outside the removed Frazier’s ankles jury’s presence.
The Courts of have read Duran as that “it is Appeal generally holding times, the defendant’s conduct in now or at other custody, or his expressed intention to or conduct escape engage nonconforming trial during that should be considered in whether there is a determining ‘manifest need’ (1978) shackles.” v. (People Jacla Cal.App.3d 884 [144 23], omitted; citations see also Cal.Rptr. People Valenzuela 469], 192-193 Cal.App.3d Cal.Rptr. cases cited therein.) With the of the exception report—not disciplinary expressly relied on by the trial court—none of the evidence presented by prosecution relates to Frazier’s conduct or in present past courtroom, custody the evidence most of seems of limited value in predicting Frazier’s future hand, in the courtroom. conduct On the other it is questionable whether when, factors should be controlling here, these as the record shows of manifest finding court’s need is based its belief that primarily because stated; ordering 21In Frazier restrained the court restraints are very minimal . . “[T]he . is the minimal restraint security I feel this consistent with the available in the courtroom.” *38 1264 inherently unpre- is
of the witness’s conduct psychological instability, whole, a careful consideration dictable.22 the evidence as the Considering court, and of the to the evidence the trial the unobtrusiveness given by used, we no abuse discretion” restraints conclude there was “manifest of in this case. event, noted, a
In error was harmless. As recess any already any clearly not was before and after Frazier’s so the would see testimony jury taken Indeed, is on removed. there no being being the restraints him or placed (See, of the People that the saw restraints. any jurors e.g., evidence actually Valenzuela, 196; v. 80 at Zatko supra, People Cal.App.3d p. 643].)23 Cal.Rptr. Cal.App.3d contention, Furthermore, to defendant’s Frazier not a was contrary “key whose was crucial evidence to testimony “very defense witness” [defend- claims Defendant Frazier’s was “crucial” because testimony case.” ant’s] witness, of a it contravened “Joe Rainier testimony prosecution directly Rainier, . . testified that Hamilton and had Billy Ray . [who] [defendant] Rainier, however, . . . occasions.” did not he many testify met together fact, and met with defendant Hamilton times. In many had he testified that excluded him from and Hamilton most of their defendant conversations and “very on the few” occasions when three of them that talked together, for only conversation lasted a short time because Hamilton left always Furthermore, after Rainier in Frazier’s testi- shortly approached. nothing with Rainier’s conflicts Rainier’s mony testimony concerning meetings Indeed, and Hamilton. Frazier was asked defendant never and never testified Rainier, he whether had seen defendant and Hamilton together about Folsom.24 a we note Frazier was defense witness—not a defendant.
Finally, Duran, As we stated the limitation on restraints although physical applies prison testify, by People were 22Wenote that number of other inmates called both Duran, Thus, None unlike in it is and the defense. of these witnesses was restrained. clear “general policy trial to a pursuant court’s decision to Frazier was not made restrain 293), (16 was shackling p. part inmate” Cal.3d at but rather made as all witnesses (Ibid.) determination, Duran. case-by-case required by as suggestion been visible is a comment only may 23The in the record that the restraints have restrained, but Frazier was before made defense counsel. After seated Honor, in, brought apparent it to me as defense quite defense stated: “Your counsel counsel, juror especially take away, typical that a would barely walking as the [view] seat, row, back would approached . row approached [he if he . . even if he front response, trial jurors.” In court bindings respective visible to the that the would be see] minimal, concern,” very were restraints share counsel’s stated he “did not defense going looking be at Frazier’s feet. jurors were did not believe the defendant, Gary Brady together, Hamilton and testify never saw did that he 24Frazier may Brady have seen Hamilton and together Hamilton although he saw defendant what, might attribute to this any, if relevance together. is not clear however It testimony” testimony “directly any contraven[e] would way in what testimony or prosecution witness. defendants, to defense as well as “the of shac- prejudicial witnesses effect since kling defense witnesses is less ‘the shackled witness consequential (16 . . . affect innocence.’” Cal.3d directly presumption [does] *39 288, 4, at added.) fn. p. italics reasons,
For these we conclude that error any Frazier harmless.25 restraining during testimony 5. Juror Misconduct
After the its rebuttal finished the prosecution to argument jury afternoon, the late court the informed the jurors would be they sequestered for the but would not receive instructions and evening begin deliberations until the While the following day. activities the discussing jury’s evening, the whatnot, course, court said: “As far as your dinner and of that is all taken care of paid for. [11] There was a question by some who might like a wine or a or slight of small beer glass like something that. The State so, California, of Now, doesn’t properly buy liquor. if want to you have drink, to that’s to Let something up you. your conscience be your guide.” comment, on the basis of this defendant Solely now contends the jury in misconduct engaged by drinking intoxicating liquor. of alcoholic beverages consumption by jurors, whether during deliberation,
the evidence or of is to presentation during clearly be dis as well the have a reasoned, The defendant as to the couraged. People right of Because the dispassionate judgment jury. considered consumption of alcoholic one’s may ability use beverages impair perceive judge, of such threatens both fairness of the trial and by jurors intoxicants Nonetheless, some the entire older integrity judicial although process. cases held that of alcoholic beverages any consumption jury 317, (see, (1889) reversible se v. Lee Chuck 78 Cal. error e.g., People per contention, failing 25In court erred argues jury a related to instruct the sponte bearing jury’s sua that the should have no on the determination defendant’s restraints that, guilt. imposed In when visible must be Duran we held those instances restraints “[i]n jury sponte bearing restraints should no the court shall instruct sua that such have However, guilt. when the concealed from the determination of the defendant’s restraints are view, jury’s given requested by should not be unless defendant since it this instruction might prejudice invite initial attention the restraints and thus create which would otherwise 291-292, omitted.) (16 pp. be avoided.” Cal.3d fn. in the After Frazier was seated witness chair defense counsel he stated to the court believed (ante, 23). jurors Although disagreed, the restraints would be visible fn. judge the trial jury disregard rejected to instruct the the restraints. Defense counsel expressly offered offer, them, noting, you trial court’s admonish then obviously possibly “[i]f those [who] Thus, have not seen Mr. Frazier’s confinement will become aware of it.” defense counsel jury made a conscious tactical decision not to have the instructed—a with which decision expressed agreement. circumstances, its trial court Under these certainly the court most failing not err in to instruct sponte. did sua 1266 a verdict 719]), P. the rule is now well established that will fairly
332 [20 ground be set aside in the absence some some reasonable showing jurors’ alcohol affected the that the suspect consumption actually v. (See, Hasson Ford their duties. perform e.g., capacity competently 654, 1171]; 388, P.2d (1982) Motor Co. 32 Cal.3d 650 Cal.Rptr. [185 753]; (1956) People P.2d v. Crooker Cal.2d People [303 486, 493 24]; (1966) Annot. 7 A.L.R.3d Leary 105 Cal. P. 1040-1044.) no in this case that of the jurors
There is evidence absolutely any trial, alcohol at time let alone that of the any any consumed during *40 became to they so intoxicated were unable their competently perform jurors no or jurors, Defendant submits affidavits—from trial counsel court duties.26 his claim of misconduct. juror officials—to support Instead, he relies on the trial court’s comment to the that solely jury drink, want have that’s to This far something up “if to falls you.” you (See, of the kind of to establish misconduct. showing juror short necessary Manson, 102, 215.)27 supra, v. People Cal.App.3d e.g., Chuck, reliance on v. Lee 78 Cal. People Defendant’s supra, In Lee Chuck it was the deliber- undisputed began clearly misplaced. jury mid-afternoon, later, for dinner three hours ations the recessed spent at dinner which time the one hour consumed a during jurors approximately six cognac, total of of wine and half bottle of resumed deliberations quarts dinner, and the within against after reached a verdict defendant immediately the two hours. A number of affidavits submitted defendant indicated not the that had consumed alcohol but that the only jurors appearance and of conduct several of the were jurors they intoxicated when suggested they circumstances, after dinner. these resumed deliberations Under we held that “ the is clear and proof drinking where and that undisputed, it was of trial, 26Indeed, lengthy the trial throughout repeatedly the course court commented attentive, unusually jury punctual, cooperative fact that the was and serious-minded. misconduct, any evidence of attempt explain produce failure to defendant an 27In court, their questioning jurors was from about conduct because the precluded he contends end, subtly inferentially “very jurors the trial’s warned the jury to the at comments its anyone following discharge.” their be best for them not discuss the case it would that contention. merit to defendant’s is no There might asking questions be them about jurors people that a number of did tell the court remarks; case, flip they and that irresponsible be careful not to make they should that clear, however, court it they to. The made that questions if chose not respond need chose, course, they and that if there anyone the case with “[o]f free to discuss were jurors . . . .” be the one who would want know The trial I would first improprieties any were no way precluded and in defendant from jury perfectly proper were comments court’s particularly disingenuous in jurors. appears light Defendant’s contention questioning appellate nor his counsel any trial counsel made apparently neither defendant’s that fact concerning alleged jurors consumption their question to contact or whatsoever attempt beverages. alcoholic while actually done their verdict in a deliberating were jury upon capital (Id., case, a verdict of not be allowed to stand.” conviction should at p. added.)
