THE PEOPLE, Plаintiff and Respondent, v. ANTHONY CORNELL BEAN, Defendant and Appellant.
No. S004387. Crim. No. 22144
Supreme Court of California
Sept. 19, 1988
46 Cal.3d 919
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CORNELL BEAN, Defendant and Appellant.
Lloyd H. Riley, under appointment by the Supreme Court, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, Edmund D. McMurray, Blair W. Hoffman and David De Alba, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
EAGLESON, J.—Defendant was convicted by a jury in the Sacramento County Superior Court of the first degree murders (
Defendant contends on appeal that the judgment must be reversed because of prejudicial error in the denial of his motions for severance of the Schatz and Fox counts; for change of venue; to relieve counsel; and to disqualify the trial judge. He also argues that the court erred in admitting certain evidence, that the evidence is insufficient to sustain the verdicts, and that he did not receive constitutionally adequate representation by his trial counsel. Other arguments are addressed to assertedly improper instructions at the penalty phase; the viability of the felony-murder rule; jury selection; and the proportionality of the death penalty.
I.
All but one of the events central to both murders occurred in southern metropolitan Sacramento, not far from the intersection of Florin Road and Luther Drive. George and Beth Schatz lived in a mobilehome at the Southwind Mobile Home Estates, located off Luther Drive, south of the Luther Burbank High School which faced Florin Road at the intersection. Eileen Fox lived 10 to 12 blocks east of the mobilehome park, on Circle Parkway, south of Florin Road. Defendant‘s sister Lorraine, with whom he was staying on June 29, 1980, lived on East Parkway, a parallel street one block to the west of Circle Parkway, but north of Florin Road. His cousin, Norman Hamilton, lived in an apartment complex, the Florin Meadows Apartments, west of the high school. The apartments could be reached by crossing the high school grounds, and traversing a field through which there was a railroad track. The school property was often used as a shortcut between Luther Road and the apartments which were only 20 yards west of the railroad track. The home of defendant‘s parents, Beatrice and Royal Bean, with whom he also stayed on occasion, was three to four miles northeast of the Florin Road—Luther Drive intersection in the Glenn Elders area. Other relatives of defendant lived west of the high school in an area of Sacramento known as the Gardens.
The Schatz Murder
Beth Schatz was killed by a person or persons whо entered the mobilehome in the early morning hours of June 26, 1980, through a kitchen window. She and her husband, George, had entertained friends on the preceding evening, and had retired about 11:30 p.m. George Schatz customarily cleaned the sink and counter after doing the evening dishes, and believed he had done so on that night. He was awakened by a disturbance and stood up next to his bed. He saw two young Black males in the bedroom. One directed him to lie down and not get up. He complied with that order, lay down, and stared upward. He does not recall falling asleep or becoming unconscious, but apparently did so. Before that occurred he realized that his wife was not in the bed. He heard noises made by the intruders as they moved about the home. When he awakened or regained consciousness he heard no sounds. He arose, and found his wife lying on the floor near the foot of the bed. He knelt beside her, tried to waken her, and realized that she was dead. He then telephoned police. Until that time he did not realize that he had been injured. He was bleeding from a head wound or wounds, however, and was transported to a hospital by the police
Beth Schatz‘s death was caused by multiple blows to the head, with the injuries concentrated on the left side of her skull. The injuries included depressed fractures of her skull, and some had caused hemorrhages in the pons, the upper part of the brain stem, an area in which hemorrhage is lethal. The injuries suffered by both victims were consistent with blows from a ball-peen hammer.
Several items of property, including a television set, a 30.06 deer rifle, a shotgun, Mr. Schatz‘s wallet, a money clip, and a jewelry box were missing from the home. The couрle‘s 1977 Oldsmobile Cutlass automobile was also missing.
Shoeprints found in the flower bed under the kitchen window of the mobilehome bore a “strong indication” that they had been made by shoes owned and shared by defendant and his brother. A fingerprint found on a screen that had been removed from the kitchen window of the mobilehome was identified as that of defendant, as was a partial palm print on the edge of the kitchen counter. The palm print was placed with the fingers resting over the edge of the counter.
A security guard working the 10 p.m. to 6 a.m. shift at an auto dealership next to Luther Burbank High School at Florin Road and Luther Drive observed a car driving north on Luther Drive at a high rate of speed at 1:30 a.m. on the night of the homicide. The car barely stopped for the stop sign before skidding onto Florin Road where a highway patrol car crossed its path, but did not stop to ticket it. The car might have been an Oldsmobile Cutlass.
Cecelia (CiCi) Anders, a friend of defendant who lived in a downtown apartment about 10 miles from the Gardens area, was awakened about 4 or 4:30 a.m. on June 26 by defendant and Michael Hamilton.2 Defendant‘s cousin, Norman Hamilton, who was Michael‘s brother, was spending the night with CiCi. Norman‘s stepbrother, Clarence Harris, arrived at the apartment shortly after defendant and Michael. Defendant said that they had been at a club which stayed open all night, the After Hours. He also told CiCi that he had killed a woman, later stating to her: “I don‘t know if I killed that bitch,” and “I don‘t know if she‘s dead or not.” Norman Hamilton recalled that defendant said he had beaten the woman. Defendant also said that he had taken a TV and a 30.06 rifle that he planned to sell; that he
Michael was present during this conversation but said little other than that he had done nothing, and was not going to “ride the beef.” Dеfendant and Clarence Harris left the Anders apartment about 5 a.m., having been there for about 45 minutes.
