*1 Dec. S032736. 2002.] [No. PEOPLE, Plaintiff Respondent,
THE BOYETTE, Defendant Appellant. MAURICE *19 Counsel Coffin, Defender, S. State
Lynne Public under appointment by Supreme Court, Chavez, R. Defender; State Audrey Deputy Public Law Offices of Coffin & Love and Andrew S. Love for Defendant and Appellant. General, Druliner, Bill Lockyer, Attorney David P. Attorney Chief Assistant General, Bass, General, A. Ronald Assistant A. Attorney Catherine Rivlin Saal, General, and Christina Vom Deputy Attorneys for Plaintiff and Respondent.
Opinion WERDEGAR, J. was in Maurice Boyetteconvicted 1993 in Alameda Court of the County first murders of Carter Superior degree and Gary Code, 187; Annette Devallier. all (Pen. further references are to statutory § this code unless otherwise The also a indicated.) jury sustained special murder multiple a defendant committed allegation
circumstance was that defendant 190.2, allegations and enhancement (a)(3)) subd. (§ the murders of used, the commission a firearm in with, and armed also convicted defendant 12022.5, jury subd. (a)). subd. (a), (§§ 25, 1993, On March (§ 12021.) a firearm. a in of of felon being possession 190.1 (§ death law. penalty under the 1978 set the death penalty the jury 1239, subd. (§ (b).) is automatic. et This seq.) appeal judgment we affirm claims raised on considering appeal, After entirety. its Phase
I. Guilt Facts
A.
1. The Murders Johnson, who Oakland, California. a dealer in drug Antoine Johnson was defendant, befriended vision in his other glass eye, one and eye impaired had Johnson a house old homeless. Defendant lived with years then 19 and dealers, and as of Johnson’s a man both knew one “Bishop,” 14th Street with 23, 1992, of rock cocaine. On May Bishop habitual user Guillory, Donald Guillory older model Lincoln Continental. yellow, had use of tan or some the car that run errands. day borrowed Street, house at 2501 Cole Cook, lived Kenya girlfriend, Lita Johnson’s cash and its sold drugs kept notorious for Johnson drug activity. sister, lived Banks, also Cole house. Jasmeen Cook’s at the Street weapons Surrell, Carter house, Gary did defendant’s mother. Victim at the as Marcia Annette with his victim girlfriend, sometimes at the Cole Street house stayed Surrell, and Devallier were addicts. drug Devallier. Carter him that Carter and informed 1992, Cook Johnson May telephoned On $1,000 from the house. $3,500 cash stolen rock cocaine had worth 5:00 defendant p.m., to the 14th Street house around returned Guillory When to drive Guillory front Johnson asked were on the waiting steps. and Johnson and he agreed. to the Cole Street house them house, told to wait in Guillory Street arrived at Cole they When nearly because was the stairs car. Defendant had to Johnson help up the house time, emerged from and Cook After a short blind. Defendant told car. them in the trunk clothing bags put carrying and then sat on a chair and he He complied. come into the house Guillory to *21 moved to a couch Johnson’s Johnson was on a sofa request. sitting long Defendant, and had hidden behind him. handgun Cook and Jasmeen Banks entered and sat down. felt tension air Guillory in the and asked what they were doing. Johnson told him were they waiting someone. sat group waited; and no one spoke.
Later that and evening, Carter Devallier at the arrived house. Upon seeing room, asked, in the Carter everyone living “What’s Johnson up?” replied, at?” my answer, “Where’s stuff for an waiting Without Johnson produced and fired four shots in handgun Carter, Carter’s direction. who about was Johnson, four feet from grabbed side and fell. and up Guillory jumped door, tried flee the Devallier, out back but Meanwhile, found it locked. started, who had been in the when apparently the entry shooting started Carter down the and the help stairs out of house. looked back and Guillory saw defendant from grab gun Johnson “Give me man.” say, gun,
Defendant outside ran with the Devallier was gun. Carter dragging away house, from the but him and ran when she saw defendant. Defend- dropped ant caught her in the street. She “Please, turned face him and pleaded, don’t do it.” Defendant shot her twice in the face from close range, killing her these instantly. heard two shots as he was Guillory leaving the house. He then heard two more shots and saw defendant standing body. over Carter’s Defendant shot apparently Carter the head as he there. lay
Cook Johnson out of the helped house and into the car. Defendant and Guillory then into the got car. was so what unnerved he had Guillory by just witnessed that he had trouble car. became starting Everyone angry, Johnson slapped Guillory’s better, head and said if he did not “next drive bullet” would be for him. started the Guillory eventually car drove away. Street, drive During back house on 14th Bishop’s Johnson asked about Devallier and defendant she “gone.” house, said was at the Upon arriving Johnson and defendant told “You don’t know didn’t Guillory, nothing, you do nothing, just Later, mouth keep your shut.” overheard Johnson Guillory and defendant tell “We him.” smoked Bishop,
Police to the scene and responded found Carter’s on the sidewalk body and Devallier’s body the street. The front door to the Cole Street house but the back door was Both open locked. a television and the were dryer turned on. Police found shell casings five in the room and seven in living front house. They were Winchester nine-millimeter and were casings all fired from the same Glock gun, Luger nine-millimeter semiautomatic room, the bullet holes pistol. in the determined that Analyzing living police trajectories of bullets were consistent with been fired having someone sofa. sitting on long *22 determined Deval- the bodies. He Iocco, examined a pathologist,
Dr. John bullets, which shot would either of face with two had shot in the lier been times, the shot in the only but eight been shot been fatal. Carter had have chest, arms, (in other bullet wounds and fatal. The disabling head was cocaine in him. Iocco found not have immobilized and would legs) abdomen blood. Carter’s and Devallier’s both after street, that sometime confirmed Brooks, a across neighbor
David house. of the Cole Street in front he saw people struggling 11:00 p.m., at a range a at house and fired gun point-blank came out of the Someone a had went to woman who then gunman on the sidewalk. The lying male knees when was on her hands and the street. She crawled to middle of identifications, any too dark to make positive shot her. It was gunman across the Martin was a similar to defendant’s. Greg but killer had build American car He saw a large heard around 11:25 p.m. street and gunshots later, the car was A few minutes in front of the Cole Street house. parked gone. later, of cars with Bishop’s few found himself in another days Guillory
A about nothing that he “better not say defendant. Defendant warned [the talked, next.” he be that if “would Guillory threatened murders]” Defendant also told him that if he kill he would also jail, was sent Guillory’s family.
2. Investigation 3, 1992, anonymous June Kozicki had received Sergeant Before David at Street that the Cole calls four were telephone indicating people present Johnson, defendant, at Antoine Jasmeen house the time of the murders: all messages left four and Kenya Banks and Lita Kozicki Sergeant Cook. contacted contact June defendant and Johnson they asked him. On came to him. Defendant Kozicki and made Sergeant speak appointments a rights,1 gave on June his Miranda police station waived night he house recorded statement. He admitted was the Cole Street addition, dealer Johnson, In a murders, drug as Banks and Cook. were know, friends, did not man defendant “Dee” and one Dee’s nicknamed had said, Earlier, bragging he had heard Carter also were there. Johnson had Dee. claimed $3,500 drugs from Defendant stolen worth kill his friend but he saw Dee and shot at Carter fired only single Carter and Devallier. came in defendant. Johnson statement, this released
After he gave
police
similar statement
gave
police.
the next
day
694, 10 A.L.R.3d
16 L.Ed.2d
(1966)
After police released defendant and Sergeant Kozicki received more anonymous calls. The callers that telephone stated should police not have released defendant and Johnson since were they for responsible that also killings; had been Guillory and served present as getaway driver; and that by releasing Johnson, defendant and life was Guillory’s now in danger. Sergeant Kozicki 25, 1992, interviewed on June he Guillory and denied of the any knowledge When killings. informed that defendant and Johnson had been released and that callers anonymous had said Guillory’s life was in danger, admitted at Guillory the scene and being seeing Johnson and defendant shoot the victims. 30, 1992, July defendant,
On police arrested and Johnson Cook the 14th Street house. (Cook was later Defendant his released.) again waived Miranda and two rights gave statements 30th This taped (the July time he statements). admitted he had to the gone Cole Street house with and Johnson Guillory, that him, Johnson believed Carter had stolen from that Cook Johnson a gave Glock rounds, nine-millimeter held that fired pistol Johnson several shots at Carter and then gave gun defendant the “go get girl,” that he shot Devallier in the shoot, head after she him not to begged and that when he car, walked back to in the get Carter—lying on ground—suddenly his so grabbed leg he shot and killed claimed him defendant he (although shot Carter stomach and not the head). Defendant admitted he killed Devallier, but insisted that said, Johnson had directed him to do so when he get the “go Defendant also admitted girl.” Carter as he on the shooting lay Defendant ground. confessed that Johnson had invented the story Dee Thomas was the killer.