italics Whatever continued holding Lee Chuck vitality (see, 493), e.g., supra, 105 Cal. at it People Leary, has no p. clearly this, to a case such as in which there is no application absolutely evidence consumed alcohol at the trial. any juror during time any any doubt, defendant Giving benefit of the every most possible very infer from might one the court’s comments to the at least some of did in fact have “a of wine or a small beer or jurors slight glass something night like that” dinner on the before their deliberations during began. As would not we have this alone constitute misconduct explained, juror entitling Crooker, (See to a new trial. People v. supra, 356.) Cal.2d at p. failed conclude defendant has to establish juror We misconduct or that denied a fair trial.28 Rainier Joseph 6. Cross-examination of *41 the court next contends restricted his
Defendant improperly cross- examination of witness Rainier Joseph regarding details prosecution of murder conviction. Rainier’s first degree to was
Before Rainier was called conference held testify, outside the informed the of the court that he presence jury. had prosecutor shown counsel a document Prior “Impeachable defense entitled Felony Convictions he and defense Rainier),” and that counsel had (Joseph agreed the four document convictions listed in the were the only felony felony convictions Rainier. One of the that could be used to listed felonies impeach involved child. Because first murder of a small of the degree sensitive nature of offense, the asked the court for a that defense prosecutor ruling counsel allowed Rainier on the facts not be to cross-examine specific the murder limitation, Defense such objected any conviction. counsel that if stating was a the fact that the murder victim small child became relevant during cross-examination, to ask Rainier this and he about other details planned of the offense. object conclusion 28Our is further did not to the trial supported fact that defendant and, indeed, below, comment juror though
court’s raised the even never issue of misconduct appeal his on solely claim is based on and known to him “evidence” that was available began certainly arguable before ever it is its deliberations. Under circumstances these (See, any objection might e.g., People that defendant waived he v. otherwise have had. 568, (1968) 66]; Orchard 264 Cal.App.3d Cal.Rptr. People Martinez 918].) Cal.App.2d Cal.Rptr. 912-913 [70 of the murder conviction the existence prior The court stated that although the court at that time could for purposes, relevant clearly impeachment was the conviction. relevance to the circumstances specific surrounding see no relevance, that, absent some defense showing therefore ruled The court cross-examination to establishing type felony should limit counsel his was convicted and the date and of the conviction. place which Rainier however, clear, if at defense counsel court made that any point The trial case, an of the murder were relevant to issue the details believed the matter on allow defense counsel cross-exami- explore would court nation, of relevance to showing he made some suggestion provided of the In the trial court’s ruling, the presence jury. response court outside “If I do intend to ask that stated only: questions go defense counsel it be to make an offer of ... might appropriate proof. factual background to that.” At no time even know if I’m going get during But I don’t matter or cross-examination of during subsequent conference on the Rainier, ever to the court a relevance. theory defense counsel suggest did believed the details of time indicate even that he Rainier’s he at any Nor did Rainier or that he wished on the question were relevant conviction prior the court some only point during Defense counsel told subject. if facts the conviction were believed the underlying cross-examination them. ask Rainier about relevant, to be able to he wanted that the details of first time appeal for the now contends Defendant his relevant to establish motive conviction were murder first degree Rainier’s therefore, details of the murder and, evidence regarding for testifying (f).29 subdivision While Code section under Evidence admissible Prison, received Rainier information in Folsom life sentence serving his fellow inmates looked un- because in danger, apparently life was *42 child. a small Without explaining fact that he had murdered on the favorably threatened, Rainier testified direct examination was his life reason he became so for his life was in concerned his danger, learning after in him “lock As Rainier officials to put up.” that he asked prison safety he was in in “lock meant locked his cell being placed up” explained, later or educational facilities and no with no access to yard hours day on direct examination that be- Rainier further testified visiting privileges. locked in a cell and his discontent being of fear for his safety cause General’s office and to agreed contacted the he Attorney 24 hours day, in another custody in for protective defendant exchange against testify in to receive a letter his file also Rainier testified he expected institution. statute, jury may the court or “Except provided as otherwise provides: 29Section 780 any any tendency matter that has in credibility of a witness determining the in consider testimony hearing, including at the but of his disprove or the truthfulness prove reason bias, (f) or The existence nonexistence of a following: . . . . any of the [H] limited interest, or other motive.” officials; that he had with law enforcement indicating cooperated hoped this letter for would be if he ever became or a eligible helpful parole clemency Defense counsel cross-examined Rainier at hearing. great length regarding his motivation for testifying.
Defendant now could not contends fully appreciate depth and, therefore, Rainier’s desire for of his custody depth protective defendant, motivation to without the reason testify against understanding threatened—i.e., Rainier’s life had been because he had murdered a small Thus, child. the details of the evidence murder argues, concerning were relevant and the trial erred in defense court counsel from “precluding” on cross-examination. There no to defendant’s exploring subject merit contention.
First, view, to defendant’s it is from clear contrary far that details of Rainier’s murder conviction were relevant under Evidence Code section (f). subdivision the fact that Rainier feared for his Although life and ap- believed his could be assured parently safety only by obtaining protective custody relevant to the issue of his motivation to clearly for the testify it is difficult to see how the reason prosecution, for his fear was underlying relevant. Defendant that the circumstances appears suggest surrounding Rainier’s murder conviction were relevant because tend to they demonstrate he had reason to fear for his life. But good whether Rainier’s fear was reasonable would to be objectively irrelevant to the issue of appear moti- definition, vation. one’s motivation to act By one’s depends own upon of the various risks and benefits involved. Rainier perception made it clear on direct examination that he had a sincere and concern for profound that he asked to be safety—so profound “lock placed and refused up” to leave his cell—and that it was this fear that profound motivated him to contact the General’s office and Attorney agree testify exchange The fact that Rainier’s protective custody. subjective fear was well founded or reasonable has no objectively simply reason to “tendency prove fact that is of disprove any disputed consequence determination” of Code, (Evid. Rainier’s as 210.)30 § a witness. credibility 30Defendant contends the details of Rainier’s conviction were also relevant to his desire *43 and, therefore, placed have a favorable letter in his file were relevant to his motivation crime, to testify. theory appears Defendant’s to be that because of the nature of his Rainier being knew he had little chance parole having of ever released on his sentence reduced and, therefore, Hence, help get. needed all he could theory goes, a favorable letter from the prosecution particularly important was to Rainier and his desire to obtain the letter provided strong cooperate prosecution. motivation to with the Whatever relevance there might be being to Rainier’s that he had chance of ever belief little released prison, from fact very is defense counsel into this permitted inquire subject. With the court’s express consent and objection prosecution, without from the defense counsel asked Rainier case, following question: your “Isn’t it true because of the nature of that is the
1270
Moreover, it is clear from the record patently that the court did not counsel from Rainier about the “preclude” asking details of his murder conviction. The court went to great lengths explain to defense counsel if any at time he could relevance to suggest any evidence, such the court would him to on cross- permit subject pursue and, indeed, examination.31 At the time of the court’s ruling throughout trial, it both the court and defense counsel believed evidence appears Rainier’s conviction concerning was relevant to establish an only “impeach Code, (Evid. 788.) § able” conviction. of Evidence prior felony prior felony offered for this convictions is restricted to the name or purpose type (1969) crime and the date of conviction. v. Schader 71 place (People 761, 1, 841]; (1966) Cal.2d 773 457 P.2d v. 63 Cal.Rptr. Smith People [80 779, 382, 222]; (1974) Cal.2d 790 409 P.2d v. Cal.Rptr. Terry People [48 432, Thus, 446 233].) 38 the trial court was Cal.App.3d Cal.Rptr. [113 that, correct in unless and until defense counsel could some ruling suggest relevance, other into the details of Rainier’s conviction theory inquiry would not be permitted. conclude the trial court did not
We restrict defendant’s improperly right to cross-examination. Evidence Other Crimes
7. Defendant claims error because his former associates—Charles Doeckel, Jones, Furrow, Carl Mayfield, Eugene Benjamin Meyer, Shirley and Barbara Carrasco—testified as to the details of his convictions prior (of (of Kitts), Market), Fran’s murder Sue rob subsequent burglary Mary (both convictions all of the above beries crimes uncharged involving case, your agreement with the you nature of murder that at the time that entered into office, having your attorney general’s you your isn’t it true felt that chances of sentence answered, “Yes," good?” question not too Rainier to this and defense counsel lowered were inquiry. on to line of then moved another reason, futile argument is that it would have been 31Forthis there no merit to defendant’s permit it would no proof” to make an “offer of once the court ruled for defense counsel expressly repeatedly court subject. explained, As we have cross-examination an offer was cross-examination if such permit an offer and made clear it would invited such circumstances, defense counsel to hardly have been futile for it would made. Under these proof. make an offer challenge on proof an offer of in order to ordinarily need not make that counsel We note sustaining objection question to a asked on cross-examination. ruling an court’s appeal the trial 722, 554]; 354; (1970) Code, Cal.App.3d Cal.Rptr. 729 People v. (Evid. § Coleman however, 1314, 1214.) rule, (2d 1966) apply § This does not Witkin, p. ed. Cal. Evidence one) when it is clear the trial court has (even “exploratory” is an question proposed if the (People v. Burton 55 Cal.2d 344- probable relevance question’s overlooked Coleman, 433]; People supra, Cal.App.3d pp. P.2d 729- Cal.Rptr. 345 [11 when, proof required offer of 731); general apply rule that an as even less should here, question repeatedly sees no relevance to the invites states it expressly the court theory of relevance. suggest a counsel to
1271 had, that he then and could previously boasts others), and frequent and concede the to to evidence was relevant He seems order, killed. people 77, (1984) v. Tassell (People 36 Cal.3d in dispute actually facts ultimate 1]), 567, P.2d intent and He main- namely, identity. 679 Cal.Rptr. 84 [201 tes- nevertheless, error because the witnesses’ there was tains, prejudicial fact that acts and occurred the bare crimes prior limited to was not timony or testified defendant in former against them had witnessed that they acts and testify details the trials, prior were allowed but they in them. involvement and defendant’s crimes of his role in the former crimes details acts and suggests
Defendant his commit crime—an obviously to show propensity only relevant were Code, 1101, § (Evid. (a))—and subd. there- evidence use of such improper witnesses’ limiting in not testimony accordingly. erred the court fore now, because it was not as be asserted raised below cannot claim This 353, (a).32 subdivision section v. Stuller (People Evidence Code required 158, 582, 712]; 41 Cal.Rptr. 590-599 A.L.R.3d [89 Cal.App.3d 10 (1970) 970, 976 (1972) 372].) In Cal.App.3d Cal.Rptr. [102 v. Ferrel People case, such this an event, objection facts of would been have on any meritless. that details of the argued former reasonably acts and crimes be