The Schatzes’ Oldsmobile Cutlass was found abandoned in a field in the Gardens area at 19th Street and O‘Neil Way. The car had not been in the field at 5:30 a.m., but was seen there at 6:30 a.m. The keys were found later in the yard of a home on 19th Street adjacent to the field. A ball-peen hammer, on the head of which was found blood of a type matching that of George Schatz, was found on the floorboard of the Cutlass near the passenger seat.
Defendant testified, offering alibis for the time of each murder. He also testified that he had been in the Southwind Mobile Home Estates on June 25 (the day before the Schatz murder), and that he had pried open the screen over the kitchen window of the Schatz home and leaned inside to see if there were items that he could steal. He had entered the trailer court while on his way to his cousin‘s home because that was a quicker way. The trailer court was to the immediate south of the high school. After leaving the trailer court, defendant hopped a fence into the high school grounds and went over the railroad tracks to the apartment complex on the west.
The Fox Murder
Eileen Fox, a 65-year-old retired nurse, lived alone in her home on Circle Parkway, across the street from the “E.J. Crawford” park.3 She died on June 29, 1980, apparently from heart failure precipitated by an attack and beating which caused multiple injuries on her face, ear and head. The injuries were inflicted by a blunt instrument such as a human fist or foot. The attack occurred at or about 5:30 p.m., apparently as the victim carried a grocery sack from her car into her house. A torn grocery sack and several grocery items were on the floor near the body. Her eyeglasses were broken; one half was found on the porch, the other half inside the house near the body. A pair of brown, plastic-framed sunglasses was also found on the floor a few inches from the victim‘s left hand. Her purse and automobile were missing when the body was found.
About three weeks prior to the murder of Eileen Fox, her neighbor had seen defendant and another person in the park across the street from her home, sitting in the bushes. The neighbor had seen defendant in the park on two prior occasions. The park was a neighborhood park with trees, shrubbery, and grass, but only one picnic table. It was unusual to see persons back in the bushes. The children who regularly used the park were normally in the area by the swings.
In late June 1980 defendant had been living with his sister Lorraine at her home on East Parkway, north of Florin Drive.
A single fingerprint useful for identification purposes was found on the brown plastic-framed sunglasses. Several prosecution witnesses offered their opinions that even though it appeared that there had been two prints, one overlaid on the other, it was possible to use one of those prints, and identified it as that of defendant. Defense witnesses whose credentials were equally weighty, testified that the print was not useful, or was not that of defendant.
II.
GUILT PHASE ISSUES
We reject defendant‘s claim that the evidence as to either count was insufficient. An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, detеrmine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. (People v. Towler (1982) 31 Cal.3d 105, 118.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence (People v. Wiley (1976) 18 Cal.3d 162, 174-175; People v. Yrigoyen (1955) 45 Cal.2d 46, 49
In this case there was no claim that the offenses charged in the Schatz matter had not been committed. The only issue was the identity of the perpetrator. As to that, there is no question that a reasonable jury could conclude that the evidence established defendant‘s guilt beyond a reasonable doubt. Although defendant offered an explanation for his fingerprint on the window screen and palm print on the sink counter of the Schatz home, the jury disbelieved him. That evidence, coupled with the evidence of his admissions, including details such as the near collision with the highway patrol car which could not have been known to and reported in the media, the shoe print, and the proximity of the Southwinds Mobile Home Estates to the homes of relatives with whom defendant often stayed, all point to defendant as the perpetrator of the Schatz offenses.
Less evidence linked defendant to the Fox murder. A pair of sunglasses bearing what the People‘s experts identified as defendant‘s fingerprints was found next to the body of Eileen Fox,4 and the defendant admitted owning a pair of similar sunglasses.5 In addition there was evidence that
Similarly, the evidence was sufficient to support the jury‘s conclusion that the murder was committed in the perpetration of a burglary and a robbery. The location of the victim‘s glasses, (half of which were found on the porch of her home, the other half having been found near her body), the partially open door, and the broken sack of groceries found inside the house all suggest that defendant assaulted the victim with the intent of committing robbery as she was entering her home, and that he actually entered the house to further that intent. The evidence also supports the verdict insofar as the jury concluded that an actual robbery occurred. It is possible that the victim had left her purse in the car and it was not on her person, but an equally, if not more, likely inference which the jury might permissibly have drawn is that she had her purse with her as she left the car to enter the house. On review of the judgment this court must presume in support of the judgment the existence of any facts that the jury might reasonably infer from the evidence. (People v. Vann (1974) 12 Cal.3d 220, 225.) Having done so, we conclude that the evidence is sufficient to support the verdicts as to each of the counts and special allegations.
Denial of the Motion for Severance
Defendant‘s argument that the trial court abused its discretion in denying his pretrial motion for severance of the Fox counts from the Schatz
Section 9546 authorizes joinder of offenses of the same class and offenses connected together in their commission. These criteria were met here: the two murders are offenses of the same class, and the related crimes were connected in their commission to the murders.
Section 954 also provides, however, that a trial court may order severance in the trial of otherwise joinable offenses when it appears that separate trials are required in the interest of justice. The provision reflects an apparent legislative recоgnition that severance may be necessary in some cases to satisfy the overriding constitutional guaranty of due process to ensure defendants a fair trial. (See Williams v. Superior Court (1984) 36 Cal.3d 441, 452.)