Defendant and Johnson were both charged with Carter and murdering Devallier. The trial severance, court granted Johnson’s motion and eventually pleaded guilty to attempted premeditated murder and was sen- tenced to trial, life At prison. defendant claimed his hearing suppression and his 30th testimony July statements to were false that he and had police made them because he was afraid of his 4th July Johnson. Between June both had been threatened statements, family he and his he claimed 30th the Cole mother from he had to move his He claimed and Thomas. Johnson of the threats. home as result Street to answer and refused became uncooperative some defendant
At point, his June counsel, stated with consulting After further questions. confess murder correct, that he would rather but 4th statement bring family tell the truth about Thomas the death than penalty face harm’s way. into *24 Discussion
B. Hearing
1. The Pretrial Suppression the 30th July to the admission of challenges a number of Defendant raises moved before the victims. He shooting in he confessed to statements which the in a litigated hearing. issue pretrial trial to these statements and suppress for the motion, prosecution way The trial court denied the opening introduce the statements at trial.
a. Facts 25, 1993. January on was held hearing suppress The on motion he with defendant arranged speak David Kozicki testified that Sergeant to the homicides, defendant came police the Carter-Devallier and about he defendant the 4, 1992. Kozicki testified read station on June voluntarily Police by from a form Oakland standard Miranda warning provided and to talk to he his wished rights stated understood Defendant Department. was Kozicki’s Defendant the waiver form in police, signing presence. his his Defendant waived rights. and to understand cooperative appeared a.m., whereupon they at interviewed until 10:45 9:38 a.m. and was rights At turned on tape 11:07 a.m. some Kozicki point, took break until re-Mirandized the interview. Defendant was began recording recorder and the Cole admitted he was at on Defendant rights tape. waived again he saw Dee Thomas and claimed night house on the murders Street defendant help Kozicki denied promising the shootings. Sergeant commit of the The tape in evidence Johnson. getting against if he assisted police court. for the trial 4th interview was played June on warrants for defendant search arrest Kozicki obtained Sergeant have and aunt to defendant grandmother 28th and asked defendant’s July July 12:30 30th Kozicki around p.m. him. contacted contact Defendant for interview. to the station another police to return arrangements and made Police did not wait and took defendant with Antoine (along Johnson and Lita Kenya into Cook) custody around 4:30 that same although p.m. day, they did not inform defendant he was under arrest. The interrogation again room, took police place department interview Kozicki Sergeant again admonished defendant of his waived, Miranda which rights, defendant same, waiver form. Defendant’s “was signing demeanor he basically The cooperative.” interview began around 9:00 and Kozicki p.m., began taping interview 9:54 In this p.m. defendant admitted his interrogation, guilt. Kozicki denied telling defendant he could if go gave home He statement. also denied telling were police interested primarily in Johnson. When asked whether defendant a little . . . slow “seem[ed] mentally,” Kozicki in the Sergeant replied negative. tape this July 30th interview was played for trial court.
A second was made tape recording after the first immediately July 30th statement in which defendant again admitted his In this second complicity. recording, defendant did not mention Johnson name. This was made tape use case defendant and Johnson were tried together. (See Bruton v. United States (1968) 391 U.S. S.Ct. 20 L.Ed.2d *25 476]; People Aranda 63 Cal.2d 407 P.2d Cal.Rptr. 265].) Thiem, Brian who was also
Sergeant of the interro- present during parts gations, testified the hearing at and confirmed that defendant had waived 4, 1992, Miranda June rights on and had no those problem understanding Before rights. interview, the July again 30th waived his Miranda rights.
Defendant also testified at the He stated he suppression hearing. was 19 years old the time of the and had as far interrogations gone as the 10th in school. grade write, When asked whether answered, he could read and he “somewhat.” He that he confirmed had to gone station on June 4th police Kozicki; to with speak Sergeant that he was in a windowless inter- placed room; view him, and that Kozicki was not “nice” to he although felt free released, leave. He was but on 30th took him July with police (along Johnson into did Cook) custody and not tell him was he immediately handcuffed, under arrest. He was but the cuffs were removed he shortly after was in the room. placed interview defendant,
According later, about an hour Sergeant Kozicki appeared him Johnson in the pressured crimes. Defendant testified implicate he when an Kozicki attorney, merely told him that the district requested wished to him attorney and then left room. speak No was attorney him and told returned later that Kozicki testified Defendant forthcoming. murders, free to he would be Street in the Cole he Johnson that if implicated did him, that if he saying threatened testified that Kozicki also go. Defendant again. grandmother mother and unable to see his he be would cooperate, waivers, following colloquy of the Miranda to the Returning question and defendant: defense counsel occurred between waiver, right? Miranda gave you “Q. right. They All Yes. “A. that? Did understand
“Q. you
“A. A little. didn’t understand about it? What
“Q. you silent, I understand I remain know, You the—he said had right “A. one, know, I asked for he I a lawyer, you But then when asked for that. [(cid:127)[[] need it. Well, didn’t you really said: He tell didn’t need it?
“Q. you why you to let me going if [Johnson], “A. He said because I told Antoine go. statement, Now, right? is that him
“Q. you gave *26 “A. Yes. statement, to would you get go him a thought gave And if
“Q. you you home?
“A. Yes.” that that if he confessed
Later, that defendant testified Kozicki promised him. The victims, would release him Kozicki Johnson had made shoot on the admission that with defendant’s asked how was consistent talking. Defendant them from prevent that had killed the victims he tape that. say had told him to that Kozicki replied trial court then interceded: The statement that second said in You mean everything you
“THE COURT: ahead of you told to . . Mr. Johnson was . and about . . . about yourself Kozicki? time by Sergeant
“THE WITNESS: Yes.
“THE COURT: How did it take long you memorize what he wanted you say?
“THE WITNESS: He was said it took saying—he me—it an hour. Me and him stayed in the room for about minutes to an hour.
“THE COURT: You memorized it in an hour? “THE WITNESS: No. of the Some I made things myself. up “THE COURT: you Then didn’t tell everything say?
“THE Not WITNESS: everything. “THE COURT: There’s . that’s . . nothing truth actually in. second statement?
“THE Some WITNESS: things. Well,
“THE COURT: what? “THE That WITNESS: I did shoot I Gary [Carter], but didn’t shoot the girl.”
After hearing counsel, testimony argument from the trial court motion, denied defendant’s suppression explaining: Court makes the “[The] that the finding Miranda warnings waiver were He sufficient. more; Mirandized least three statements, times and That the [^|] of the purposes hearing, the tape recordings with the together transcriptions will be admitted into evidence . . .. The Court would find that the ffl] were statements all free and there is no constitutional voluntary, violation of statements, rights and that the each of them are ... admissible. [^[] Court, effect, finds the defendant is not a as credible witness to the statements, based own three upon testimony statements.”
b. involuntariness Alleged first
Defendant contends his 30th July statements were involuntary immature, because he was young and had finished the ninth only grade, and was unfamiliar with the argues He legal system. used police deceptive to coerce him to confess. with "the practices agree We that record respondent does not support these claims.
411
I,
and article
to
federal Constitution
Amendment
“The Fourteenth
a
from using
Constitution bar
15,
prosecution
of the state
section
re
Constitution
The federal
confession.
defendant’s involuntary
[Citation.]
evidence, that
establish,
a
of the
by preponderance
prosecution
quires
true
same is now
voluntary.
a
confession was
defendant’s
[Citation.]
the state Constitution
a
of an amendment to
under California law as
result
Const., art.
Cal.
(See
voter initiative.
enacted as
of
Proposition
part
law, courts
both
and federal
I, 28,
Under
state
subd. (d); ...)...
§
fl[]
of a
the voluntariness
test to determine
‘totality of circumstances’
apply
‘ “the crucial
to be considered are
the factors
Among
confession. [Citations.]
length
interrogation
[citation];
element of
coercion
police
[cita
as “the defendant’s
its
its
as well
tion];
[citation];
continuity”
location
[citation]; and
[citation];
condition
maturity [citation];
physical
education
’
as to the
findings
the trial court’s
mental health.”
On appeal,
[Citation.]
by
are
if
sub
the confession
surrounding
upheld
supported
circumstances
of the
evidence,
finding
but the trial court’s
as
the voluntariness
stantial
In determining
is
review.
confession
subject
independent
[Citations.]
is whether defendant’s
a confession was voluntary,
question
whether
‘[t]he
will was overborne.’
to confess was not
free” because his
“essentially
choice
v. Massie
19 Cal.4th
(1998)
[79
[Citation.]”