It cannot defendant’s establishing as the identity mastermind of relevant were not his intent in those crimes: conspiracy Only by hearing murders (and former hence testimony witnesses’ defendant’s in of the role details in put events) jury properly perspective could significance of those understand and thus defendant’s motive in testimony ordering former Nor is it apparent these facts killed.33 them have or should precluded testimony would details as court 352, Code section under Evidence or that failure to do actions defendant’s Const., (Cal. VI, 13; art. § miscarriage justice. in a People resulted so Watson, 836.)34 46 Cal.2d supra, (a)’s requirement avoid section subdivision attempt to here. reject defendant’s 32We People v. Cabrellis Cal.App.2d rule described exception to that Unlike 795], nothing suggesting prosecutor overstepped in this record Cal.Rptr. there is the other acts presented or discussed and former crimes this improperly bounds his case. recognized counsel this and decided to make the best of suggests defense record 33The great lengths impeach previous these witnesses about their He went to situation: testimony prior bias and to show their was false. an effort to demonstrate testimony in instructed the evidence of regard, properly note the court crimes we 34In this trial, believed, if be was on could not considered to those for which defendant than other crimes, disposition or that he had a to commit person was a of bad character prove purpose determining limited if such evidence only for the could be considered rather but intent, prosecutor also emphasized point identity, to show or motive. tended argument. *45 1272
8. Prosecutorial Misconduct
Defendant be must set aside claims his conviction because finally the prosecutor, at had stated defendant killed closing allegedly argument, Mafia, Eugene Mexico, Furrow in for the that he that he a hit man had was murdered line,” two in in Las and that he people “to everyone Vegas keep created a was of and mystique those him that he had among capable around committed murder. Defendant to this misconduct alleged neither objected nor did he an request this claim is admonition. appropriate Assuming prop before us erly (People v. Green 27 Cal.3d Cal.Rptr. P.2d 468]), we it record shows reject as that clearly unfounded. although of prosecutor which had discussed the above subjects—all been previously testified to former care “employees”—he defendant’s fact, fully characterized them as of but “boasts” not statements being “threats” used those repeatedly by mystique defendant to create keep for him working from talking.35 prosecutor’s argument We conclude proper fully the record. supported by ' took credit for also testified that the statement cooperated testified have existed man area of threats and fit into mystique where up me if this wasn’t people would be then very them intended to by Mr. two can contract ever crossed his mind? security guard what about his [defendant] these That is tell when he told Chuck had him murdered? Because might 35The relevant portion of threats, probably people for the Mr. relevant happens you poems Mr. talking Mayfield, why put away, against man, so they and also a threat Mayfield taken way are Mayfield with the build Mafia, in Las told Mr. Mayfield implied by these we in his 1977 before [defendant testified he see something capable about, to people. What killing will dispose of thinking? him. I believe get care of. If light prophetic, up even back in mind, that he had testified in Vegas; showed him a into the mystique among authorities testified that he had asked talking, two people.” defendant told him say/Dusting off people of murdering. ‘Yeah, the murder Bryon but before it existed on this that he [H] keep everybody toward Carl they of the body.’ Allen told Mr. else About statements to Mr. he wasn’t worried about about that was a 1977 that Allen told Ray 1977 before it connections and friends who would murder Mr. Schletewitz was murdered even people, against talked, going had Lee prosecutor’s argument clipping whether the idea of did he Allen wrote Furrow has been taken what In fact talk. That sure will on here. And that Mayfield, Bryon how he wanted to him,’ Ray he would take care very prophetic Furrow happened [K] about, for a mystique, poems tell—getting Mayfield in Allen, you for those who Also, really line. who would take Schletewitz and in mafia-type Mayfield again Allen, have demonstrated. You about, murdered in Mexico? Mr. [U] him, ladies and Ray to Mr. seemed all that relevant. Now it seems piece them Allen asked Then 1974, that, about, back to Chuck statement. the hit murdering Eugene is as follows: again inter ‘Even and Mr. is the Ray Allen told keep everybody murder Furrow? What does that tell help pay.’] Ray talking of them. care of in Mexico. For we paper. alia, gentlemen, quite apart I man, Ray before this hit if he were locked care of think it would fit into get light Furrow, for which the if he was keep Mr. ‘Even if he were locked because if ‘contract men’: ‘I am a goes Allen [I] to the statement Ray . Allen who murdered Mayfield of this hit list. But Jones, anybody Another discussion Why “What . . people him Allen who writes mystique tell them in line. You also I think [11] Leland Furrow worried about anybody did they he was a hit list, what Mr. Furrow about what in Ray Defendant made that, he up’—tell line. [1Í] did it that he say did this is might $25 Allen made from they who who you you tell he he Special
III. Circumstances Issues *46 submit, for the claims it was error for Defendant to prosecution true, instead to find six murder” circumstances jury “multiple special one, one, of a two witness” instead “killing circumstances special murder conviction” of one. circumstances instead “prior three special Multiple-murder Special 1. Circumstances 190.2,
Section subdivision (a)(3), as a circumstance defines special in which defendant has in been convicted a situation this proceeding “[t]he than one offense of murder in A more the first or second degree.” plurality P.2d (1984) in v. Harris 679 People held Cal.3d 36 Cal.Rptr. [201 433], two “alleging circumstances for a double murder special improperly risk a that the will the death jury inflates arbitrarily penalty, impose also inconsistent with the that the capital constitutional result requirement and focus the consideration sentencing procedure guide jury’s objective offender. circumstances of the offense and the individual the particularized (Jurek Texas 428 U.S. [262] pp. 273-274 L.Ed.2d Harris, 2950].)” (36 67.) Cal.3d at in S.Ct. Pursuant to our p. reasoning should cir one charging papers allege special appropriate multiple-murder (Ibid.) It follows from the individual murder counts. separate cumstance of the be five six should set that circumstances multiple-murder special aside, and one should only have been found true. Witness-killing Special Circumstances
2. 190.2,
Section (a)(10), subdivision as a circum defines special (i) the intentional of a in killing victim to testimony any stance prevent (when the was not the com proceeding killing during committed criminal mission, or witness) commission of the which he was a attempted crime to (ii) the intentional of a to a killing victim who was a witness crime “or” for that witness’s criminal The retaliation testimony any proceeding. addresses two obviously situations in which a witness- separate section will be a killing circumstance. that evidence special Nothing suggests related on both theories findings charge permits People supporting Indeed, two to find circumstances. seems separate special opposite jury reflect the drafters’ intent: a defendant who is shown probable better a violated circumstance in more than one particular special way have of no more than one of such a circumstance violation. Of special “guilty” course, evidence theories of violation would supporting alternative be event; before the we therefore jury reject any People’s properly our construction of statute forces the People promote suggestion interest societal the other both are established one over because simply course single of conduct. both theories of evidence supporting presence of violation can in order to stress be properly prosecutor emphasized by extent underlie the witness- interests that which societal killing special one circumstance We conclude only have been violated. witness-killing been found true. special circumstance should have 3. Prior-murder-conviction Circumstances Special 190.2,
Section circumstance (a)(2), defines as special subdivision *47 the situation in which of murder convicted defendant was previously “[t]he Harris, in the first or degree reasoning second Pursuant to our degree.” 36, 36 supra, Cal.3d cir two special of the three prior-murder-conviction cumstances aside, should be true. set have been found one should only
Defendant circumstance argues remaining that even this special should be finding set aside Instead of because it was not pleaded. properly alleging prior-murder-conviction to de circumstance special pursuant 190.2, fendant’s first present sub murder convictions under section degree (a)(2), division clause of of each the three introductory disputed pleading paragraphs circumstance under section erroneously alleged special 190.2, (b), subdivision which subdivision does not murder support prior omission, however, circumstance. special This technical not does invalidate the special circumstance Defendant was on notice that he finding. clearly was on trial for first murder and that his murder conviction degree prior was therefore Indeed, being as a circumstance. each of the alleged special challenged pleading concluded with the paragraphs express allegation defendant was “convicted in the Court of the State of previously Superior California, Fresno, County of first murder in violation of Penal degree 187, section Code 190.2[, section meaning within the Penal Code sub (a)(2).” event, (Italics added.) In we would conclude that division] any any defect failure to object was waived defendant’s below. pleading (§ 1012.) circumstance Accordingly, special prior-murder-conviction was properly found true. Penalty Phase Issues
IV.
1. Witherspoon Error because one
Defendant be reversed must claims his death sentence the rule prospective juror, Millar, contrary Mr. excused was allegedly 776, 88 S.Ct. Witherspoon L.Ed.2d (1968) Illinois U.S. 510 391 [20 1770], under “unmistakably it which makes exclusion is if juror proper only clear. . . capital imposition would vote automatically against [he] evidence that be at the any might regard developed without punishment 522, 785, (Id., at fn. 21 L.Ed.2d at fn. p. . .” p. . . [20 trial of the case (1980) 26 Cal.3d 21]; Cal.Rptr. v. Velasquez [162 People out, the United States 341].) Court People point Supreme As the 606 P.2d from this standard. In v. Witt Wainwright retreated has since apparently 841, 105 844], the court “clarified” L.Ed.2d S.Ct. 469 U.S. when a be for determining prospective juror may standard “proper of his or her views on That because capital punishment. excluded for cause views would the juror’s substantially impair standard is whether ‘prevent duties as a in accordance with his instructions juror of his the performance that, in note addition to with Witherspoon’s oath.’ We dispensing and his standard likewise does not ‘automatic’ decisionmaking, reference to ‘unmistakable bias be This is clarity.’ that a juror’s proved require juror bias cannot be reduced question-and- because determinations obtain results in the manner of a catechism. What which answer sessions have realized should has veniremen experience many common sense proved: asked enough be to reach where their questions point cannot simply clear’; these veniremen ‘unmistakably been made know may bias has *48 sentence, faced when with the death or will react imposing may how they articulate, or wish may to hide their true feelings. unable to Despite be record, however, will in the there be situations where printed of clarity lack with the is left definite that a impression prospective juror the trial judge to the law. For faithfully be unable reasons impartially apply would more this is deference developed infra, be must be fully why that will paid (Id., who sees and hears the at judge juror.” the trial 424-426 pp. to [83 851-853, 852-853], omitted, 105 S.Ct. at fns. pp. pp. L.Ed.2d quoting 38, 581, (1980) 589-590, 448 v. Texas U.S. 45 L.Ed.2d 100 Adams [65 2521].) S.Ct. the voir dire Juror reviewing transcript
After Millar we prospective under even that more standard stringent Witherspoon he was conclude His excused. answers to were questions conflicting demonstrate properly reluctance to the death Unlike the impose penalty. prospective a substantial excluded in “went no Velasquez—who further than improperly to juror she would ‘most vote death unless that the case likely’ against was affirm (26 443)—Mr. Cal.3d at Millar made it heinous’” p. ‘really unmistakably would a death verdict. His final he automatically oppose exchange clear court trial summarized his position: with answer, All Millar, As I understand right. your ... Mr.
“The Court: us telling are case where were you . you every given . . opposition death, or would in case without imprisonment you every of life regard facts that be considered relative to justify might punishment you case every vote for life without imprisonment would parole?