As this court noted in Williams, the potential for prejudice in joining unrelated offenses in a single trial lies in the introduction of “other crimes” evidence from which the jury might infer that the defendant has a criminal disposition—a factor which the jury is not permitted to consider in determining his guilt of the charged offense. (
A ruling on a motion to sever is based on a weighing of the probative value of any cross-admissible evidence against the prejudicial effect of evidence the jury would not otherwise hear, but in the weighing process the beneficial results of joinder are added to the probative value side. Therefore a defendant seeking severance must make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial. (Williams v. Superior Court, supra, 36 Cal.3d 441, 451.)
When a trial court considering a defendant‘s motion for severance of unrelated counts has determined that the evidence of the joined offenses is not “cross-admissible,” it must then assess the relative strength of the evidence as to each group of severable counts and weigh the potential impact of the jury‘s consideration of “other crimes” evidence. I.e., the court must assess the likelihood that a jury not otherwise convinced beyond a reаsonable doubt of the defendant‘s guilt of one or more of the charged offenses might permit the knowledge of the defendant‘s other criminal activity to tip the balance and convict him. (See Williams v. Superior Court, supra, 36 Cal.3d 441, 451.) If the court finds a likelihood that this may occur, severance should be granted.
We turn now to the application of these rules to the case at hand, considering the matter on the basis of the evidence before the court at the time of its ruling. (People v. Brawley (1969) 1 Cal.3d 277, 292.)
The People argued and the trial court agreed, that the evidence of the Schatz offenses would be admissible in a separate trial of the Fox charges because it disclosed a distinctive modus operandi, i.e., that there was a sufficient number of distinctive marks in the manner in which the two murders were committed as to give rise to a reasonable inference that they had been committed by the same person. The evidence relevant to the Schatz murder would have been admissible, therefore, in a separate trial on
We do not agree that this evidence demonstrated a common modus operandi and thus warrants an inference that the same person committed each.
To be admissible as modus operandi evidence there must be common marks which, considered singly or in combination, support the strong inference that defendant committed both crimes. (People v. Alcala (1984) 36 Cal.3d 604, 632.) These common marks must be distinctive rather than ordinary aspects of any such cаtegory of crime. They must be sufficiently distinctive that they bear defendant‘s unique “signature.” Reaching a conclusion that offenses are signature crimes requires a comparison of the degree of distinctiveness of shared marks with the common or minimally distinctive aspects of each crime. (Id. at pp. 632-633; see also Williams, supra, 36 Cal.3d at p. 450; People v. Guerrero (1976) 16 Cal.3d 719, 725; People v. Antick (1975) 15 Cal.3d 79, 93-94; People v. Thornton, supra, 11 Cal.3d 738, 756; People v. Haston (1968) 63 Cal.2d 233, 245-247.)
In the present case, the Fox and Schatz crimes were similar in that they occurred in the same neighborhood, within 10 to 12 blocks of each other, and involved entry into each victim‘s home. Both attacks involved blunt trauma to the head and an obvious motive of theft. The crimes occurred within three days of one another and both concluded with theft of the victim‘s car and abandonment of the car in the same general area. These factors are not unique, however, and do not establish a unique modus operandi.
In fact, the crimes were quite dissimilar. Although both were committed in the southern area of Sacramento, the Fox murder occurred in a house approximately a mile from the site of the Schatz mobilehome. The Schatz offenses involved entry into a residence occupied by a married couple, an entry by two persons through a window from which the screen had been
The distinctions were significant and in combination tend to negate, rather than support, an inference that the same person committed each group of offenses.
The evidence, therefore, was not “cross-admissible.” Having reached this conclusion, we must consider whether the trial court abused its discretion in denying the motion for severance, or whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant‘s guilt of each set of offenses.
In cases in which the evidence to be introduced relates to an uncharged offense the People, as the proponent of the evidence, bear the burden of persuading the judge that the potential prejudice from the jury becoming aware of the uncharged offense is outweighed by the probative value of the evidence. This is proper because evidence of uncharged offenses is generally inadmissible. (
The burden is reversed, however, when the offense to which the evidence is relevant is a charged offense, properly joined with another for trial. The prosecution is entitled to join offensеs under the circumstances specified in section 954. The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Ruiz (1988) 44 Cal.3d 589)
Cal.3d 589, 605 [244 Cal.Rptr. 200, 749 P.2d 854]; People v. Balderas (1985) 41 Cal.3d 144, 173 [222 Cal.Rptr. 184, 711 P.2d 480].) When the offenses are joined for trial the defendant‘s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.8
Defendant did not carry that burden. The potential prejudice he demonstrated was not such that the court‘s denial of severance was an abuse of discretion. This is not a case in which, at the time the ruling was made, the evidence of defendant‘s guilt of one or more of the joined offenses was weak, while evidence of the other was strong.9 And neither offense was particularly inflammatory in comparison with the other. There was substantial evidence of defendant‘s involvement in each. His own admissions implicated him in the Schatz offenses, and his fingerprint on the sunglasses found near the body of Eileen Fox strongly implied his involvement in her murder.10 It did not appear reasonably likely, therefore, that the jury would be influenced in determining defendant‘s guilt of either group of offenses by knowledge of the other.