816,
Although confess, he identifies erce him to the only allegedly deceptive practice him into upon taking Kozicki’s failure to inform him Sergeant immediately as had an arrest warrant him custody July naming that obtained police not in the murders. Defendant does how explain Cole Street suspect his to disclose were focus they voluntariness of confession required police voluntary him as a A defendant’s Miranda waiver is ing on criminal suspect. the crimes about which even if fail inform the defendant all police be v. 479 U.S. S.Ct. might questioned. (Colorado Spring [107 not that an individual 93 L.Ed.2d valid waiver does require 954].) “[A] all his decision or infor making be informed all information ‘useful’ in . . . his decision to confess.’ mation ‘might ‘[W]e affec[t] [Citation.] a suspect have never read the Constitution to require police supply deciding his self-interest in with a flow of information to him calibrate help Here, the additional whether to or stand his rights.’ speak [Citation.] waiver, its a Miranda information could affect the wisdom of only at nature.” 576-577 S.Ct. essentially voluntary knowing (Id. pp. waiver As the court found the Miranda 859], omitted.) high concerning fn. p. to inform defend we find Kozicki’s failure Sergeant Colorado Spring, not render all have been useful him did might ant of the information that statements involuntary. subsequent *28 Defendant also the fact of his highlights his lack of youth, educational achievement, his modest of level and his literacy, with the unfamiliarity as legal system evidence that his confession involuntary. was these Although are factors a court should consider when the voluntariness of a evaluating confession, the record does even not hint that these factors into came play this case. For not defendant does he example, failed understand allege or Moreover, Kozicki’s proceedings Sergeant statements. given defendant’s convictions, prior felony we cannot he conclude was unfamiliar with the addition, In legal system. both Sergeants Kozicki and Thiem testified defend- ant understood his rights, Kozicki testified defendant not did seem slow. is mentally There thus substantial evidence trial court’s supporting that, decision defendant’s despite age, educational level and his maturity, 30th were July statements voluntary.
Defendant finally July contends his 30th statements were involuntary because were induced they of by improper promises A leniency. promise an accused he that will he should confess enjoy leniency obviously impli cates the voluntariness of any resulting confession. v. Williams (People (1997) Cal.4th 660-661 941 P.2d 752].) Although defendant that testified let Sergeant Kozicki told him he would him free go should he confess and Johnson, the ex implicate trial court pressly found defendant was not a credible witness. As trial court able was to observe defendant testify listen tapes defendant’s statements, we find no reason doubt the soundness of the trial court’s ruling made no police improper leniency defendant. promises independent review of the Upon totality of circumstances (People Massie, 19 Cal.4th at we supra, conclude p. 576), defendant’s confession voluntary. was
c. Miranda Alleged violation
Defendant makes claim perfunctory that admission of the 30th July statements Miranda, violated his under rights 436. supra, U.S. Both Kozicki and Thiem Sergeants affirmed the record that defendant had been informed rights had waived them. The tape recording also indicated defendant had waived his rights. Although defendant testified refused, asked for an and was the trial court attorney found he credible witness. “When a trial reviewing court’s decision on a motion that a statement was collected in violation of the rights defendant’s under Miranda, 384 U.S. we defer to supra, the trial court’s resolution of facts, witnesses, disputed including credibility of if that resolution supported by substantial evidence.” v. Weaver Cal.4th *29 find such substan- We (Weaver).) P.3d 103] officers, ability in the trial court’s of the testimony evidence the sworn
tial and in the court’s testifying, defendant while the demeanor of observe the recordings. tape his waiving rights to listen to defendant ability collected in were that his statements his claim we reject Accordingly, violation of Miranda. his rights
d. constitutional violation Alleged of above, hearing. the suppression testified at As noted defendant defendant, defendant admitted the cross-examination During prosecutor’s he Thomas he claimed saw Dee in the June 4th statement when he had lied lied in the first also claimed he a friend commit the crimes. Defendant that he himself principally respon he stated was 30th statement when July he essen statement made sible, had in the second 30th when July lied the Instead, took for responsibility the he testified he same statement. tially he be free to leave if told him he would because Kozicki shootings Sergeant several Defense counsel objected Johnson. admitted guilt implicated the of defendant’s times, went to content the arguing prosecutor’s questions overruled the objec The trial court statements and not their voluntariness. defendant’s tions, credibility. were relevant to ruling questions were be Defendant contends the prosecutor’s improper now questions his elicited irrelevant testimony, went direct beyond scope cause they not their the content of his statements and information into delving voluntariness, free self-incrimina right his to be of compelled and violated to the United States tion under the Fifth and Fourteenth Amendments threshold, contend defendant failed At the the People Constitution. them for review.2 on these and thus did appellate object grounds preserve off by several that were cut Defense counsel made disagree: objections We of his fully grounds the trial court before counsel could articulate was of a concern that the spoke prosecutor questioning Counsel objection. rather than their 30th statements July the content of defendant’s about and the voluntariness, cross-examination a clear reference to scope addition, counsel twice mentioned elicited. In relevance of evidence to make admis defendant attempting get concern that the was objection of counsel’s sions, which we discern the basis may from objections These self-incrimination. against compelled defendant’s right issue,” but “acknowledges preserve failed to ... he People 2The contend defendant constitutionally ineffective merely argues find defense counsel were we should objection an these fully articulate properly failed or [on extent counsel “[t]o the issue added.) defendant does not concede that forfeited grounds].” (Italics We find appeal.
were to statement, questions June 4th but concerning counsel made a continuing as objection questioning turned July two 30th statements. *30 the record not Although clear, we crystal conclude these matters were adequately preserved appeal. merits,
Turning to the agree we with the trial court that defendant’s at in was issue the credibility he suppression hearing could be properly with impeached information that he had lied in all three of his recorded statements. contention, to defendant’s Contrary whether or not his 30th July statements were coerced was the “sole issue at the suppression hearing.” In voluntariness, addition the to of question the court trial was to required on rule whether Miranda, defendant was afforded rights his under 384 supra, U.S. 436. Because defendant claimed Sergeant Kozicki had him ignored when invoked his to an right whereas both Kozicki and attorney, Sergeant Thiem testified defendant had waived his voluntarily defendant’s rights, credibility directly. “The implicated of a witness be credibility may with challenged evidence of statements the prior by witness that are incon sistent with the witness’s at the trial.” testimony Price 1 (People (1991) 324, 106, Cal.4th 474 Cal.Rptr.2d Code, 821 P.2d see 610]; also Evid. [3 780, subds. (h) & (k).)3 § Chambers v.
Citing 410 1038, U.S. 284 35 Mississippi (1973) S.Ct. [93 297], L.Ed.2d defendant contends that although the prosecutor’s questions have been may Code, under the proper Evidence strict of state application evidentiary rules under the may, circumstances, nevertheless violate his rights. constitutional Although defendant is correct in abstract that a state “ unconstitutional, rule still be evidentiary may matter, the general ‘[a]s rules of ordinary evidence do not impermissibly infringe the accused’s ” right present 279, defense.’ v. Jones 17 Cal.4th 305 (1998) [70 793, 949 Cal.Rptr.2d 890], P.2d quoting People v. Hall 41 (1986) Cal.3d 826, 834 112, 718 P.2d see Cal.Rptr. 99]; also People v. Fudge (1994) [226 1075, 7 Cal.4th 36], P.2d and cases cited.) [31 Defendant fails to the relatively routine of explain why practice permitting an adverse party of a with impeach credibility witness falsehoods prior in the same case so somehow falls far from a standard of fundamental fairness that we conclude it may violates defendant’s constitutional rights. issue,
Although defendant’s was at credibility were not entitled People to impeach him his by violating constitutional privilege against compelled provides part: 3Evidence Code section may in court. . . consider in determin “[T]he ing credibility any any tendency witness matter has reason prove disprove or testimony hearing, including truthfulness of his at any but not limited following: . .. [U [H] A“(h) by statement any made him that is with part testimony inconsistent of his at the ... [H] [HI hearing.
“(k) His admission of untruthfulness.” allowing contends that Defendant
self-incrimination. of his and truthfulness the substance into continue her cross-examination his in violation of his to admit statements, guilt he was compelled 30th July statements— Defendant’s disagree. We the Fifth Amendment.4 under rights in the suppres- admissible guilt—were admissions of even if constituted they case-in-chief guilt People’s and not to hearing only, prove sion S.Ct. 390 U.S. 393-394 States trial. v. United (Simmons an limited accused’s immunity5 975-977, protects This 1247].) 19 L.Ed.2d we immunity, this and, in light Fifth Amendment under the rights at the not violated were rights Fifth Amendment conclude defendant’s hearing. *31 consti- questioning claims the prosecutor’s
To the extent defendant also
a fair
to due
rights
process,
his constitutional
misconduct and violated
tuted
States
to the United
his
Amendment
trial,
Eighth
under
rights
they
conclude
were
Constitution,
find
on those
objection
grounds
we
no
140,
54 Cal.3d
191
for
v. Mickle (1991)
not
appeal. (People
preserved
[284
counsel’s
511,
not indicate
814 P.2d
The record does
290].)