1276
“R.T. That is correct. Millar:
“The Court: Under I feel the the circumstances I challenge proper. Millar, excused, Thank will Mr. are accept we challenge. you, you candor.” your appreciate Former CALJIC Nos. 8.84.1 and 8.84.2
2. (i) next notes: Defendant was instructed jury former pursuant No. 8.84.1 on the it was consider in CALJIC factors de determining and it was not factor ‘k’” fendant’s penalty given “expanded instruction (1983) v. 34 prescribed Easley Cal.3d 858 subsequently People [196 309, 813], P.2d 671 nor was it otherwise instructed that it Cal.Rptr. might defendant; (ii) factors “sympathy” favoring consider was jury 8.84.2, to former CALJIC No. that it was to pursuant instructed impose if it death found circumstances aggravating outweighed miti sentence circumstances, and it was further instructional given clarification gating of its discretion Brown scope pursuant People as 512, 545, 440], footnote 17 P.2d Cal.Rptr. Cal.3d certiorari [220 — — another U.S. L.Ed.2d ground S.Ct. granted 2274]. the first defect in of the evidence and
Viewing light arguments we conclude the verdict need not to be reversed on penalty presented, that defect alone. the absence of an factor Despite expanded basis k instruction, the evidence in presented “sympathy” penalty witness, Harris, children, Defendant’s Diane testified was good phase: *49 her in an and that he wrote helped emergency, poetry. he Significantly, that said the should to not consider nothing suggest jury such the prosecutor evidence; on the the thesis of his was that it was contrary, argument quite evidence, the to consider such but that jury defendant’s mitigating proper was “as as .... If it’s good nothing the anything, just most evidence almost invisible evidence that have ever mitigating seen.”36 you pathetic, Brown, defect,
As to the second we in People explained supra, statute’s described in former CALJIC “weighing No. process” the that 8.84.2, the method which “the . . . determines under the by jury is relevant (40 in which is a case.” Cal.3d at penalty appropriate particular evidence added.) in was that italics Our concern Brown the unadorned stat p. in two interrelated lead the to might ways jury misapprehend instruction utory and responsibility. discretion its conclusion, reject we also claim 36Having reached defendant’s that the trial court failing jury sponte sympathy to instruct the sua that it could consider in reaching
erred decision. penalty its First, about the nature of we out that the be confused might pointed jury “ observed: word is a ‘weighing’ As we weighing metaphor process. [T]he which nature is The word description. for a process by incapable precise mental but not one which calls for certainly connotes a balancing process, ‘scale,’ mere mechanical of factors on each side of imaginary counting of them. Each is free juror or the arbitrary assignment ‘weights’ any whatever moral or value he deems each appropriate to assign sympathetic (40 consider.” at all of the various factors he is Cal.3d permitted 542.) p.
Second, we were concerned in Brown that the unadorned instruction’s “the trier of fact . . . shall a sentence of death if impose phrase, [it] that the circumstances concludes cir- aggravating outweigh mitigating (italics added), could mislead the as to the ultimate cumstances” jury ques- it was called on to answer in which tion sentence to determining impose. (i) could be understood to Although quoted phrase require juror whether “the circumstances aggravating outweigh determine mitigating without circumstances” view as to the regard juror’s personal ap- sentence, (ii) and then a sentence of death if impose aggravation propriate even if the mitigation does not believe death outweighs juror personally is circumstances, sentence under all the we concluded in appropriate Brown to, not, the statute was not intended and should be that interpreted Instead we stated: that the ‘shall’ “By fashion. directing impose if it finds that factors penalty aggravating ‘outweigh’ death mitigating, should not be understood to to vote for require any juror statute the death unless, of the upon completion ‘weighing’ decides penalty process, appropriate is the under all the penalty death circumstances. Thus the jury, factors, various under weighing simply determines relevant evi- (40 which in the penalty appropriate particular dence case.” Cal.3d at added, id., omitted; italics fn. see 13.) also fn. p. cases, we called for instructions in future
Although clarifying we stated examine each case “on would its own merits to prior whether, we determine context, the sentencer have been misled to may defendant’s prejudice of its discretion under the scope sentencing (id., about 1978 law.” *50 545, 17.) fn. p.
While to the that it quite properly jury should arguing consider factors, the character the by be of persuaded aggravating prosecutor the suggested Indeed, once was a mechanical function. weighing process told the to effectively the jury just attempted give he opposite, guidelines be first applied could each individual to value and then by juror weigh criminal activities, factors. In violent the defendant’s respective discussing even stated do I mean on the surface you really weigh, it’s “[H]ow But, how do you that these are obvious circumstances. very aggravating the the circumstances of the really weigh amount caused by aggravation on which these violent murders found prior the you guilty Well, what is How do that? you really again, crimes? weigh [defendant’s] [1Í] added.) (Italics We have to back to that.” responsibility? keep coming Thereafter, the the the jury “quan- discussed with prosecutor problem clear that the the seriousness of defendant’s crime. It is prosecutor tifying” the or moral standpoint (People was crime from a again discussing qualitative (1982) 30 640 P.2d Cal.Rptr. v. Haskett Cal.3d 863-864 [180 776]): “How do we measure the human suffering, how do we quantify, about? Ten we are now talking seriousness these crimes severity, three murders in criminal about the transactions. We are talking different murders, case, executions, in this executions I shouldn’t call them this that? How case, to How do we commit the executions. conspiracy quantify circum- aggravating measure that when we are to these trying weigh we do it, is to just, considering One to do ladies and way gentlemen, stances? [1] crime, is crimes and the case and the prior these executions in our both at it the victims.”37 Turning to look of some of through perspective ... circumstances, above) (as recognized noted mitigating the prosecutor mit- of such that defendant’s forcefully evidence and the propriety argued evidence was igating unpersuasive. this to mislead the
All of discloses that did nothing jury the prosecutor its it with the understanding discretion and that he in fact left weighing about the value to be factors was mitigating assigned aggravating matter be decided each juror. individual by Nor can we the record that the jury conclude from our review of was to deter- misled the unadorned instruction about its sole responsibility mine, discretion, whether based on death is its individualized weighing here was unlike that this appropriate argument case. The prosecutor’s other cases in which have left a impression may People and mitigating that its factors responsibility weigh aggravating merely without of the alternative regard penalties, its view of the appropriateness of death if “aggravation and that it was sentence to return a “required” without, each juror’s personal even despite, outweighed mitigation” death was evidence, a sentence of from whether ap- conclusion about Instead, offense offender. under for the the circumstances propriate here was aimed convincing focus of the argument exclusive prosecutor’s factors; weigh aggravating way to 37Finally, prosecutor yet another suggested case, gentlemen, ladies and way factors aggravating to look at the “Another *51 ...” premeditation. and standpoint it from the of deliberation at look is death, of possibility parole, that and not life without prison the jury made this The explicit for this defendant. penalty prosecutor the appropriate life without the prison words of his “How can argument: closing in the for a man who master- of be an parole appropriate punishment possibility walls while the murder of three from behind prison young people minded a term with maximum life sentence?” The prosecutor’s message serving alone, the and the was with the to determine jury, duty jury charged was that is, death or life without of under imprisonment possibility parole whether circumstances, in this case. the punishment appropriate all the that, observes, conclusion the fact as defendant the despite reachWe in one reference the emphasized mandatory the stat wording prosecutor He told the it would be instructed that “‘if jury instruction. you utory evidence, that the evidence the aggravating outweighs mitigating conclude Shall, a death return sentence.’ not might, not may, maybe. shall [H] you the evidence the very explicit. aggravating outweighs mitigating It is If (Italics added.) shall return a verdict death." you crucial evidence whether, instruction, is heard and heard having statutory having question instruction, on that have been emphasis may misled jury the prosecutor’s sole is its to determine what responsibility authority as to penalty that, The record shows viewed appropriate. context, the instruction and the remark could not prosecutor’s reasonably misled the jury.38 have so voir dire the had
During prosecutor each carefully juror about questioned he could whether our state’s death faithfully impartially apply penalty return a verdict of law and death even the evidence showed if actual killer. Each not the selected that he juror could and responded would if the the law evidence verdict. so follow such a supported closing argument, immediately In quoting commenting after language, the “shall” returned the prosecutor jury his voir dire back to the selection we “[Gjoing jury asked process, each of questions: not, circumstances, under whether the appropriate you could you return even the defendant never penalty pulled a death though trigger. And said said could if that’s what law you you each the evidence it.” The that a who executions, then orders prosecutor argued person justified improper not hold per jury 38We did in Brown it is se instruct that it “shall” death; indeed, by implication, suggested “By directing we otherwise. impose impose aggravating penalty ‘outweigh’ death it finds that factors mitigating, ‘shall’ if unless, any juror should require not be to vote the death penalty the statute understood to completion appropriate he decides that death upon ‘weighing’ process, penalty added.) (40 p. italics under all circumstances.” Cal.3d *52 murders, cases, as to one the is in opposed many who commits actually “the most defendant “deserves the maximum that morally culpable,” thereafter, that the law allows.” the penalty argued Shortly prosecutor the should not be a defense “that for jury by voting persuaded by argument the death He reminded this case are murder.” penalty you committing the that “if will not be vote for the death in this case jury you you penalty unlawful. You will be the law and doing anything giving simply following the defendant were these: his desserts.” His final words to just jury defense is call God to show mercy “The God. mentioning They may upon And, before, what he has shown on the defendant. as I said know you mercy case, victims in ever there a ladies and gentlemen, to all these this case. If for case, capital punishment, there should be no this is death penalty. case. [1] If there is no death What we are asking penalty you in this do, evidence, ladies and is the law. Consider render a gentlemen, follow verdict, oath. What we are your duty, your do for is just asking follow for God’s ladies and mercy, gentlemen. The defendant ask justice. may you verdict, let God have And after have rendered a the soul just mercy you (Italics added.) of Clarence Allen.” Ray it of the is argument, apparent
Viewed in the context People’s would have “shall” statutory reasonable juror interpreted language, as on that not him language, suddenly divesting prosecutor’s emphasis determine his discretion to whether death or life without is parole case, him to but instead as abide appropriate penalty directing words, and, his voir dire “do in the representations, prosecutor’s duty, [his] if, follow oath” to the death after impose [and] penalty considering [his] all evidence, he concluded death was aggravating mitigating A appropriate would penalty. have been contrary understanding by any juror unreasonable, because such an of the remark interpretation prosecutor’s would contradict the thesis of the entire and it prosecutor’s argument would render his meaningless that the find death to be express plea jury “appro- priate’’ and “justified” in this case.39
For these reasons we conclude it is not was “misled to likely jury defendant’s prejudice about the of its discretion sentencing under the scope (Brown, 17.) law.” supra, 40 Cal.3d at fn. p. 39Nothing closing argument interpretation in defense gave contrary jury’s counsel’s of the Indeed, sentencing likely point. although discretion that was to confuse the on this death or life in expressly jury’s prison terms of the discretion to determine whether framed defendant, penalty argument message defense carried that appropriate counsel’s is People’s testimony shady His was that the case was based on the characters thesis implicitly. client, and that under manipulated by prosecution against these unfair were who circumstances, charges, guilty his client did not deserve to be found of the let alone be argument clearly appeal jury’s authority an assumed to death. The entire sentenced although “technically permissible,” was in penalty, whether the death fact to determine under the circumstances. appropriate justified *53 Prejudicial 3. Excessive Circumstances Special Effect of aside
Defendant next claims death must be set because the the penalty as was to consider 11 circumstances jury erroneously special ag- allowed when, (ante, 1273-1274), factors we 3 as have noted gravating pp. only murder, circumstances a witness to testi- special (multiple killing prevent retaliation, for conviction) were mony be prior-murder properly as considered factors. aggravating course,
Of error” at the a any “substantial penalty phase capital reversal of a death. v. (People (1982) case Robertson requires judgment 77, 21, 54 33 655 P.2d Cal.Rptr. (plur. Cal.3d & 63 [188 opn.) 279] J., conc.).) an error (Broussard, Whether the evidence used concerning by “substantial,” its decision is “a sentencing careful con jury requires whether there reasonable any sideration that error possibility affected [the] J., (33 (Broussard, conc.); 63 the verdict.” v. People Cal.3d at p. Davenport 247, 794, 41 Cal.3d 710 P.2d (1985) Cal.Rptr. 280 (plur. opn.) [221 861] J., (Broussard, conc.); v. 41 Cal.3d People Phillips & 295 83 J., Cal.Rptr. (Kaus, conc.) 711 84 P.2d & (plur. opn.), 85- 423] J., Furthermore, C. dis.).) observed, conc. & Justice (Bird, as Broussard 89 . .. cannot avoid that on the that no analysis grounds one knows “[w]e seemingly factor the insignificant might have scales in mind tipped what Robertson, juror.” 63.) Cal.3d at single (People supra, p.