The benefits to the state of joinder, on the other hand, were significant. Foremost among these benefits is the conservation of judicial resources and public funds. A unitary trial requires a single courtroom, judge, and court attaches. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the
Although we conclude that the trial court did not abuse its discretion in denying the pretrial motion for severance, when the issue is raised on appeal we must also consider the actual impact at trial of the joinder. (See Pointer v. United States (1894) 151 U.S. 396, 403-404 [38 L.Ed. 208, 212, 14 S.Ct. 410]; People v. Kelly (1928) 203 Cal. 128, 134 [263 P. 226].) Here we look to the evidence actually introduced at trial to determine whether “a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.” (People v. Turner (1984) 37 Cal.3d 302, 313 [208 Cal.Rptr. 196, 690 P.2d 669].) Having done so, we find neither actual nor potential prejudice such as to render the trial grossly unfair and thus deny due process. Although at trial the reliability of the fingerprint evidence in the Fox murder was disputed, other evidence pointed to defendant as the perpetrator. His contradictory explanation of his ownership of those or similar sunglasses; his presence in the neighborhood when he was seen possibly “casing” the home; his familiarity with the route to the Florin Meadows apartments from the location at which the victim‘s car and wallet were abandoned, as well as fingerprint evidence was sufficiently persuasive evidence of his guilt that it is not reasonably probable that the jury was influenced in its verdict of guilt of the Fox crimеs by its knowledge of his involvement in the Schatz offenses. (See United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481, 494, 105 S.Ct. 3375].) The evidence of his guilt of the latter was, of course, very strong and no spillover effect of the Fox evidence could have affected the Schatz verdicts.
We conclude, therefore, that the trial court properly denied the motion for severance, and that joinder of the Schatz and Fox counts for trial does not require reversal.
Denial of the Motion for Change of Venue
Defendant next argues that the trial court committed reversible error in the denial of his pretrial motion for change of venue. The motion was heard on April 6, 1981. Jury selection commenced on April 22, 1981. The motion was supported by numerous exhibits, including copies of newspaper stories about the offenses, a videotape of a television news broadcast, scripts from such broadcasts, evidence of newspaper circulation and television viewer figures, as well as testimonial evidence of a telephone survey to
After weighing the nature and extent of the publicity, the gravity of the offenses charged, the size of the community, the prominence of the victims, and defendant‘s status as a resident of the community, as well as the evidence that some persons in the community had an opinion, the court denied the motion for change of venue. The judge stated, however, that if during the jury selection process it appeared either on the court‘s own motion or on motion of counsel that because of the publicity defendant could not get a fair trial, one would be afforded. The motion was denied without prejudice to renewal if it appeared during the jury selection process that it did not appear that a fair trial would be possible in Sacramento County. Appellant did not renew his motion.
A change of venue must be granted if a defendant demonstrates that there is a reasonable likelihood that a fair trial cannot be held in the original county. (See People v. Balderas, supra, 41 Cal.3d 144.) When extensive publicity forms the basis for a claim of potential prejudice, an appellate court reviewing the denial of a motion for change of venue must independently examine the record and determine whether in light of the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim and of the accused, it is reasonably likely that a fair trial cannot be had. (Martinez v. Superior Court (1981) 29 Cal.3d 574, 578 [174 Cal.Rptr. 701, 629 P.2d 502].) In this context, the ability to assure the defendant a fair trial, and the impact of prejudicial publicity, are measured by whether the defendant has “‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S., at 722. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. . . . ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Id., at 723. At the same time, the juror‘s assurances that he is equal to this task cannot be dispositive of the accused‘s rights, and it remains open to the
When the defendant asserts error in the denial of a motion to change of venue on appeal, the reviewing court must also examine the record of the voir dire of the jury to determine if the potentially prejudicial publicity did, in fact, affect his ability to obtain an impartial jury. (
Applying these rules we find no error in the denial of the motion for change of venue or in the failure to order a change at or during jury selection. The coverage of the murders by the local media was factual, not sensational. The newsрapers reported not only defendant‘s identity as a suspect, but his surrender by his father, his denial of knowledge about the murders, and the arrest of Michael Hamilton who had fled to St. Paul. Although these news stories were front page news until August 1980 in the Sacramento Union, they were not given great prominence in the Sacramento Bee, and there was no evidence that the coverage continued into 1981, the year of jury selection and trial. Trial actually began nine months after the last news article appeared. Sacramento County is one of the 10 most populous counties in the state, and the area from which the jurors were called is metropolitan, not rural. Defendant and the victims were residents of the same area. He was not a stranger to the community. The victims, while known and loved in their circle of acquaintances, were not prominent in the community.12
Defendant‘s evidence demonstrated that only half of the adult English speaking population had any recall of the crimes at the time of jury selection. The actual voir dire of the jury panel confirms the wisdom of the trial court‘s ruling. Defendant points to no aspect of the jury voir dire as reflecting a prejudicial impact flowing from the earlier publicity. Our review of that voir dire suggests that of the jurors on the panel who had any recollection, none remembered anything more than that he or she had read something about the case earlier. None had a present recall of any of the facts other than that the homicides had occurred and the location. Nothing in the record supports a conclusion that any juror who did serve, and who had heard or read something about the case, would not be able to set aside
Defendant has not established that he was denied a fair trial in Sacramento County by virtue of the impact of the pretrial publicity upon his ability to select a panel of impartial jurors.
Admission of Photographs
Defendant contends that the court erred in admitting photographs taken at the scenes of the murders and in the coroner‘s office depicting the bodies of Beth Schatz and Eileen Fox. He argues that since the defense did not contest the cause of death in either case the sole purpose for admission of the photographs was to inflame the jury. On the same basis he also asserts error in the admission of photographs of the wounds suffered by George Schatz.