Cal.Rptr.
counsel believed
likely
to
on these
most
object
grounds;
in
strategy
failing
the use
set
by
immunity
protected
defendant’s constitutional
were
rights
States,
at
S.Ct.
pages
in
v.
390 U.S.
393-394
forth Simmons United
supra,
[88
not
in which counsel
event,
In
this is
a situation
any
because
pp. 975-977].
we must
object,
reject
could have had no reasonable
for failing
purpose
constitutionally
counsel were
defendant’s further claim that his defense
be raised in
must instead
failing
ineffective for
Such claims
object.
978, 1068-1069
v.
23 Cal.4th
(2000)
collateral
proceeding.
[99
Kraft
264,
15 Cal.4th
1,
68];
5 P.3d
Mendoza Tello (1997)
v.
Cal.Rptr.2d
People
437,
266-268
Defendant Prospective the trial court denied in of the death but was biased favor penalty, and denied his the trial was error ruling Defendant claims court’s challenge. Fifth, Sixth, and Fourteenth Amendments to under the rights Eighth As we Constitution, as constitutional analogs. United States as well state person . . . provides part: “No 4The Fifth Amendment to the United States Constitution ,” against privilege . . This any case to be a witness himself. compelled shall be criminal applicable and thus made states. incorporated into the Amendment Fourteenth 1, 1489, 1493-1494, 653]; Segretti 12 (Malloy Hogan (1964) v. 8 S.Ct. L.Ed.2d 378 U.S. [84 878, 793, 929].) (1976) Cal.Rptr. 544 P.2d v. State Bar 15 Cal.3d 886 [126 testimony proved inconsistent impeach him if his trial 5The statements were admissible Cal.App.3d testimony hearing. (People (1989) Drews 208 suppression with his at the 846].) Cal.Rptr. 1325 [256 the trial court explain, erred by excusing juror, this but the court’s error did not compromise of the so no relief is impartiality jury warranted. outset,
At the contend People defendant failed to the claim preserve because, for he appeal cause, made a although timely for challenge exercised peremptory excuse the challenge objectionable and then juror, exhausted peremptory challenges, did not then dissatisfaction at express composition Weaver, of the jury as selected. eventually (See supra, Cal.4th at Weaver, As in pp. 910-911.) omission, we will not rely this the law was in a state of flux on this at the time defendant’s point trial. People v. Crittenden (Compare 9 Cal.4th (1994) 474, 885 P.2d with dissatisfaction the jury 887] [statement required] with v. Bittaker People 48 Cal.3d 1087-1088 [259 630, 774 P.2d Cal.Rptr. relief could still [suggesting granted be if a 659] defendant could denial of an show impartial jury].)
We stated the law with recently regard to challenges for cause: “The state and federal constitutional of a trial an guarantees impartial jury include the in a right case to a capital whose members jury will not automatically impose murders, death for all penalty but will instead *32 consider and the weigh evidence in mitigating the determining appropriate sentence. be for juror may cause based challenged upon [Citation.] ‘[A] or her views concerning capital only if those views punishment would or “prevent substantially impair” the of the performance juror’s duties as defined by court’s instructions and the juror’s oath.’ If the [Citations.] death is penalty imposed by jury containing even one who juror would vote for the automatically death without penalty considering mitigating evi dence, ‘the State is disentitled to execute the sentence.’ [Citation.]
“Assessing
of
qualifications
jurors
challenged
cause
a matter
falling within
broad
of
discretion
the trial court.
The trial
[Citation.]
court must determine whether the
juror will
prospective
be ‘unable to
the law in the
faithfully
impartially
case.’
A
apply
will
juror
[Citation.]
often
or
give conflicting
answers
his or
confusing
regarding
her impartiality
serve,
or
and the trial
must
capacity
court
weigh
juror’s
responses
whether to
deciding
remove
for cause. The trial
juror
court’s resolution
of these factual matters is
on the
if
binding
appellate court
supported by
substantial evidence.
equivocal or conflicting responses
[Citation.] ‘[W]here
are elicited
regarding
juror’s
the death
prospective
ability
impose
the trial court’s determination as to
of
penalty,
his true state mind is binding
on an
court.
appellate
26 Cal.4th
(Weaver, supra,
[Citations.]’ [Citation.]”
910,
Witt
p.
quoting Wainwright v.
844,
424
(1985)
U.S.
S.Ct.
[105
83 L.Ed.2d
v. Illinois
Morgan
U.S.
841]
2222, 2229-2230,
S.Ct.
Prospective the death indicated that He also the death penalty. in favor” of “strongly was convicted those defendants be automatically imposed should penalty whether he the trial court asked by murder. When committing a multiple in the affirmative. answered he of the death penalty,” in favor “strongly imprison “a of life verdict he could return asked whether court When he it if thought appropriate,” you of parole ment without possibility [the] similarly He did not have be convinced.” “I would replied, probably the death penalty. he impose whether could his answer when asked qualify that, given was “effective” he the death penalty He believed explained inclined he be more “would between two penalties, an “honest choice” he whether would He when asked the death equivocated with go penalty.” been in term, having “Never of a life saying, consideration exclude term he a life whether could situation, impose I When asked have no idea.” to make “Yeah, if there was enough he replied: if he it thought appropriate, I could.” it seem yes, appropriate, affirmed he was The juror then undertook voir dire.
Defense counsel were “open” whether both death,” penalties and when asked “somewhat pro outweighed mitigat- greatly where factors aggravating to him a situation Life ones, for the death penalty. “I would vote ing replied: probably as as the long political lasts parole only without imprisonment possibility then occurred: exchange it The following makes idea.” good climate without life imprisonment possibility “THE You understand COURT: means that? parole is commuted the sentence *33 JUROR Unless
“PROSPECTIVE [K.C.]: Governor. cases. You be aware of some may
“THE COURT: Yes, I am. JUROR “PROSPECTIVE [K.C.]: which he in Sirhan and Manson “THE COURT: Such as Sirhan [case] comes for up parole. No, not— JUROR that’s
“PROSPECTIVE [K.C.]: when the statute didn’t at a time They were convicted “THE COURT: of possibility parole. for life without imprisonment provide to— referring I’m JUROR “PROSPECTIVE [K.C.]: “THE COURT: you Can assume that life without imprisonment possibility of means it what parole says? Well,
“PROSPECTIVE JUROR from in my other experience [K.C.]: no, states where it was it imposed, didn’t. California,
“THE COURT: In can you assume thatl “PROSPECTIVE JUROR Given some in leaders political [K.C.]: of no, state, this I can (Italics added.)
In addition to the of the death question penalty, juror had explained murder, been the victim of an but asserted that attempted would experience not bias him it against defendant because had happened so He also long ago. testified he had a legal son with a and that his problem son’s situation would affect his attention for span defendant’s case. Defense counsel then chal- lenged cause, for juror it, but trial court denied “I think explaining: he’s under qualified Witt, Wainwright supra, U.S. Defendant [v. 412].” later used one of his peremptory challenges to remove Juror Prospective K.C. from the jury. we
Although great deference to the pay decisions of our trial courts in their determinations of whether a can remain juror we prospective impartial, conclude the trial court should have sustained defendant’s challenge cause against this This was not a juror. case which the juror gave answers: He was equivocal in favor of the strongly death and was penalty not shy about expressing that view. He indicated he would apply higher standard would have to be (“I probably convinced”) a life sentence than death, one of and that an offender as (such who more defendant) killed than one victim should receive the death automatically he ad- penalty. Finally, mitted he would not follow an instruction to assume that a sentence life in with no prison meant possibility parole would never prisoner be “ released. Because this juror’s views would have or substan- ‘prevented] tially impaired] his duties as a performance juror accordance with ” Witt, instructions and his oath’ U.S. (Wainwright supra, p. the trial court erred in 424), denying defendant’s for cause. challenge *34 Because defendant removed the Juror K.C. from a Prospective jury using however, the peremptory challenge, never served the and the juror on jury of defendant’s impartiality was not undermined the trial jury by court’s error. Defendant’s is thus reduced a claim argument to that the trial court’s error forced him to use one his of peremptory challenges, thereby reducing the number he had on hand later in trial.