The evidence, was instructed to consider all of the jury and to be factors, which were statutory among circumstances of guided “[t]he of which the was defendant convicted the present the crime proceeding existence circumstances admitted or any found special to be true.” instructions, which to consider the permitted jury These five excessive circumstances, special the one excessive multiple-murder witness-killing circumstance, and the two excessive prior-murder-conviction special special (ante, 1273-1274), did not pp. permit circumstances consideration of any that was not otherwise admissible relevant to evidence the penalty was jury aware of murders of three fully decision. which defendant convicted in (one the same of which was been proceeding had also a witness- murder), and of first murder for single degree which killing previously convicted. The was therefore fully had been aware that special circumstances three and involved only three multiple-murder mur ders, involved that circumstances witness-killing one and special only killing, that one such the prior-murder-conviction special circumstances Indeed, one and that one murder. these facts only prior involved were by the prosecutor during argument, in penalty phase emphasized which that two discussed the murder underlay first single witness-killing circumstances, and “how we arrived at” the special proceeded explain circumstances, nine remaining special circumstances. Those special been, “are the result of the fact has prosecutor explained, [defendant] trial, or in of four either convicted separate proceeding murder. has counts of first time someone who been convicted degree Any of a first murder and murder conviction in the same has another degree So, is a or in an earlier circumstance. proceeding, special proceeding instance, Schletewitz, convicted of the first as Bryon *54 [defendant] Rocha, murder of Schletewitz and the of Bryon Josephine murder degree White, one, second, is murder of that the and that’s and the the Douglas Kitts, Sue is three circumstances. And special murder of that Mary prior found . was convicted of the . . have . . first . similarly you [defendant] Scott White in this and he also has Douglas of proceeding, murder degree convictions, murder, murder, the Schletewitz the Rocha other three murder we arrive at the eleven way murder. So the Sue Kitts and Mary [that is] So, see, at the .... that how we arrived you circumstances special us you which the law tells must consider.” circumstances eleven special immediately in and twice both the above statement That prosecutor, of 3 number as instead mentioned the of circumstances special before40 case, cannot, to constitute substantial of this be said on the facts reasonably above, of the clear thrust reversal of the As noted requiring penalty. error not at the cir- was aimed special penalty phase argument the prosecutor’s and con- defendant’s present prior but establishing cumstance findings, crimes as factors in favor militating and uncharged aggravating victions he the death discussed the penalty: Although special the appropriateness re- in rather fashion in two of the summary merely pages circumstances he over and emphasizing detailing transcript, spent fifty-eight pages porter’s and convictions and crimes as uncharged aggravating the present prior above, that, confident of the fact discussed we In view as are circumstances. role, and that understood the of its it knew of scope sentencing its jury to determine whether death is this case— appropriate discretion exclusive evidence, the face of the and the People’s overwhelming penalty and circumstances on the as slight emphasis put special aggra- comparatively defendant’s and concomitant and present factors major emphasis vating jury “we are here because penalty argument prosecutor his reminded opening 40In found, doubt, . . . has committed three the defendant beyond a reasonable that have you Also, found to be true. special circumstances degree murders. there have eleven been first of the defendant by three the admissions jury, by you gentlemen, ladies and Eight Immediately explained thereafter he judge you.” previously which the has informed about case, circumstances of the mitigating weigh aggravating would consider and jury category aggravating circumstances: one special mentioned the circumstances as may is a fact in circumstance you consider aggravating second circumstance which “[T]he of the crime are the eleven in circumstance you crime which consider and a fact of the must special circumstances.” former convictions and crimes cannot as factors—it uncharged aggravating be said there is any reasonable error affected complained-of possibility verdict. penalty 4. as an Age Aggravating Factor 8.84.1, (i),
Pursuant former CALJIC No. subdivision the jury was instructed to consider time defendant’s at the of the crime in age its In factors. weighing aggravating mitigating People Rodriguez, ante, 113], 726 P.2d we pages held Cal.Rptr. age (Italics “should not of itself be deemed an factor.” aggravating original.) Here, without objection, the three times prosecutor during lengthy told the argument defendant’s was an penalty age aggravating factor. At the of his beginning argument stated: “Just to give you *55 . . . overview should you consider convictions prior here. We felony have nine We will in proven prior felony convictions. talk more detail about that Also, later. is an age in this in the aggravating case sense that these factor crimes, sophisticated are the was not immature when he got himself activities, involved in these criminal so the is also an age aggravating on, circumstance. Later I will about the talk factors.” possible mitigating (Italics added.) he Shortly thereafter mentioned as an age again, apparently “However, afterthought: before we into the discussion of how get we proved those ten crimes and of prior the facts those crimes a reasonable beyond prior doubt, I already have as an I think I age aggravating mentioned factor. should the convictions because that is felony [now prior fairly mention] (Italics and straight forward not time ...” simple consuming. very added.) near the he
Finally, conclusion of mentioned as argument, the age “[Ljadies in the last factor “mountain of factors”: aggravating gentle- men, we have a veritable mountain of evidence. The of circumstances the victims, we have been the horror just crime suffered the through, the crime, of nature the the violent criminal prior activity, ten premeditated victims, shot, violent crimes with who numerous were prior people people robbed, murdered, convictions, were who nine people prior felony prior because convictions. is felony Age an the aggravating sophisti- factor cation, we because so have a defendant, maturity mountain of added.) (Italics circumstances. ...” aggravating in that not prosecutor suggest age did Rodriguez an factor; instead, defendant’s aggravating merely argued age 789.) (Ante, case was not a at p. Although factor. mitigating pros- here is argument Rodriguez, ecutor’s rule we contrary expressed this misconduct, consider to be reversible do not because a timely objection Green, admonition could have cured harm. any supra, (People 1, 27.) Cal.3d event, we it
In would conclude is that the any reasonably possible statements about as an factor affected this age aggravating prosecutor’s above, As noted we are confident understood the verdict. that the jury scope role sentencing of its and its exclusive discretion to whether death determine this, this extraordinarily is case. Given massive appropriate given (and character) influential evidence potentially amount aggravating prop- this on jury, before it would unwarranted our require part erly speculation hold that above rather references to defendant’s fleeting quoted age verdict. aggravating as an factor affected the reasonably possibly conclusion Our remains the same even when we consider “cumulative of the seven excessive circumstance findings together effect” special case, defect: be facts of this cannot said there it present simply reasonable errors any complained-of affected possibility jury’s verdict. penalty
5. Other-crimes Evidence
Defendant for the first time on the admission of other claims appeal *56 crimes “error.” He recognizes force or violence was uncharged involving evidence, 190.3, (b) for such section subdivision specifically provides that it that the denies due insofar as permits statute argues process but to also such crimes on issue of has consider already guilt that decided (1985) We identical claim in v. Balderas 41 rejected People penalty. 144, 184, 204-206 711 P.2d Cal.Rptr. 480]. Cal.3d [222 Evidence Mitigating Exclusion 6. as to introduce certain
Just section other- 190.3 permits People at the it also the defendant evidence penalty phase, permits present crimes character, evidence his and mental background, history relating mitigating 858, (Id., 878; 34 (k); Easley, subd. v. Cal.3d supra, People condition. Brown, 512, 541.) In this supra, regard, put v. 40 Cal.3d People witness, He character Diane Harris. complains single ex-girlfriend, aon under Evidence Code the court exercise discretion that erred its now to witness 352 in to three questions posed objections sustaining section she meant when she had The first to describe what asked Harris Harris. when lived that defendant’s niece stating a previous by question answered him, furnished The second was “beautifully.” niece’s bedroom with asked Harris if the niece underwent while personality change living defendant. The third “what was attitude toward inquired chil- [defendant’s] dren?”