Defendant does not specify any particular exhibit as objectionable, making only an assertion that it was error to admit any photographs of the bodies or of the wounds suffered by George Schatz. We disagree. Admission of photographs of the victims is within the sound discretion of the trial court, and that discretion will not be disturbed unless it is manifest that the probative value of the evidence is outweighed by its prejudicial effect. (People v. Phillips (1985) 41 Cal.3d 29, 54 [222 Cal.Rptr. 127, 711 P.2d 423].) It is apparent from the record that the trial judge considered both the relevance of the photographs and the potential prejudicial effect of admitting them. Indeed, defendant does not suggest that any objection was made to the admission of many of these photographs, and our review of the record confirms that many were admitted after counsel expressly stated that he had no objection.
Defendant did object at trial to several photographic exhibits, not all of which depicted the victims. Defendant‘s objection in each case was based on
Ineffective Assistance of Counsel
Defendant next argues that he did not receive constitutionally adequate representation by his trial counsel. In support of this claim he asserts that counsel “apparently” failed to investigate or consider a diminished capacity defense, although evidence of defendant‘s mental state was offerеd at the penalty phase. At that phase of the trial evidence offered by two psychologists suggested that defendant had a “borderline I.Q.” and may have suffered neurological damage. Reference is also made to trial counsel‘s failure to follow up a line of questioning that might have revealed drug use or possible voluntary intoxication on the part of defendant.
The omissions identified by counsel do not establish a basis for relief on this record. The scope of an appeal is limited to the record of the proceedings below. (
The second defense expert, Dr. Joan Blunt, a clinical psychologist specializing in neuropsychology, concluded on the basis of tests she had administered that defendant had a “major” lesion at the juncture of the superior temporal lobe, the inferior parietal lobe, and the occipital lobe of the brain. In the opinion of Dr. Blunt this defect would not affect defendant‘s sight or hearing, but would make it extremely difficult for him to understand what was said to him, what he was seeing, and put it together to make sense of it. Because of this he had trouble thinking. The deficit in the frontal region would affect his judgment and his ability to predict the consequences of his actions.
Neither expert was asked, and neither offered an opinion on defendant‘s ability to intend to steal, the mental element crucial to a conviction of murder on the two felony-murder theories, robbery and burglary, advanced by the People. Nothing in their testimony suggests that any mental defect from which defendant suffered might affect that element. We cannot conclude on the basis of this record, therefore, that counsel‘s failure to present a diminished capacity defense at the guilt phase denied defendant a potentially meritorious defense.
Defendant was represented at trial by a supervising assistant deputy public defender for the County of Sacramento. The record reflects a vigorous and competent defense. When the record on appeal “sheds no light on why counsel acted or failed to act in the manner challenged . . . unless
Here defendant presented an alibi for the time of each offense. Counsel may well have concluded that this defense was stronger than a diminished capacity defense would have been in a case in which a felony-murder theory was advanced by the prosecution. Since the record does not confirm the assertion that counsel failed to investigate or consider a diminished capacity defense, and there clearly may be a satisfactory explanation for counsel‘s tactical choice of defenses, this claim does not afford a basis for relief.
Marsden Error
Dеfendant next claims that the trial court erred in denying his motion to relieve trial counsel. In an argument which confuses the distinction between a defendant‘s right to “discharge” counsel and represent himself (see Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; People v. Windham (1977) 19 Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187]), and the right of a defendant to have appointed counsel relieved and new counsel appointed if the first is not providing adequate representation (see People v. Marsden (1970) 2 Cal.3d 118, 123 [84 Cal.Rptr. 156, 465 P.2d 44]), defendant argues that a criminal defendant has a right to discharge counsel if he becomes dissatisfied with the manner in which counsel has handled his case, and that the court failed to make an inquiry into the reasons for his dissatisfaction at the time he sought to have counsel relieved.
At no time did defendant seek to discharge counsel and represent himself. On three occasions he sought to have counsel relieved, and other counsel substituted. On each occasion he was afforded an opportunity to fully explain his reasons, and no abuse of discretion appears either in restricting his ability to do so, or in the denial of his requests.
Defendant first moved orally on February 20, 1981, to be “relieved of counsel [because he] hasn‘t done anything for me since I‘ve been here. . . he will not file any 995 or any 1538.5 hearing. . . .” Defendant requested the appointment of private counsel, the attorney who now represents him
Thereafter, on March 20, 1981, a formal, noticed, motion to have counsel relieved was filed on defendant‘s behalf by his appointed counsel. In his declaration accompanying the motion defendant stated that he did not have confidence that his attorney was doing all in his power to reach a “successful conclusion” to the case; that he was unable to trust his attorney and thus could not have effective assistance in the preparation of the case; and that for those reasons he was unable to discuss the case fully with counsel. The trial court then appointed special counsel to assist defendant in presenting his motion and conducted a hearing on the motion on March 25, 1981, after which the motion was denied. It is manifest that defendant was afforded adequate opportunity to explain his dissatisfaction at this stage. Denial of the motion was proper.14 If the court is satisfied that counsel is providing constitutionally adequate assistance there is no right to have counsel whom defendant might prefer, or in whom defendant has more confidence, substituted. (People v. Walker (1976) 18 Cal.3d 232, 238 [133 Cal.Rptr. 520, 555 P.2d 306]; Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934-935 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984]; People v. Williams (1970) 2 Cal.3d 894, 905-906 [88 Cal.Rptr. 208, 471 P.2d 1008].)