419
if the
that even
well settled
“It is
this theory.
is not warranted on
Relief
cause,
a
for
juror
remove
motion to
a defendant’s
court erred in denying
trial
jurors
if
of the prospective
harmless
that error will be considered
‘[n]one
his
sat on
jury.’
actually
objectionable
[Citations.]
whom defendant found
a
constitutes
challenge
the loss of a peremptory
the notion that
reject
‘[W]e
(People
jury.’
an
right
impartial
violation of the constitutional
[Citation.]”
636,
574],
P.2d
920,
897
Cal.Rptr.2d
v. Hawkins
10 Cal.4th
939
(1995)
[42
82, 89-91
23 Cal.4th
(2000)
Blakeley
in
v.
People
overruled on another point
did not
Furthermore,
express
defendant
451,
675].)
999 P.2d
Cal.Rptr.2d
[96
to find
and,
decline
we
although
as constituted
with the jury
dissatisfaction
determining
is relevant to
result, that omission
he
the issue as a
forfeited
To the extent
trial court’s error.
he
by
whether was prejudiced
his “belated
of
jury,
with the composition
he was
suggests
unhappy
now
Consequently,
of
with
jury
speculative.
recitation
dissatisfaction
for
challenges
his
the denial of
by
to demonstrate that he was harmed
fails
702,
1183,
1211
3 Cal.4th
cause.”
v. Johnson (1992)
[14
In an right impartial his constitutional for cause did not violate challenge jury.6
3. Wheeler Error Alleged three African-American excused Defendant next claims prosecutor under v. Wheeler of his rights People women from the violation jury P.2d (Wheeler). 22 Cal.3d (1978) Cal.Rptr. 748] [148 “ aby of challenges ‘In ... held that use peremptory we [Wheeler] membership on the basis of group to strike jurors prospective a from a drawn by jury of a criminal defendant to trial violates right I, section of the under article community cross-section representative (1986) v. Kentucky in Batson Subsequently, California Constitution. a standard adhere to consistent additionally the trial court’s “failure to 6 Defendant claims by right created state law arbitrarily him of a qualification jurors” deprived Oklahoma (Hicks process. 447 U.S. right due [100 violation of his federal Hicks, Supreme States Court 175].) disagree. In the United 65 L.Ed.2d We S.Ct. rights a procedural at certain guaranteeing a criminal defendant explained that state law liberty interest may give rise constitutionally required, sentencing hearing, even if not at (Id. p. 346 S.Ct. by process clause. at against arbitrary deprivation the due protected necessity having our trial courts 2229-2230].) how the pp. explain Defendant does equivalent of credibility willingness by the law is the juror’s to abide determine a Weaver, supra, 26 Cal.4th pp. procedural right (See in state law. guarantee of a based legal present failure Hicks due to the defendant’s [rejecting a claim based 986-987 trial courts into contrary rulings all our holding would convert incorrect argument].) A reading of Hicks. reject error. We thus constitutional *35 79, U.S. 84-89 79-83, L.Ed.2d 106 S.Ct. ... the United [90 1712] States Court held that Supreme violates, alia, such a inter practice defendant’s right of the equal protection laws under the Fourteenth Amendment to the United States . Constitution. . .’” v. Catlin (2001) 26 Cal.4th 26 P.3d 357].)
a. Facts
Defendant focuses on three prospective jurors. Prospective Juror V.F. In her stated jury questionnaire, V.F. she was “neutral” about the death would vote in of penalty, favor an initiative creating death California, in and if she penalty found herself on the jury would not vote for or it. automatically She wrote that the against of purpose the death was penalty remove that person from earth so that he/she “[t]o cannot commit other crimes and to any make statement to all—Commit a Crime must be you to some punished In degree.” response question “Overall, in considering issues which general punishment, do think is you for worse she circled “Life in defendant?.” without prison possibility parole.” She it him/her explained: “Because gives to think longer about crime and to themselves it it whether was worth or was there another ask[] answer.” In to the response “Do feel that question you the death sentence is she circled imposed:” “About right.”
During dire, voir she testified she was a Christian but that voting for death would not in penalty get her trouble at her church. She admitted to some confusion over whether life meant with or without but affirmed parole, her belief that life in prison “worse” because the prisoner would know he was in “forever” prison and could be “you tortured that way where you can’t out into get She she society.” affirmed could vote for the death penalty.
Prospective Juror B.W. In her stated jury questionnaire, B.W. she was “moderately favor” of the death would vote in favor an penalty, California, initiative creating a death if penalty she found herself jury would vote for or it. automatically against She wrote that of the death purpose was so “that will never penalty commit that person crime In again.” to the response “Overall, in question considering general issues of which do punishment, you think is worse for a she defendant?.” circled “Death.” She will never again. exist will explained: “They They leave In family friends.” to the question you “Do feel that the response death sentence is she imposed:” circled “Randomly” “Look at explained: death row. have People been You shouldn’t have waiting years. death
421 dire, she could vote she testified voir During death never comes.” row if for the jury. if selected the death penalty
Prospective she was L.D. stated In her jury questionnaire, Juror L.D. of favor an vote in would in favor” of the death penalty, “moderately herself on California, if she found a death penalty creating initiative ato it. against Responding vote for or not automatically would jury she the death penalty, of she asking thought puxpose what question In crimes.” serious committing “I other criminals from think it deters wrote: of “Overall, in issues considering general punish- response question defendant?,” circled “Life in a she ment, do think is worse for which you life I believe “Because without She parole.” explained: prison possibility “Do feel you In to the suffering.” question is a constant response in prison “About right” explained: sentence is she circled that the death imposed:” be into that have to taken things “I think it is about because of all right dire, During sure.” voir a life must be you consideration. When with dealing officer, that she was this reiterated she had a brother who was police juror and that she was capable in favor” of the death penalty, “moderately verdict. a death returning penalty challenges,
After the had exercised of her prosecutor peremptory was reserved until both grounds. on Wheeler The motion objected had their and a was selected. challenges jury sides exhausted peremptory The court then entertained the motion. Defense counsel claimed prosecu- six women from the panel. tor had struck four of the African-American B.W., V.F., Jurors had removed Prospective Specifically, prosecutor still contained two L.D. and G.A.7 The trial court noted that panel facie case has stated: “I don’t think African-American women and prima her attorney been ... I know if district wants explain shown. don’t juror that not have the or not.” The she did challenges prosecutor explained four African- her, that her recollection was that the with but questionnaires is, “lifers,” they were what she called challenged American women she noted some not vote for the also prosecutor could death penalty. African-Americans remained on the jury. motion, “As I don’t think a then denied the I stating: say,
The trial court have to with the district agree facie case has been shown. I would [T|] prima women, that her four Black African-American of the attorney challenges for the of death I who would vote they penalty did believe were persons their answers voir [during based their upon questionnaires dire].”
b. Discussion challenges uses “a presume prosecutor peremptory
We show, bears the burden manner. The defendant constitutional [Citation.] impose penalty. the death Prospective Juror G.A. was reluctant 7 Defendant concedes facie, the prima presence discrimination. purposeful If [Citation.] succeeds, the burden shifts to the to show its absence.” Alvarez Cal.4th 926 P.2d In 365].) *37 bias, order to establish a facie case of a prima must raise the group litigant fashion, feasible, issue a timely make as a record as establish complete that the class, excluded are a persons members of a cognizable and show “ ” likelihood’ rather ‘strong than v. group individual bias. (People Howard 1132, 1 Cal.4th (1992) 268, 1153-1154 824 P.2d Cal.Rptr.2d [5 1315], omitted; Wheeler, italics 22 at supra, Cal.3d p. 280.) give “We great deference to the trial court in distinguishing bona fide reasons from sham excuses.” v. 137, 762, Turner 8 Cal.4th (People (1994) 165 Cal.Rptr.2d [32 521]; Wheeler, 878 P.2d at supra, p. 282.)