We no error. perceive As to the first the court question, was well 352, within its discretion under Evidence Code section because the witness had testified already the bedroom was furnished and because beautifully would have been descriptions irrelevant and furnishings would have consumed unduly time and misled the As to the jury. second question, we hold that from counsel absent an about what he meant explanation sustained.41 “personality change,” objection properly Fi was, as to fact, the third we note that the witness nally, question allowed testify defendant liked children and was always good them. 7. Constitutional to the 1978 Statute Challenge
Defendant asserts the statute is unconstitutional because it (1) fails to enumerate separately aggravating specifically mitigating factors; (2) exclude factors as a basis for the nonstatutory aggravating death factors; on the (3) (4) written findings aggravating penalty; require require doubt; be a reasonable (5) factors aggravating proved beyond require a death verdict that the factors be found aggravating supporting unanimously; find a reasonable doubt that (6) the jury beyond require aggravating factors those in and that death is the mitigation outweigh appropriate punishment; (7) “intercase” review. We require proportionality rejected an essen identical tially constitutional attack in People ante, Rodriguez, supra, 730, 777-779. For the reasons therein we pp. expressed conclude the 1978 statute not unconstitutional on the asserted grounds.
Defendant that his sentence additionally argues cannot stand under v. Dillon People 34 Cal.3d 477-482 Cal.Rptr. *57 asked, 41Therecord shows that question after the the immediately witness answered “yes,” whereupon following the exchange occurred: Prager [prosecutor]: “Mr. Objection. Calling for an opinion Irrelevant. part on the of witness. Ask that the the answer be stricken. right. stricken, “The Court: All objection. I will sustain the The answer will be the disregard instructed to though it. it has not been said. Treat it as Bumanglag Honor, “Mr. Your I believe Penal Code [defense Section counsel]: 190.3 character, for the provides regarding introduction of evidence the Defendant’s history, basis, [mjental condition and physical I believe condition. On that that all this evidence be admitted. background. should We are talking about Prager: change, “Mr. I don’t personality see how possible assuming the this witness that, give an opinion subject expert could like of an may which be the witness—how would be relevant to the that character of the Defendant? light “The Court: degree insignificant. The In of due of relevance is consumption of time, 352, provisions the weighing of the considerations, and Section two Evidence Code that the just inquiry.” I feel answer not relevant to this should be stricken. It’s 410, 423-429 697], (1972) Cal.Rptr. In re 8 Cal.3d Lynch [105
P.2d ante, 1236-1247, set out 217, pages In of the facts 503 P.2d view 921]. is imposed assert that punishment cannot credibly simply there merit in Nor is any his individual culpability. to disproportionate in is more for the offense question that punishment prescribed assertion crimes, death or that the penalty for less serious than that prescribed severe for prescribed to the crime is disproportionate punishment defendant’s for in other jurisdictions. same offense are denied equal defendants Defendant further claims capital sentence” of the “disparate receive the benefits unless they protection 1170, statute, (f). We cannot agree. section subdivision 1170, to uniform- (f) was promote Section subdivision adopted (DSL). v. (People law Martin sentencing the determinate goals sentence 905].) 131, 437, 722 P.2d statute 42 Cal.3d Cal.Rptr. [229 sentence review (BPT) every imposed the Board of Prison Terms requires determine, statistical simulation the DSL within one year pursuant cases, “substantial[ly] it is whether comparable differen[t]” review on other offenders com of “‘sentences expectable range imposed from (Id., at p. same offense under similar circumstances.’” mitting after (1977).) Within 120 the BPT days 60 Ops.Cal.Atty.Gen. see must is he conduct that a sentence sentencing judge “disparate,” notifies to the he board’s weight” sentence which hearing, gives “great newa Thus, unless determines he must accept finding “disparity” finding. evidence that the board selected the wrong comparison group, substantial sentences a difference from it erred finding “significant” Further, he must cases. if the finding “disparity” upheld, comparable of [subjective] there is substantial evidence his sentence “unless recall (Mar . .” considerations which sentence.. countervailing justify disparate tin, 446-448.) 42 Cal.3d at supra, pp. implicated by in mind interests
Bearing liberty the fundamental this stat classification, conclude could Legislature properly such scheme, DSL, unsuited is entirely fashioned for use under the utory First, although on which sentencing premises capital proceeds. separate judgment a death modify in a case capital authority has judge trial so as findings 190.4, (e)), circumstance subd. or even to strike (§ special (1981) 30 (see Williams People a defendant eligible parole render 1029]), sentencing Cal.3d 470, 489 443, 637 the primary P.2d Cal.Rptr. *58 waived, body represents case, a This jury. lay is a unless authority capital under process the capital-sentencing standards applies community and has exercised Once the jury sentencing. not extended to noncapital principles to reconsider be recalled function, conveniently it is cannot and its discharged
1287 the contravene that BPT determine It would sentence to be might disparate. the the role to in a hands proper sentencing place responsibility jury’s judge’s sentence whether its the adhere to deciding long-discharged for would jury “substantial evidence” if confronted of “disparity.” with a finding Second, the sentence” sentences “disparate law to isolate is designed (Martin, the supra, are “normal for beyond range” that offenses. similar broad, 445, 5.) DSL, at fn. Even under be p. may 42 Cal.3d that range the statutory it can be affected consecutive various because and by sentencing by contrast, enhancements, in different By employed ways judges. different one stands special when convicted of first one or more degree murder with circumstances, the death “range” narrows possible punishments most two without The defendant the law’s parole. life becomes for eligible therefore, is within definition, for no others. either severe penalties By range” “normal as those such expected sentences for offenses committed. defendant has death-eligible
Third, although sentencing, factors subjective role in noncapital play Martin, (see BPT’s in the determination of 42 Cal.3d supra, “disparity” 445), the are much “nonquantifiable” sentencing at p. aspects capital A all weigh be allowed greater. capital sentencing must jury crimes, information defendant, about the unrelated to his however personal suggests should not suffer irreversible which penalty unique 104, v. (Eddings L.Ed.2d (1982) death. Oklahoma 113-114 455 U.S. [71 10-11, 586, 102 1, 869]; S.Ct. (1978) v. 438 U.S. 605 Lockett Ohio [57 973, 990, 2954].) 98 L.Ed.2d S.Ct. As community’s representative, ultimate has for if death responsibility determining appropriate particular offense and In exercising essentially offender. penalty task, it own may normative its moral standards apply aggravating (Caldwell evidence mitigating 472 U.S. presented. Mississippi 231, 320, 239-247, 2633, 2639-2646]; 328-341 L.Ed.2d 105 S.Ct. [86 Brown, supra, 540-541.) Cal.3d at death It if pp. may reject persuaded on the “any do so basis of relevant evidence or obser constitutionally (Brown, supra, at italics in p. original.) vation.” ” juries the “evidence or that apparently Thus persuaded observation^] cases not be immediately not to assess the death may “comparable” penalty Caldwell, U.S. at (See from record. p. supra, apparent circum 2640].) Under these 105 S.Ct. at p. L.Ed.2d p. factual stances, Legislature superficial could conclude properly establish results sentencing among cases with opposite similarities capital sentence was imposed which more severe no the cases in presumption reasons, notion that cannot accept For we “disparate.” are all these *59 1288
equal that the protection mandate “disparate sentencing” principles pro- cedure of 1170, (f) section must be extended capital subdivision cases. circumstances, three of and judgment finding special the guilt, the judgment of death are affirmed.
Mosk, J., concurred. Although I PANELLI, the agree do not necessarily majority’s J. error, review for analysis the I concerning penalty phase standard fully errors, standard, that in the asserted agree any instant case the by were harmless. For reason I the majority’s judgment. concur
Lucas, J., concurred. BROUSSARD, J., Dissenting.— Concurring ?
? I as affirms the with the insofar it agree majority opinion judgment circumstances, of guilt and the of three of eleven but finding dissent special from the affirmance of the penalty. 637, (1985) Cal.Rptr.
In v. Cal.3d 512 People Brown 40 709 P.2d [220 440], the the California death 1978 penalty contended law enacted a was death hence unconstitutional. We “mandatory” penalty said, law, did not the we rejected require jury contention. The add factors, the and to up weights mitigating return assigned aggravating Instead, a death factors were verdict if the weightier. the we aggravating determined, serves to a normative guide judgment— weighing process Here, whether death is in the at hand. case penalty appropriate the 1978 death penalty jury language instructed in the penalty statute that "if conclude evidence you outweighs that the aggravating mitigating evidence, shall you return sentence." As we observed People a death 637, 440], Brown P.2d Cal.3d 512 this lan- Cal.Rptr. lead that once it concludes that guage may believe jury aggravating factors, make; factors it no further decision to it outweigh has mitigating believe is to return a even it does not that death obligated death verdict if is before it. Whether such appropriate giving in the penalty case said, error, an instruction determined ex- reversible Brown must be 17.) of the fn. (40 amination record of each case. Cal.3d in the case Accordingly, present the record examine majority that the closing discover made prosecutor, argument, addressing jury his view that discretion. He told clear jury’s instruction confines that it that that would be conclude " 'if you aggravating instructed that *60 sen- a death evidence, the evidence shall return outweighs mitigating you If the Shall, not tence.’ not It is may, very explicit. might, maybe. return shall evidence the evidence aggravating outweighs mitigating you in this death.” There is verdict of nothing equivocal nothing ambiguous, decision and no freedom for the to make normative language, jury Brown. by envisioned however,
The majority, go prosecutor’s to find in other of the parts he said which them what argument that he did not mean phrases suggest closing above. in the and language quoted note that both at voir dire They even reminded the that argument penalty the law a death jury permitted defendant was not though the The then quote actual killer. majority exhortation Consider to “follow the law. prosecutor’s asking jurors evidence, verdict, In an render a oath.” just do follow your duty, your assert the law that illogical leap, they only “follow the law” he meant murder, to the of commit culpability persons who others to relating engage factors; relating not the law mitigating and weighing aggravating a death he had return though and even explained to the their duty jurors did not verdict if evidence aggravating duty” was the “do weightier, your duty. mean this
The further note “de- majority that defendant that argued prosecutor the death the power served” penalty, recognize which seems to language to make a normative nor jury prosecutor decision. But neither judge that it told was decision. ever their make such right boils down argument aggravating to two assertions: Because prosecutor’s a verdict outweighs evidence it is as to return jurors mitigating, your duty And do not feel death. about because guilty doing your duty, that the jury Nowhere is there penalty. deserves anything suggest could, with its consistently ground return a life on the duty, verdict the relative weights of the factors death not the despite appropriate was penalty. that the made aware
I conclude this case was penalty jury not properly to make death its the basic normative whether decision responsibility substantial, The failure to so advise appropriate penalty. the jury reversible, error. Bird, J., J., and Reynoso, C. concurred. J.,
BIRD, Brous- Concurring I concur in Justice Dissenting. C. fully court’s trial concurring dissenting that the opinion agree sard’s instruction, the “shall” of the clarify language penalty phase failure error. I with the prosecutor’s constituted arguments, together prejudicial views on the write review issue my proportionality to express separately discussed in the majority opinion. indicate, there is no under the requirement
As Eighth my colleagues review of the states undertake sentences proportionality Amendment that *61 (1984) 37, (See Pulley v. Harris 465 U.S. in cases. 50-51 imposed capital However, 40-41, 871].) 29, S.Ct. it 104 remains an L.Ed.2d open [79 form of review is some either question proportionality required, whether or other of the federal provisions under the state Constitution Constitution. entitled, are at the least view, In individuals as a condemned matter of my Const., I, 7, (Cal. § art. (a)), subd. state constitutional equal protection review statute to guaranteed by other felons sentencing in comparative this state.