Defendant was permitted to renew his motion on April 10, 1981, at which time the court conducted an ex parte hearing in camera on the matter. Defendant does not argue that the court failed to afford him a full opportunity to explain the basis for his motion at the April 10 hearing, or that the court abused its discretion in denying the motion at that time. Marsden, supra, 2 Cal.3d 118, requires that the court afford a defendant an opportunity to state the reasons why he believes a court-ap-
Motion to Disqualify the Trial Judge
On August 21, 1980, defendant was arraigned and entered his plea in Department 5 of the Saсramento County Superior Court before Judge Sheldon Grossfeld. Jury trial was set for October 14, 1980, after which the judge stated: “In accordance with our conversation in chambers, do you agree that the trial will be in this department, Department 5.” Counsel stated that they had no objection. The court then set a pretrial conference for September 29, 1980, after which the judge inquired: “Since the matter has been assigned to this department, do you waive your right under
On April 8, 1981, however, defendant moved to withdraw his waiver of the right to peremptorily disqualify the judge.15 The court denied leave to file a motion to disqualify, noting that the court had at that time had made
At the time the motion was made, April 8, 1981, the trial date had been set for April 20, 1981, more than five days after the motion. The trial date had been reset from April 13, 1981, on April 6, 1981. Therefore the motion may have been timely. Nonetheless, since there had been a waiver of the right to make a peremptory challenge under
Other Guilt Phase Issues
Defendant claims that the trial court erred in instructing the jury on aiding and abetting with respect to the Schatz offenses. The instructions given prior to this court‘s opinion in People v. Beeman (1984) 35 Cal.3d 547, 556 [199 Cal.Rptr. 60, 674 P.2d 1318], comported with People v. Yarber (1979) 90 Cal.App.3d 895 [153 Cal.Rptr. 875], inasmuch as they made clear that an aider and abettor must have the purpose of aiding and abetting when he acts.17 The instructions did not fully comply with Beeman,
The error was not prejudicial. It is clear that the jury did not convict defendant of the murder as an aider and abettor. He was found to have personally used a deadly and dangerous weapon in the commission of the murder of Beth Schatz and to have inflicted great bodily injury on George Schatz. There is, therefore, no possibility that he was convicted as an aider and abetter of Michael Hamilton. Indeed, as respondent notes, the prosecutor did not rely on an aiding and abetting theory stating that no evidence supported it. Defendant objected to the court‘s proposed instructions on aiding and abetting because the evidence indicated either that there were two principals, of whom defendant was one, or defendant was not involved in the Schatz offenses.
Defendant‘s attack on the felony-murder rule applied in this case lacks merit. A similar argument, based on the decision of the Michigan Supreme Court, interpreting the common law of that state in People v. Aaron (1980) 409 Mich. 672 [299 N.W.2d 304, 13 A.L.R.4th 1180], was rejected by this court in People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697]. We noted there that unlike the Michigan felony-murder rule, the first degree felony-murder rule in California is statutory. (
III.
SPECIAL CIRCUMSTANCES
Defendant argues that the special circumstances alleging murder in the commission of robbery and murder in the commission of burglary must be set aside inasmuch as the jury was not instructed that it must find intent to kill. In so doing he relies on Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], in which the court concluded that an intent to kill should be an element of the felony-murder special circumstances created by the 1978 initiative death penalty law as
IV.
PENALTY PHASE ISSUES
Prosecutorial Misconduct
Defendant claims the prosecutor improperly based his argument on “future dangerousness” notwithstanding the absence of evidence to support that theory. We disagree. His conduct in the commission of the instant offenses, evidence of other violent conduct, and the testimony of his own expert relating that conduct to his mental state is sufficient evidence to warrant an inference that he might engage in similar conduct in the future. Nor was this argument prohibited by People v. Murtishaw (1981) 29 Cal.3d 733, 767-774 [175 Cal.Rptr. 738, 631 P.2d 446]. That case involved only the admissibility of expert opinion predicting future dangerousness.
Defendant also claims that the prosecutor improperly suggested to the jury that death was an appropriate penalty because keeping defendant in prison for the rest of his life would be a financial burden on society. When read in isolation that statement might be understood to relate to the financial burden of housing a prisoner. However, in context the reference was to the possibility defendant would pose a danger were he to escape from prison and would in any case be a danger to other persons in prison—both prisoners and guards. It is not clear that the reference was intended to be, or was understood as one directed to, financial considerations.
Defendant characterizes some of the prosecutor‘s argument as a deliberate misstatement made for the purpose of inflaming the passions of the jury. In support of this claim he notes that the prosecutor suggested that defendant‘s criminal pattern involved attacks on “elderly ladies” and that he had stolen “purses,” whereas Beth Schatz was 56, and only one purse was taken. Whatever the proper view of “elderly” was from the prosecutor‘s stand-
Instructions on Aggravating and Mitigating Factors
Defendant claims that the ambiguity in the instructions to the jury that it should consider the statutory aggravating and mitigating factors, without further explanation of how each should be treated permitted the prosecutor to argue, and the jury to consider, defendant‘s age as an aggravating factor. The prosecutor did suggest that age might be an aggravating factor, concluding that in this case it was not mitigating since defendant had committed prior crimes of violence and notwithstanding his probation officer‘s offer of help had committed himself to a barbaric life. Ultimately, the prosecutor argued that defendant‘s age was certainly not a mitigating factor, and while it might be neutral, he would argue for consideration as an aggravating factor.
The absence of a mitigating factor is not itself to be considered aggravating in penalty deliberations. (People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861].) Because age is a factor over which a defendant has no control (People v. Rodriguez (1986) 42 Cal.3d 730, 789 [230 Cal.Rptr. 667, 726 P.2d 113]), mere chronological age by itself is not relevant to the appropriate penalty and is neither aggravating nor mitigating (People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052]). It may be considered in relation to other age-related matters bearing on the penalty decision. (Ibid.) Argument which refers to age in relation to other aspects of the defendant‘s background as either mitigating or aggravating is permissible, however. As we concluded in Lucky, counsel may argue and invite the jury to draw either a mitigating or aggravating inference from “any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.” (Ibid.)