The here dispositive is whether defendant a question demonstrated facie case of prima bias. Neither party that the issue group disputes was raised or that timely Moreover, the record is adequate for review. African-American women a class comprise cognizable for Wheelerpurposes 629, is clear. v. 564, Clair 2 Cal.4th (People (1992) 652 828 Cal.Rptr.2d [7 turn, then, P.2d 705].) We to whether defendant a “strong established likelihood” of bias. the three group Although were all jurors question women, African-American defense counsel did not other provide any reason why believed bias motivated the the group prosecutor. trial Although court did not rule on a immediately whether facie had prima been showing made, it nevertheless cases, asked for her reasons. As in other prosecutor hold we this did not moot the of whether question defendant had established a facie prima 701, v. 20 showing. (People Welch Cal.4th 746 (1999) [85 754]; Turner, 976 P.2d v. People 8 Cal.4th supra, p. 166.) indicated she was concerned prosecutor about the jurors’ willingness the death All impose three had penalty. jurors were professed they open voting death impose although none was a penalty, strong supporter Juror V.F. had she penalty. indicated was neutral about the Prospective death Both V.F. and L.D. penalty. Juror Prospective suggested believed they life in awas harsher prison Juror penalty. Prospective B.W. some expressed with the death impatience length of time some inmates penalty, noting on death row. The trial court was spend clearly aware of answers these had on the jurors provided and observed their questionnaires demeanor as testified, they two factors defendant’s undermining claim that court accepted reasons without prosecutor’s reviewing the record. it
Defendant further claims was true three would refuse to jurors for the vote death but neither the nor the trial court penalty, take answers at face required jurors’ value. Although death about the unenthusiastic who were equally that other jurors contends left on the jury the African-Americans and that were not challenged, penalty in a comparative not engage we do more were much pro-death-penalty, Fuentes reasons. stated a prosecutor’s when analysis evaluating P.2d 75].) Cal.Rptr. 714-715 Cal.3d in assess standard wrong trial court used also contends the Defendant He bias. showing group a facie whether he had established ing prima bias, we have held whereas an inference” of such he need “raise only claims Terhune (9th likelihood” Wade v. (See of such bias. strong he must “show the two difference between 2000) [discussing perceived Cir. 202 F.3d California, like ‘strong “in However, have as we standards].) explained, *38 Box 23 Cal.4th (2000) v. ‘a reasonable inference.’” (People lihood’ means Wheeler, 130]; see 1153, 1188, supra, P.3d Cal.Rptr.2d fn. 7 [99 the Moreover, that two even assuming arguendo at 280-281.) Cal.3d pp. inference” standard were different, and that the “reasonable standards were a defendant had not established lenient, the court’s that ruling finding more facie bias was showing group supportable. prima a facie failed to make prima Because the court’s that defendant ruling trial and is thus substantial evidence by bias is showing supported group deference, claim. entitled to we defendant’s Wheeler deny the Victims 4. Admission Evidence Regarding into evi by admitting next claims trial court erred Defendant from were and testimony of the victims while alive they dence photographs this those He argues relatives them from surviving identifying pictures. guilt, jury assessment of distracted evidence an impartial “prevented and violated from its to decide the appropriate penalty, responsibility [his] law.” under state law and federal constitutional rights father, identify to her Devallier, Annette’s asked Alvarez testified she He did so and also from a taken while she was alive. photograph until a week on Hilton Street living had been at rehabilitation program sister, Carter, identify Gary’s also had Reo before she was killed. The People so and testified he alive. did him from taken while was She photograph not Defendant did at the time he was killed. living victim had been with her When the to the use of the testimony prosecu- to this or object photographs. however, evidence, defendant both into tor later moved to admit photographs of the victims. he to stipulate identity that would objected, explaining that the value objection, The trial “probative court overruled explaining effect.” any prejudicial outweighs [of evidence] were used in the time the Because did not at object photographs defendant Al- witnesses, to the issue for appeal. he failed questioning preserve timely sufficiently was not an objection, objection later raised though preserve issue. The that an requirement objection evidence be made is it timely because important “allows the court to remedy situation before any accrues.” prejudice (People Taylor v. 31 Cal.3d (1982) 64, 645 P.2d Cal.Rptr. 115].) that,
Defendant if contends we find the issue was not preserved we should find that his appeal, counsel were constitutionally ineffective for failing Failure to object. object constitutes rarely ineffec constitutionally tive legal representation Avena 13 Cal.4th 421 [53 301, 916 P.2d but 1000]), assuming the matter was preserved, we would still find no error. relevant Although only evidence is admissible Code, (Evid. state is 350), case required its shorn of prove § “[t]he evidence photographic merely because the agrees awith witness or to a fact.” stipulates 26 Cal.4th (Weaver, supra, at Trial p. 933.) courts have wide discretion such evidence, admitting and we have photographic explained “trial courts should be alert to how on photographs may play emotions, jury’s case, in a especially we capital our trial rely [and] courts to exercise their discretion both to allow the state wisely, fairly its present case as well as to an ensure that accused is with a fair provided (Id. trial an impartial jury.” We have examined the p. 934.) challenged *39 and conclude the photographs trial court did not abuse its broad discretion. evidence of murder victims Photographic while were is alive they inadmissible. necessarily 936, v. (People Smithey (1999) 20 Cal.4th 975 [86 243, 978 P.2d 1171].) Even were we to reach a different conclusion, error any manifestly was harmless in light of evidence strong of guilt, including defendant’s confession. (People v. Watson 46 (1956) 818, Cal.2d 836 P.2d 243].) [299
To the extent defendant that argues admission the photographic evidence violated his federal constitutional to trial, due rights process, fair a reliable determination, penalty freedom from cruel and unusual punish ment, and his to right Oklahoma, due under Hicks v. 447 process U.S. supra, 343, we find those issues were not preserved for because defendant appeal did not at on object trial those Crittenden, v. specific grounds. (People supra, 9 126; Cal.4th at 542, p. People Rogers (1978) Cal.3d 547-548 [146 732, 579 P.2d Cal.Rptr. both to 1048].) “Specificity required enable court to make an informed on the motion or ruling and to enable objection party proffering evidence to cure the defect in the evidence.” (People v. Mattson 802, 50 Cal.3d P.2d Cal.Rptr. 983].)
With to the regard of Alvarez testimony Carter, Devallier and Reo defendant did not at all. he object failed to Accordingly, his preserve to their objections testimony. issue, Even were we to reach both wit nesses an case, refuted of the aspect defense’s defendant’s claim namely, they at the time were house at the Cole Street the victims were living that and admissible. thus relevant was these witnesses testimony killed. The it inflammatory; was that their Moreover, testimony is incorrect instead, find no error. was, factual. We brief and Evidence
5. Restriction on Defense erred in excluding portions next the trial court Defendant claims on either Marcia Surrell Turner, Jackson and Latonya of Earl testimony a small the trial court made As we relevance hearsay grounds. explain, or error, but the error was harmless.
a. Facts His in the crimes. about his involvement Defendant stories gave varying 4, 1992, blamed Ronald “Dee” on June first recorded statement to police 30, 1992, two additional recorded shootings. gave Thomas for On July Carter, statements, insist- though both Devallier and confessing shooting him kill This was contrary Antoine Johnson had directed Devallier. ing On statement, the killings. 4th he had blamed Thomas for his June which a different yet defendant told hearing, January suppression 30th statements was in the two nearly everything July story, claiming of the crime lie, given that he had memorized version simply parroted him Kozicki. by Sergeant June trial, story At defendant took the stand and suggested original evasive, refusing blaming very 4th Thomas was the accurate one. He received both his mother had answer several he and claiming questions, *40 stricken, be he nevertheless his could testimony threats. Warned that entire testified that after eventually giving He refused answer some questions. street and Dee statement, on the got the June 4th word of his statement out that, of a Defendant with explained help Thomas threatened his life. house he mother from the Cole Street named had moved his woman Tanya, to move his had location, he later admitted mother although safer that had Defendant also testified Johnson because house was boarded up. it in defendant was snitch. When him and let be known jail threatened die.” He “They in jail, replied: what to snitches asked happens be to Johnson testimony he that his would reported admitted was worried was in the courtroom. because Johnson’s attorney and disavowed he lied at the hearing Defendant testified had suppression He claimed say. told him what to Sergeant claim that Kozicki had his prior and he was afraid for hearing at the present he lied because Johnson was life. He also testified his statements 30th were all lies. July When asked whether his 4th June statement Dee (blaming truth, was the Thomas) he in the replied affirmative. When asked whether he had said on “everything” true, June evasive, 4th was he turned “I can’t The saying, really say.” following then occurred: colloquy You
“Q. Okay. mentioned that the that took exchange between Dee place went his friend down as: Let seeme the gun, me the give gun. “Is that the truth aor lie?
“A. I’m not going to answer that to the fact I due be a might dead man if I answer.
“Q. A dead man from whom? jail streets, “A. In or on the wherever. . . . fl[] [If] . “Q. . . You say life in your danger because you confessed two murders and you said Antoine basically did the just in shooting [Johnson] the house and did all the you out in the killing streets. No,
“A. that’s not the reason life why my danger. reason why [is] life is my danger is because the first statement.
“Q. Because the first statement? Yes,
“A. it is.
“Q. When blamed you Dee and his friend?