I. Court has held that the Supreme Eighth The United States Amendment does not require Constitution “comparative federal proportionality in court ... in case which the every death review an by appellate penalty Harris, it.” (Pulley requests is and the 465 supra, imposed 40].) at L.Ed.2d p. U.S. at 50-51 pp. [79 states, either by legislation does not de
Pulley
preclude
judicial
cision,
review as “an
from
additional
proportionality
requiring
safeguard
(Id.,
p. 50[79 L.Ed.2d
sentences . . . .”
death
against arbitrarily imposed
at
Pulley
in
admonished that
40].)
at
the majority
Even
p.
proportionality
consider,
courts should
that the state
if
review is “a matter
are so
they
35].)
42
L.Ed.2d at
As
(Id.,
inclined . . . .”
at
Justice Brennan’s
p.
p.
[79
noted,
30 States now
. . .
“over
some form of
Pulley
require
dissent
review before
death sentence
any
be carried
may
comparative proportionality
omitted
L.Ed.2d at
In
(Id.,
out.”
at
fn.
of the
p.
p.
spite
[79
54].1
capital
mandated sentence review in
cases. In
high
1Some state
courts have
State v. Simants
881, 890],
(1977)
quoted with approval
N.W.2d
in the
opinion
Neb. 549
lead
[250
197
587],
(1979)
Cal.Rptr.
This case is the first
to consider
Pulley
automatic appeal
since
prin-
detail whether
constitutional
review is
under
proportionality
required
basis
no credible
not at issue in that decision.
is
that there
ciples
By holding
insofar
for
least
concluding
sentence is
appellant’s
disproportionate—at
majority
as that term has been elucidated in
decisions of
court—the
past
is required
that some form of
review
recognize
implicitly
proportionality
condemned
individuals.
capitally
However,
do
on to hold
majority go
principles
equal protection
individuals,
even
require “disparate
though
review”
sentencing
for such
uniform
that review
to all
under
procedure
given
sentenced
persons
*62
(hereafter
with
holding
determinate
law
sentencing
DSL).
is
latter
It
this
2
I
which
take issue.
Frierson,
a
People
Some seven
v.
years ago,
this court in
plurality of
form of
Unfortunately, majority’s proportionality Lynch contention that inquiry. They reject appellant’s equal protection prin- demand, minimum, ciples at a the same form of sentence review given individuals sentenced Both that under the DSL. conclusion and the analysis on which it is based are flawed. severely
II. This state has in an elaborate form of already statewide place comparative review of sentences in cases noncapital felony prosecuted under the DSL. As I shall demonstrate, state demand no protection principles less in equal capital cases. 3Lynch requires first examines court “the nature of three-step analysis. The the offense offender, and/or the degree danger of both present with particular regard society.” (8 425.) Cal.3d at p. more serious The whether crimes are punished court ascertains then so, in this state less If “the challenged severely question. penalty in is than the offense (Id., compares extent suspect.” 426.) penalty court Finally, imposed p. at with (Id.,
punishments jurisdictions. 427.) imposed p. at for in other the same offense 1976, enacted the DSL in it found Legislature purpose When of “is terms best served to the seriousness by of proportionate punishment with for in the sentences of offenders provision offense uniformity Code, (Pen. the same offense under similar circumstances.” committing 1170, (a)(1).4) this legislation, subd. With detailed guidelines § statutory 1170, (See §§ initial determination of sentences were enacted. subd. for 1170.6.) (a)(2)- DSL also directed the Judicial Council to “seek to uniformity
The promote 1170, under . . by Section . of sentencing rules adoption providing in [t]he of the consideration trial time sentencing of judge criteria 1170.3.) Council (§ The Judicial detailed . .” responded by adopting .. to be trial judges (See rules utilized Cal. of sentence. pronouncing set Court, 401-453.) A stated rules of the rules objective sentencing Rules (Id., rule uniformity sentencing.” 410(g).) tois “[a]chiev[e] directives, these the Legislature remained concerned that sen- Even continue unless a statewide review disparity might tencing comparative (See 437, were established. People v. Martin 42 Cal.3d mechanism 905].) 722 P.2d It therefore mandated a Cal.Rptr. pro- 442-443 [229 as review” to known ensure of state “disparate uniformity prison cedure DSL. Within commencement under one after the imposed year sentences (hereafter term of the Board of Prison imprisonment, a defendant’s Terms board) is to review his her sentence or “to determine required BPT disparate with the sentences in similar comparison imposed [it] whether (§ (f)(1).) subd. cases.” review “concerns itself with the statistical uni disparate process DSL sentences those convicted similar crimes
formity imposed *64 (People similar circumstances.” v. Herrera 127 Cal.App.3d under 694].) 75,000 “The board has data 597 on over Cal.Rptr. acquired case, cases, in each the including, prisoner’s criminal his social history, offense, the of each the circumstances actual sentence. background, case, a board it receives new the conducts a preliminary screening When Review) to determine the of range Automated Sentence sen possible (an and the likelihood of each. A simulation gen relative computerized tences 10,000 sentences for The theoretical the cases. then computer erates the of simulated which are to sentences or percentage equal determines the actual sentence a statistical measure imposed, than provides higher between the and the actual sentence. If expected difference sentence the of threshold, as exceed an established the case identified one criteria both further analysis. requiring statutory specified. references are to the Penal Code unless otherwise
4All
“In the a board’s staff obtains list of secondary the screening process, cases staff examines the file in comparable the the case. The subject subject case and each if there are case to facts which determine comparable would none, a justify the sentence. If staff finds statistically disproportionate it refers the matter a members a hearing two board panel repre- of sentative. The panel the cases cases. If comparable reexamines subject sentence, it also finds no it directs justification a the disproportionate board’s counsel that, its the sentence is notify opinion, the court Martin, disparate.” 443.) (People v. at 42 Cal.3d supra, p. to the notification a motion trial court the form of process takes
the board that that the At the court point, court the defendant. resentence ‘First, “must undertake a must determine whether analysis. two-step [it] Second, the sentence if the imposed indeed disparate.’ [it] find[s] sentence disparate, whether to recall the sen- then decide must court[] 445.) tence. (Martin, As to first p. Cal.3d supra, [Citation.]” step, trial court consider the seriously “must not only information board; provided by finding it to the. of the board.” must weight give (Id., 446.) at p.
Martin held weight” that the trial to the board’s “great court must give finding evidence it finds that disparity “unless based substantial upon the board erred in inor deter- comparison selecting group appropriate mining that from defendant’s differs significantly sentence imposed most upon members of that If there are elements in case unique group. cases, which it render unsuitable for other or subjective comparison cases, factors which such matters can be considered distinguish it from other in the second considers whether part when the court a analysis disparate sentence is justified.
“In the second great the trial court must stage, again give weight board’s first finding stage a it disparity, finding upheld . . . analysis. . . . court [G]iving great finding require[s] weight recall its sentence evidence of unless there is substantial countervailing (Martin, considerations which supra, a sentence.” justify disparate 447-448, Cal.3d at omitted.) “the court state pp. fns. trial Finally, [must] on the record its reasons for sentence is is not disparate; finding it if finds to reduce the sentence to a but nevertheless declines disparity term, nondisparate which it should the reasons justify disparate explain *65 (Id., sentence.” 450.)5 at p. 5The disparate disparity. Among review procedure findings resulted in few of has 17,000 approximately during in state determinately prison individuals received sentenced 1, year 1982, 30,1983)
fiscal (July disparately 1982-1983 the board found that through June Terms, high (Board Sentencing sentences had of imposed Rep. been Prison only 42 cases. Practices, 1, 7.) 28, 1985) (Feb. Of pp. Determinate the 38 cases acted Sentencing Law
1295 III. concluded that unanimously court “personal liberty this ago,
Ten years itself, interest, life to as an interest second only protected a fundamental is States the United Constitutions.” v. and (People the California both under 236, 55, 375].) 251 551 P.2d A Cal.Rptr. Cal.3d (1976) 17 [131 Olivas scheme which classification affects fundamental not create a may state that it has a interest which compelling justifies showing without interest drawn are distinctions to and that the further that necessary classification 223, (1979) 25 Cal.3d v. 228 (Ibid.; People Cal.Rptr. [157 purpose. Saffell 457, (1978) 22 Cal.3d 92]; re 465 Moye In 897, P.2d Cal.Rptr. [149 599 1097].) 491, P.2d anof initial constitutional to decisions determine speak inquiry
“Some situated similarly affected are with the groups respect purpose whether action. or other state To ask whether two legislation [Citation.] groups of context, however, is situated in this the same as similarly asking whether are can be justified between them under test appropriate distinction of dissimilarities between Obvious will not groups justify protection. equal (if that scrutiny which fails strict test is lacks applicable) classification or (Fullerton to the legislative purpose. relationship a rational [Citations.]” Bd. High School Dist. State Education 3d Joint Union Cal. of 398, 798, fn. 19 654 P.2d 779, 168].) Cal.Rptr. [187 term of to a fixed felons sentenced Although imprisonment individuals dissimilarities,” to die “obvious this possess dissimilarity condemned equal of protection the state’s enough preclude scrutiny not significant differently for them so with profoundly treating respect reasons disparate who possess Several classes of “obvious persons dissimilarities” review. held to warrant scrutiny similar under the enough protection been equal have 82, 721, re Cal.3d (In (1981) 29 623 P.2d Hop Cal.Rptr. clause. court at the time of the board’s report, were final the trial by trial which courts followed upon occasions; on 15 resentencing recommendation on 23 occasions they did not. the board’s 7.) (Id., p. disparate Although opinion procedures by this review mandated compares the DSL to any capital sentencing guarantee proceedings, it is noteworthy of similar lack terms also receive degree comparative some sentenced to indeterminate review individuals individuals, who for part terms the board. These the most stand convicted of of their degree kidnapping robbery, are given a maximum second murder terms of life first or 190, 209, (See (b).) §§ they subd. Even are possibility parole. entitled to have with provide manner will release in a uniform terms for dates “set offenses of parole their respect their threat to the magnitude public, comply that will gravity similar sentencing may any Council issue sentencing the Judicial rules that information (§ (a).) dates.” subd. The board has setting párale promulgated release relevant (See, Code, e.g., Cal. implementing guarantee. § Admin. tit. 2400 et regulations murder].) degree convicted first or second individuals [applicable seq. *66 1296 disabled [developmentally and ill Newland v. Board mentally persons];
282]
(1977)
705,
620,
19
Governors
Cal.3d
710-711
566 P.2d
Cal.Rptr.