Here the prosecutоr‘s argument was directed to the facts which suggested that defendant‘s age should not be considered mitigating. The prosecutor stated that when considered in relation to defendant‘s record, the jury should consider age aggravating. The context in which the statement was made invited the jury to consider the relevance of those age-related matters to the appropriate penalty.18 The argument was not improper.
Defendant argues that it was error on the part of the trial court to instruct on, and the prosecutor to argue on the basis of, all of the statutory aggravating and mitigating factors. We disagree. Advising the jury of all of the statutory factors is proper. By informing the jury of the factors which the state considers relevant and appropriate in the penalty decision, the court helps the jury to put the particular crime in perspective. A capital jury, lacking the overview of cases in which the death penalty has been imposed that a judge might have, may not be familiar with the range of factors by which culpability is appropriately assessed in such cases. With knowledge of the full range of factors identified by the state as particularly relevant, a capital jury is better able to place the particular defendant‘s conduct in perspective. If all jurors are made aware of these factors, their exercise of discretion is further channeled and directed, and the possibility of arbitrary or capricious imposition of the death penalty is lessened. Giving juries this type of guidance was encouraged by the United States Supreme Court in Gregg v. Georgia (1976) 428 U.S. 153, 192 [49 L.Ed.2d 859, 885, 96 S.Ct. 2909], where the court recognized that jury inexperience in sentencing might make it difficult for jurors to recognize and properly use information relevant to sentence choice, saying: “[T]he problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.”
Defendant also complains that in instructing on the statutory factors in aggravation and mitigation the court improperly restricted the jury‘s consideration of the mitigating evidence of mental defect which he offered at the penalty phase of the trial. The court did, in reciting those factors,
Excessive Special Circumstances
Relying on the proscription of multiple punishment found in
A similar argument was rejected in People v. Melton (1988) 44 Cal.3d 713, 765-769 [244 Cal.Rptr. 867, 750 P.2d 741], in which we found the reasoning of Harris unpersuasive insofar as it concluded that
In Melton, we observed that a penalty jury is directed by
We find no reason, therefore, to depart from the conclusion reached in Melton that in permitting, indeed directing, a penalty phase jury to consider any special circumstances found to be true
Ramos Error
Defendant claims that the death verdict must be set aside because the jury was given the instruction condemned by this court in People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430]. The instruction was never given, however. With the acquiescence of the prosecutor who had inquired of the Attorney General and advised the court that it was anticipated that the instruction would be held to be improper, the court decided it would not give that instruction.
Brown Error
Defendant also argues that the court‘s instructions did not inform the jury that it was free to opt for life imprisonment rather than death if it concluded on the basis of any mitigating evidence that life without opportunity for parole was the appropriate penalty. (People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440].) Although the court modified the standard instructions, anticipating our later decisions in People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813], and People v. Lanphear (1984) 36 Cal.3d 163 [203 Cal.Rptr. 122, 680 P.2d 1081],20 an instruction was given in statutory language that if the jury concluded that “the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” The amplification suggested in Brown,
The argument by defendant‘s counsel reinforced the view that a qualitative, not quantitative, weighing process was called for. Counsel conceded that he had only defendant‘s mental state and background to offer as mitigating factors, but told the jury that it was “your job to weigh those against the aggravating factors” and the jury could conclude that they outweighed the aggravating factors. There is no question but that the arguments made it clear to the jury that the decision ultimately was for the jury alone, and did not mislead the jury as to the scope of its sentencing discretion. (People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal.Rptr. 849, 729 P.2d 115].)
Other Claims
Defendant‘s claim that use of peremptory challenges to exclude jurors who express reservations about the death penalty denies defendants an impartial jury trial is similar to that rejected by this court in Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]. The evidence did not support the premise that a “death qualified” jury was more disposed to convict. The court recognized there the possibility that the selection process could affect the penalty decision also. This record contains no evidence whatsoever to support the claim or cause us to reconsider the question. Defendant‘s additional claim that such juries do not reflect a fair cross-section of the community has also been rejected repeatedly by the United States Supreme Court as well as this court. (Buchanan v. Kentucky (1987) 483 U.S. 402 [97 L.Ed.2d 336, 354, 107 S.Ct. 2906]; Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]; People v. Bloyd (1987) 43 Cal.3d 333, 346 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Zimmerman (1984) 36 Cal.3d 154, 160-161 [202 Cal.Rptr. 826, 680 P.2d 776]; People v. Fields (1983) 35 Cal.3d 329, 353 [197 Cal.Rptr. 803, 673 P.2d 680].)
Finally, defendant claims that death is a disproportionate penalty for the murder of Beth Schatz. He argues therefore that the sentence should be set
The People contend that
A related contention by the People was rejected by this court in People v. Superior Court (Engert) (1982) 31 Cal.3d 797 [183 Cal.Rptr. 800, 647 P.2d 76]. There the People contended that
In Engert this court held that
Upon consideration of the circumstances of the murder of Beth Schatz, as well as those relating to defendant‘s background and circumstances, however, we cannot say that death is a disproportionate penalty which constitutes cruel or unusual punishment under
Defendant‘s claim that reliance on a felony-murder special circumstance to determine eligibility for the death penalty violates the
The judgment is affirmed in all respects.
Lucas, C. J., Panelli, J., Arguelles, J., and Kaufman, J., concurred.