“A. Yes.” Later, the defense called Earl Turner to the Turner stand. testified had with, to, and was a grown up close friend Johnson. He also had known Dee Thomas about two While Defense years. Counsel Cannady question- Turner, ing the following occurred: exchange . . “Q. . Did ever threaten you? [Dee] *41 Yes,
“A. we have into gotten before. arguments And “Q. what was that over? argument
“MS. DRABEC prosecutor]: Objection, irrelevant. [the Sustained. “THE COURT: Honor? your May approach, we
“MR. CANNADY: here, sir. not on trial Mr. Dee is “THE COURT: that, Honor. your I understand “MR. CANNADY: he and question him a relevant Ask No need to approach. “THE COURT: answer.” may to stand, to the
Later, presumably Jackson Latonya called mother, Marcia her help had asked his claim corroborate Jackson to threats of violence. Surrell, house due move from the Cole Street crimes, but when to her home after move testified she had Surrell helped con- . about being . . anything asked Surrell she was whether “indicate[d] hearsay prosecutor’s her trial court sustained safety,” cerned for objection. afternoon, moved the defense rested thereafter. That shortly
The defense Surrell, mother, Marcia had found defendant’s they to reopen, explaining been claim that she had defendant’s and wished call her corroborate a of those house as result and had from the Cole Street threatened moved testimony the relevance of such The trial court threats. questioned court ruled the defense the trial Eventually, discussed the matter. parties threats, to specific could as testify, its case and that Surrell could reopen but that she was afraid of Johnson. defendant’s mother and then and affirmed she was testified
Surrell and had seen him knew Johnson had lived at the Cole Street house. She she house, she a a man named “Dee” visited Asked whether gun. with that was—that two people “There of Dee’s. There was was couple replied: her counsel asked over there.” Defense never their self Dee that came called if she was afraid Johnson.
b. Discussion to due rights process, claims his constitutional
Defendant him, to a reliable defense, against to confront evidence present the trial eviden violated court’s were guilt determination nonarbitrary His Const., 5th, 6th, Amends.) attempt 14th 8th & tiary rulings. (U.S. constitutional ones into evidentiary questions inflate garden-variety of the ordi matter, the ‘[application “As a general unpersuasive. on defendant’s infringe . not impermissibly . . does rules evidence nary *42 428 to a
right present defense.’ Although completely excluding [Citations.] of evidence an accused’s defense level, could rise to this theoretically defense evidence on excluding a minor or not subsidiary does point impair an accused’s due to process right a defense. If present the trial [Citation.] court trial misstepped, court’s was an error ruling of law there merely; ‘[t]he nowas refusal to allow to defense, a present but only rejection [defendant] of some evidence the defense.’ concerning Accordingly, [Citation.] standard of review is that proper announced in People Watson[, v. 46 supra,] 818, , Cal.2d 836 . . . and not the stricter beyond-a-reasonable-doubt stan dard reserved for errors of constitutional dimension v. (Chapman California 18, 710-711, U.S. L.Ed.2d 87 S.Ct. 24 A.L.R.3d 1065]).” (People Fudge, Cal.4th at supra, pp. 1102-1103.) The exclusion of Earl testimony Turner’s concerning subject with, of his “ arguments threats Dee Thomas possible by, was proper. evidence, ‘Relevant evidence’ means evidence including relevant to the of declarant, a witness credibility or hearsay having any reason tendency to or prove fact disprove that is of any disputed deter consequence of mination Code, 210; action.” (Evid. id., see also § [“No § evidence is admissible relevant except Whether or evidence”].) not Thomas had ever threatened Turner had no tendency to whether or not Thomas prove had threatened defendant. the trial Accordingly, court sustained the correctly prosecutor’s relevancy objection. Whether Jackson had heard Latonya defendant’s mother express “
concern for her safety a different requires is analysis. ‘Hearsay evidence’ evidence of a statement that made than other aby witness while at the testifying hearing and that offered to truth of matter prove Code, stated.” (Evid. subd. evidence (a).) sought § elicit from truth, i.e., Jackson was offered arguably for its that Surrell was fact concerned for her This lead safety. would inference that Johnson Dee (or Surrell, had Thomas) actually threatened thereby tending support defendant’s assertion at trial he threatened, and his family were thus he explaining why changed story. Because defendant’s questioning Jackson sought evidence of a statement made Surrell that was for offered truth, its the trial court sustained properly hearsay objection. Even assum erred, ing argument was, the court no resulted. Defendant prejudice course, free ask Surrell herself whether she was concerned for her own Moreover, He did not do safety. so. admitted cross-examination that his mother had moved from the Cole Street house because it had been boarded he had up, (as claimed) because threats. thus find no error We and no prejudice. defendant contends the trial
Finally, court limited his improperly Surrell, of Marcia questioning questioning about threats. prohibiting specific *43 corroborated defendant’s threats would have Evidence specific We agree. threatened, to thus him his been family persuading that he and had testimony to shootings accepting for the from Dee Thomas blaming his change story Moreover, evidence of from for fear of retaliation Johnson. blame himself rule, for such evidence hearsay barred the by threats would not have been or Johnson truth that Thomas not have been offered for its (i.e., would but for a or his against family), intended to retaliate actually (See, the on defendant. the effect of statements different to show purpose: 1670, 1680-1681 Cal.App.3d v. Jackson e.g., People for the nonhearsay purpose of threat admitted [evidence 778] ruling court thus erred in this consciousness of The trial showing guilt].) was not relevant. evidence erred, Defendant was the trial court the error was harmless.
Although Johnson, the ask whether she was afraid of allowed trial court to Surrell by Moreover, story inherently but did not do so. were many changes overwhelming, Guillory’s incredible and the evidence of his from guilt defendant, to David Brooks’s testimony identifying testimony eyewitness victims, of defendant’s build over one of the standing that he saw someone to the scenario defendant’s matching by July the forensic evidence provided that a reasonably 30th statements. thus conclude “it probable We [not] result more to would have been reached in the absence favorable [defendant] Watson, of the error.” 46 Cal.2d 836.) supra, p. Failure Question
6. to Answer Juror’s a case, the the the court received note presentation of defense trial During person from a asked four “How can homeless juror.8 juror questions: such or the court lawyer[s] attorneys] appointed? obtain are private [defense who describe the neighbor up street[,] the lived houses the [Regarding] [H] (sml, over the body size of the he saw street or person standing (near) med, tall. tried also or short or blind lrg) person being t]his what[?] [Is [If] take[,] is he a lie detector [take,] willing Did the on trial or person [If] test[?]” As to the discussed note. jury,
Out of the of the presence parties homelessness, the trial court alleged proposed about defendant’s question business, none of his not answer the “That’s explaining: really question, comment As the second regarding so not on that.” question we’re going Brooks, of the perpetrator, David and his neighbor, description eventually could on a agree parties stipulation jury, appears it the note was sent 8Although defendant the note was from the contends single juror. resolved matter Brooks the stand on by calling rebuttal. Brooks then testified the saw figure he from a distance standing over the body smaller than 300-pound neighbor and “fits into of defend- category” [the] ant’s As to the third physique. trial court question, informed parties *44 that the had been and would be jury instructed that again Johnson would be tried and that it should not itself separately concern with that subject. to the Finally, as fourth the trial question, court that the simply stated of lie question detectors was none of business. jury’s Defendant contends the trial court’s failure to answer any juror’s Sixth, violated questions rights Fifth, his under the and Fourteenth Eighth Amendments to the United States Constitution him of his by depriving rights “to due to a fair trial process, trial, an to a to impartial jury, jury confront him, the witnesses against and to a reliable determination of guilt beyond reliable, individualized, reasonable doubt and a and non-arbitrary and capri- cious determination.” sentencing When trial court its decision proposed not to note, however, to the respond juror’s did not He thus object. and, failed to indeed, the issue for preserve be held have appeal may given to tacit of the trial court’s decision. v. approval (Cf. 32 People Kageler (1973) 738, 746 to Cal.App.3d to trial court’s Cal.Rptr. object [108 235] [failure answer to jury waives claim that the question answer violated 1138].)9 § Defendant argues his counsel were alternatively constitutionally “ ineffective for failing object. order demonstrate ineffec ‘[I]n tive counsel, assistance a defendant must first show counsel’s perfor mance was “deficient” because his fell “representation objective below an standard of reasonableness . . . under prevailing professional norms.” (Strickland v. 668, 674, U.S. Washington 466 687-688 L.Ed.2d (1984) [80 693-694, Second, 104 . S.Ct. . . he .) must also show prejudice 2052] from counsel’s or flowing performance lack thereof. (Strickland, supra, . 691-692 . . pp. .) Prejudice shown when there is a “reasonable prob that, but for ability errors, counsel’s the result unprofessional proceed have ing would been different. A reasonable is a probability probability ’ ” sufficient to undermine confidence in re (In outcome.” Avena (1996) 694, 413, 12 Cal.4th 721 909 P.2d Cal.Rptr.2d 1017].) [49