[139
of
254] [felons
misdemeanants];
457,
In re
22 Cal.3d
Moye, supra,
465-
defendants];
disordered sex
[mentally
468
offenders and insanity
People v.
Olivas, supra,
adults].)
Does
with malice and the
(see
kill
(1983)
Carlos v.
Court
Superior
1297 review to of one sentencing has benefit disparate where the state given another. it to but denied of convicted individuals group to presently this court is equipped have observed I previously Jackson, v. 28 (People supra, review. meaningful proportionality perform structure, of Bird, absence such a J.).) In the (dis. of C. at 362 opn. Cal. 3d p. ensure their to statewide sentences reviewing for the BPT’s mechanism to sentenced individuals under should be extended capitally proportionality Const., (Cal. I, 7,§ art. of our state charter. clause protection the equal review em (a).) To the extent the disparate procedures practicable, subd. (f) be utilized. should in section subdivision bodied review offer three reasons would be disparate The majority why inap First, au cases. capital they argue, “primary sentencing propriate ante, 1287.) is the not the trial Since jury, judge. (Maj. opn., p. thority” sentence, would, be to reconsider a it disparate cannot recalled jury to the “contravene the role to jury’s proper sentencing according majority, for whether the deciding long- in a hands the judge’s responsibility place on ‘substantial evidence’ if would adhere to its sentence jury discharged (Ibid., italics in with a original.) confronted finding ‘disparity.’” course, that one has ever suggested, adapting disparate No cases, sentencing would have original jury capital review procedure “reconsider” the BPT’s a death sentence finding to be reconvened in the review procedures now in Certainly nothing disparate was disparate. a trial court reconvene all of the compels participants—attorneys, place witnesses, officers, the like—who were present at the initial probation hearing. a hear- sentencing Obviously, carbon-copy replay sentencing context is in either impossible. ing this, it to assume that fallacious placing judge’s hands
Beyond a reconsider authority jury’s disparate sentence responsibility is, function. There somehow on the trespass jury’s according would Court, no federal Supreme States constitutional to a right United capital thus, there federal for is no constitutional im sentencing jury; example, determination to a to overrule a judge’s jury’s decision capital pediment be spared. defendant’s life should Florida (Spaziano that the L.Ed.2d 104 S.Ct. Florida’s [upholding procedure U.S. 3154] a a trial death sentence judge impose despite jury’s contrary whereby may fortiori, bar is no to a a death verdict].) A there judge overruling jury’s verdict. our death statute the trial penalty gives expressly judge
Significantly, Indeed, death modify jury’s verdict. whom a discretion to death is “deemed to has sentenced have made an application 190.4, (§ And, . . . .” (e).) modification subd. it is reversible error [such] fail to trial court to review independently weight for the the evidence *68 at and determine phase whether reduce the penalty verdict. presented 730, (1986) 42 Rodriguez v. Cal.3d 792-794 (People Cal.Rptr. 667].) [230 facts, the of these sentence review disparate light procedure In cannot be that a on the reduction of the ground jury’s verdict avoided the trial with would “interfere” the jury’s function. judge claim that also the sentence majority disparate law is “designed to are ‘normal sentences that the for beyond range’ similar isolate offenses.” ante, 1287.) at p. to the According majority, the “normal opn., (Maj. range” with convicted of murder life special defendants circumstances is for without of or death. “either Since is within the parole ‘normal the possibility range’ such as sentences offenses those the death-eligible of expected 1287), at (id., p. would, review disparate procedure committed” has in view, be an exercise in futility. their misses the mark. One of reasoning goal review of disparate
This a death would be to discover whether there are similarly sentence culpable individ- similar criminal who with had received backgrounds sentences uals of life of than A rather death. death possibility parole without sentence may therefore “abnormal”—in some disproportionate—and be circumstances outer sentence marks the of the though boundary “normal even range” scheme. The fact that is sentencing there no capital punishment greater render sentence death does not such a intrinsically incapable than being to lesser sentences. compared claim that
Finally, majority “‘nonquantifiable’ aspects capital in the are much than DSL context. sentencing greater” ante, (Maj. opn., 1287.) From this reason that they premise, Legislature p. at could conclude that factual similarities “superficial among capital cases properly (id., 1287) results” establish sentencing p. no opposite presumption conclude, Therefore, they disparate review disparateness. procedures cases. ill-suited capital are true the capital that the of information sentencer range is takes
It into must, be far (See as a matter constitutional imperative, reaching. account 586, 973, (1978) v. 438 604-605 L.Ed.2d Ohio U.S. 989-990, [57 Lockett 2954].) must It also true that be capital jury S.Ct. permitted 98 (Cf. its own moral standards to its determination. sentencing apply Caldwell 328-335 L.Ed.2d 472 U.S. Mississippi 239-243, 2633, 2639-2642].) S.Ct. 105 state,
However, “nonquantifiable infor- that in this one cannot ignore must consider. of the evidence capital constitutes a part mation” only there are several “quantifiable” Contrary majority’s implication, The first its determination. the sentencer bases circumstances which listed in section 190.3 circumstances mitigating of the aggravating must “take into (a) sentencer account (i.e., subds. which the (j)) through factors based choice are to a sentencing be its guided by” making of these factors information. Many closely extent on large “quantifiable” trial on which a circumstances judge aggravating mitigating parallel (See noncapital case. or lower term in a may rely imposing upper Court, 423.)6 421 & Rules of rules *69 Cal. 190.3, which, as construed in v. (k) People subdivision of section
Even 858, 878, (1983) 34 footnote 671 Easley Cal.3d 10 Cal.Rptr. 813], other circumstance which “‘any directs the to consider P.2d it is not excuse for though the of the crime even gravity legal extenuates character or record crime’ and other of defendant’s any the ‘aspect [the] basis for than death’” . . that the defendant as a a sentence less . proffers the of evidence. As several introduction au- contemplates “quantifiable” indicate, the often records before court relies tomatic appeal (k) to has subdivision not evidence that he never “been only on present conduct, with the law but other of trouble” evidence objective exemplary life. order to the sentencer to vote favor of persuade There are many noncapital as “nonquantifiable” aspects sentencing The factors which a trial base a sentence choice may well. under judge viciousness, (1) DSL include the of or “high degree cruelty, the callousness” Court, (Cal. added), (2) 421(a)(1), the offense Rules of rule italics of (rule that “victim 421(a)(3), fact vulnerable” particularly italics added), (3) the fact that the offense involved an or actual “attempted taking (rule 421(a)(10), added), of italics great (4) or value” damage monetary existence of a which of violent conduct indicates a “pattern serious (rule 421(b)(1), added), italics society” any “unusual danger added). (rule 423(a)(3), of the crime italics circumstance” 6Indeed, (§ 190.3, (a)) subd. encompasses the “circumstances of the crime” factor some relating judge may in choosing upper crime which trial consider facts or Court, 421(a) 423(a).) (See example, Cal. rules & For term. Rules of the “extreme lower 190.3, (g) nearly in section subdivision identical to the factor “coercion or duress” duress” 423(a)(4). “presence absence any prior circumstance in rule of mitigating felony 190.3, (c)) (§ prior insignificant factor subd. is similar “no record or an conviction” (rule 423(b)(1)). And, mitigating conduct” circumstance of criminal “extreme record (§ 190.3, may penalty disturbance” that the sentencer or emotional consider subd. mental suffering the fact defendant was from a (d)) is similar to that mental . . . “[t]he condition culpability mitigating (rule for the crime” significantly reduced his circumstance that 423(b)(2)). not factors do preclude disparate review even These though they tend Indeed, it be precisely because may subjectivity. toward the Legislature ’’ ‘‘ factors might nonquantifiable produce believed nonuniform sentences review disparate process deemed the it necessary. remembered that a it must be Finally, finding disparateness by the BPT result in a lower automatically sentence. Such a does finding is only in a ensure designed first closer step procedure the sen- scrutiny decision. Adapting procedure cases tencing capital would not preclude a death sentence letting from stand judge despite a trial board’s finding Martin, People (See supra, Cal.3d at disparateness. 447-448; pp. ante, 5.) fn. also see sum, no reasons have been offered which compelling
In persuade me that sentencing are so noncapital proceedings different capital vastly as to absence review in disparate cases. capital Equal justify protection here. similar treatment demands *70 review is the minimum guarantee to disparate
While which condemned clause, under state are entitled equal it protection is individuals by no of review which this form state could only In this adopt. means regard, ato review majority prototype proportionality system I refer developed review (Duizend to use in of death conducting sentences. states for et al., Review User Manual for Project, Proportionality Prototype Propor- (1984) National Review Center for State tionality Systems Courts.) The contains and outlines both a prototype questionnaires manual manual similar case selection either of which system, could be automated adapted in this state.7 use
IV. review of death sentences should be comparative Cali- required Although majority’s willingness engage Lynch-type review fornia. commendable, is the refusal to accord individuals sentenced to appeal procedures put place were disproportionate review and a death sentence such were 7If discovered, power either the trial court or this court would have section under it. That modify gives power 7 to statute courts to modify jury-selected a subdivision addition, granting ordering without new trial. In empowers section 1260 punishment if, punishment. court This power reduce could be during invoked appellate an a condemned individual’s appeal, of an sentence were dispro discovered to be pendency portionate. had for felons have nearly years regrettable. common die a which right join I decline to majority’s opinion. reason that It is for that was denied 1987. rehearing February for a Appellant’s petition