BROUSSARD, J.—I concur in the affirmance of the convictions of defendant for the offenses against Beth and George Schatz, and the special circum-
I disagree with the majority‘s holding that the trial for the Fox murder was properly joined with the trial for the Schatz crimes. The two crimes bore no distinctive common marks; evidence of one would not have been admissible at a separate trial for the other. As to the Schatz counts, the evidence presented at trial was overwhelming, so that I agree that the addition of the Fox evidence did not prejudice defendant as to the Schatz counts. However, as to the Fox counts, the error in conducting a joint trial was prejudicial because the evidence that defendant committed the Fox offense was extremely weak. As for the penalty verdict in the Schatz case, the evidence in the Fox case was so weak that a jury determining penalty after a separate trial for the Schatz crimes may well have found that the prosecution could not prove the Fox crimes beyond a reasonable doubt. In addition, a jury determining penalty would not have been confronted with a multiple-murder special circumstance, another weighty factor in aggravation. Under these circumstances, I find it reasonably possible that the error in failing to sever affected the penalty verdict.
I also disagree with the majority‘s analysis of the claim that
I.
As the majority point out, the primary factor a trial court should use to determine whether to sever offenses of the same class is whether evidence of one offense would be admissible under
In the present case, the dissimilarities between the offenses are far more numerous and striking than the similarities: the Schatz case involved a nighttime entry by two men into a trailer where they beat the two residents with a hammer; Fox involved a daytime bare-handed assault on a woman outside her residence. The trial court ultimately came to the same conclusion, and determined that there was insufficient similarity between the crimes to permit an inference as to identity of the perpetrator. For this reason the court refused the district attorney‘s request that the jury be instructed that it could use the similarity of the two crimes to establish identity of the perpetrator.
As the majority acknowledge, the trial court should have determined at the time of the severance motion that the two crimes were not cross-admissible, and then decided whether the likelihood that the joint trial would prejudice the defendant was sufficient to outweigh the state‘s interest in joinder. Although lack of cross-admissibility and the existence of capital charges do not alone necessarily establish the clear prejudice necessary to require severance (People v. Balderas (1985) 41 Cal.3d 144, 173 [222 Cal.Rptr. 184, 711 P.2d 480]), there was more here to demonstrate the prejudice inherent in trying these cases together. Not only one, but both cases involved capital charges. Since at the time of the motion, the evidence of defendant‘s participation in the Fox murder was limited to the discovery near the body of some sunglasses marked with his fingerprint, it should have been clear that trial of the Fox and Schatz cases together would be unduly prejudicial as to the far weaker Fox counts. In the Schatz case, the prosecution had fingerprints and palm prints identified as defendant‘s, and more importantly, defendant‘s confession. There was a strong possibility that the jury would use the Schatz offenses to show defendant‘s propensity to rob and murder, and thus to support the inference that he was the killer in the Fox crimes. Further, as defendant argued at the time of the motion, there had been considerable publicity about the Schatz crimes, which involved a well-known member of the community, and this could spillover to affect the Fox case. Finally, the nature of the crimеs, involving senseless brutality against older, helpless victims, was inherently inflammatory. Under these circumstances, I think it was an abuse of discretion to deny the severance motion.
The error in refusing to sever was prejudicial as to the verdict on the weaker Fox counts. At a separate trial, the only admissible evidence of guilt would have been strongly controverted evidence as to the identity of the fingerprint, and highly equivocal evidence that defendant had been seen in a
II.
In argument at the penalty phase, the prosecutor stressed the circumstances of the charged crimes as a major factor in aggravation. Understandably, he dwelt upon the age, frailty and vulnerability of Mrs. Fox. He argued that her murder three days after the Schatz murder showed that defendant had no remorse for his earlier crimes, and asked the jury to agree with him that these multiple murders were of the kind that “we, as a society, must condemn with every ounce of energy that we have.” Evidence of the Fox crimes was thus central to the prosecutor‘s plea for the death penalty in this case.
The defendant presented a sympathetic mitigating picture through the testimony of his parents, friends and neighbors, who portrayed him as an agreeable but alienated youth. A clinical psychologist testified that defendant was bordеrline defective in intelligence, and a clinical neuropsychologist testified that defendant had moderate organic brain damage.
In contrast, the prosecutor drew the picture of a remorseless multiple murderer already convicted by the jury of two murders. Had the Fox and Schatz cases been severed, however, and had the jury heard the evidence of the Fox crimes for the first time at the penalty phase of trial, their judgment as to defendant‘s guilt of the Fox crimes would not be so predictable. After all, the only evidence to connect defendant to the Fox crimes was a highly controverted fingerprint on a pair of sunglasses found next to the body, the evidence he had been seen looking at the victim‘s house weeks before the crime, and the fact that he lived not too far away and was familiar with the area where the victim‘s car was abandoned. In my view, the importance of the Fox crimes to the prosecutor‘s plea for the death penalty, in addition to the reasonable possibility that the jury would have rejected the Fox crimes had they heard evidence of them for the first time at the penalty phase, and the fact that they would not have been confronted with a multiple-murder special circumstance to consider in aggravation, made the court‘s error in denying the severance motion prejudicial to the penalty verdict. The jury may also have overcounted the felony-murder special circumstances in aggravation, in violation of the plurality view in Harris, supra, 36 Cal.3d 36.
Mosk, J., concurred.
Appellant‘s petition for a rehearing was denied December 15, 1988. Mosk, J., was of the opinion that the petition should be granted.
Notes
“The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 [now 17] nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.”