We defendant’s reject contention that his counsel were ineffective for failing object, because even counsel’s assuming inaction unrea sonable, no 891, resulted. prejudice (See People Padilla 11 Cal.4th (1995) deliberation, provides: jury 9Section 1138 “After the any have retired if there be disagreement testimony, they any between them as to the or if to be point desire informed on arising case, they of law require must the officer Upon to conduct them into court. court, being of, brought into required given presence the information must be in the or after to, counsel, attorney, prosecuting they notice and the defendant or his or after have been strictly called.” section apply jury yet This does not here because the had not commenced its juror when deliberations the trial court received the note at issue. on another 426, 388], point overruled 906 P.2d Cal.Rptr.2d [47 fn. v. Hill 17 Cal.4th People perfor whether counsel’s need not determine P.2d court [appellate 673] if was no mance was deficient there prejudice].) his home- alleged concerning the first argues question Defendant first he was about lying factor in the case. If to his credibility, key lessness went rest of disbelieve the homeless, claims, likely was more jury being however, Surrell, testified, she mother, Marcia When his testimony. a friend that defendant was with status, staying his living explaining clarified him grandmother helped support and that both she defendant’s situa- living reflected defendant’s accurately We this financially. presume *45 the juror’s trial inaction with to regard tion. Failure to to the court’s object thus first was harmless. question above, the the concern over Brooks’s description
As noted juror’s rebuttal the was the witness’s by he saw over clarified standing body person to the to to trial inaction with regard Failure the court’s testimony. object thus also harmless. juror’s second was question Johnson, the was jury to the concern over the fate of Antoine juror’s As and that Johnson would be instructed Johnson’s case had been severed discuss or tried instructed: not specifically separately. jury “[D]o not why consideration as to the other are give any being prosecuted persons or be Just before prosecuted.” in this trial or whether have been will they addition, the commenced, In jury deliberations that instruction was repeated. before, Antoine Johnson has also was instructed: “As I told the trial of you Johnson’s will the trial take Boyette been severed from trial Maurice these after trial We followed instructions. this ends.” assume place jury v. 54 Cal.3d fn. 17 Cal.Rptr. Mickey (1991) (People to the trial court’s inaction P.2d Defense counsel’s failure to 84].) object to the third was thus harmless. regard juror’s question with tests, the lie detector trial with to the concern about Finally, regard juror’s and not provided instructed the to decide the case on the evidence jury court no again, to as evidence.” Once “consider or discuss facts to which there the curious juror we this instruction assume the followed jury evidence. Defense the lack of lie detector abandoned his concern over harmless. object counsel’s failure to was thus to to object no defense counsel’s failure Finding flowing from prejudice note, we juror’s not to to the midtrial trial court’s decision respond object to failing ineffective constitutionally by conclude counsel were not on appeal. and that be held to have forfeited issue may fairly defendant 7. Alleged Prosecutorial Misconduct
As below, more explained fully defendant contends the committed misconduct on numerous occasions closing He during argument. admits, however, that he did not object any these instances of alleged misconduct or that the be request jury admonished. Unless was excused from defendant not objecting, did preserve any of these for objections presentation appeal.
There are two exceptions general forfeiture, rule of and defendant invokes First, them both. argues futility exception applies here. “A defendant will be excused from the necessity of either a timely objection and/or a for admonition if either request would be futile. addition, In failure be request jury admonished does [Citations.] ‘ forfeit issue for if “an appeal admonition would not have cured ’ harm caused the misconduct.” of a Finally, absence [Citations.] for a curative admonition does request not forfeit the if issue ‘the appeal court overrules an immediately objection alleged miscon prosecutorial duct as a consequence] the defendant has no such opportunity make [and Hill, request.’ [Citations.].)” Cal.4th supra, pp. 820-821.)
Defendant claims that several
the
of
trial court’s prior rulings
disagreeing with
by
taken
defense counsel
positions
to
suggest any objection
prosecutorial misconduct
have
would
been futile.
it is
Although
theoretically
a trial
possible
court could be so biased
a defendant—as
against
evidenced
by prior
an
rulings—that
might
court
appellate
reasonably conclude further
futile,
have
objections would
been
such
not the
case here. An objection
and a
for
request
admonition would have allowed the trial court to remedy
any unfairness occasioned
the
by
prosecutor’s argument, avoiding any po
tential harm. We
in the
perceive nothing
record
that an
suggesting
objection
to
of the
of
any
alleged instances misconduct would
been
have
futile. (See
468,
generally People
680,
v. Dennis
17 Cal.4th
(1998)
521
Cal.Rptr.2d
[71
Defendant also argues that the objection an to interposing alleged miscon- duct would have been futile because an called objection would have simply comments, attention to the prosecutor’s improper the harm al- increasing course, done. This ready of would the rule exception, swallow a requiring objection admonition, and timely request for for one runs the risk of always the drawing attention to an line jury’s of improper argument by registering an The mere concern of objection. misconduct highlighting alleged more, objecting, without cannot serve as an rule exception.to general an for requiring objection an admonition. defend- request We conclude ant’s reliance on the be futility exception rejected. must find he we should why more reason familiar) a second (and
As for defend misconduct alleged appeal, of the issue prosecutor’s preserved to have for constitutionally failing ineffective his ant claims counsel were we noted As have for admonitions. timely objections requests made one’s to a level implicating rises object rarely failure mere repeatedly, (1997) v. Williams (People counsel. legal effective right constitutional Here, as 123, explain, we 153, 940 P.2d 710].) Cal.Rptr.2d Cal.4th [66 a of the record was review harmless), exception (which with one small cannot and thus counsel of the prosecutor, no misconduct on part reveals failing object. be faulted credibility in the witnesses
a. Expressing personal
belief
for the
her
credibility
contends the
vouched
prosecutor
Defendant first
for the
vouch
may
personally
witnesses. Not so. Although prosecutor
witness,
is telling
of a
witness
may
argue
credibility
prosecutor
properly
(1993)
of the case.
v. Stansbury
based on the circumstances
truth
756],
846 P.2d
revd.
other
Cal.4th
1059 [17
S.Ct.
Defendant also prosecutor of the no about whereabouts on night sister had motive lie Thomas’s We that this line of shootings. disagree argument suggested prosecutor information and thus constituted vouch- improper undisclosed privy was, instead, based on argument It ing credibility. simply for Thomas’s argued the evidence presented. (For example, inferences from *47 in his own unrelated leniency that no reason to lie to obtain Thomas had case, was his sentence in serving had and already guilty because he pleaded that case.) a called him liar. This was repeatedly
Defendant contends the prosecutor to in urge, colorful a “The permissible argument. prosecutor permitted . credence . . terms, argue are not entitled to that defense witnesses [and] fabricated inference that a defense is on basis from the evidence the of 865, 765, . . 1 Cal.4th 948 Cal.Rptr.2d . .” v. Pinholster (People (1992) [4 concerning the evidence was conflicting 824 Defendant admits P.2d 571].) lied about his argued (e.g., alleged those issues the prosecutor evidence, this the homelessness, from From alleged Johnson). the threats was less than truthful. that defendant argue was thus permitted prosecutor 434
Defendant asserts the that prosecutor his improperly implied testimony corroboration. He also claims the required prosecutor’s argument improperly shifted the of burden to him. We proof disagree. The that argued defendant had when lied he claimed he had been placed protective due custody to threats on his life in In the jail. support, prosecutor argued: “You heard no context, corroboration of that.” Read in the prosecutor was “ merely making the permissible argument defendant had failed ‘to ” introduce material evidence toor call v. logical witnesses’ Fierro (People 173, 1 Cal.4th 213 (1991) P.2d his 1302]) support [3 of story words, threatened in In other being jail. argument prosecutor’s was that defendant’s version of events was less believable there was because no sources, corroboration from other not that the was jury legally prohibited from corroboration, in the of crediting testimony absence or had failed meet a burden of proof.
Defendant argues that prosecutor committed misconduct by courtroom, on his commenting demeanor he had been suggesting affecting attitude to pleasant deceive The jury. prosecutor stated: remorseless, is a v]ery cold-blooded individual .... Remem “[Defendant ber, can be appearances and he’s been very deceiving on He working you. has been on come working you, watching you go, smiling waving when he’s introduced to you. ladies and Appearances, gentlemen, can be very deceiving.” contends,
As defendant comment during guilt phase capital trial on defendant’s courtroom demeanor is v. Heishman improper (People (1988) Cal.3d 753 P.2d Cal.Rptr. 629]) unless such comment is that the simply ignore should a defendant’s demeanor jury v. at (People Stansbury, supra, Cal.4th “In p. 1058). guilt, criminal trials prosecutorial references to a defendant’s nontestifying demeanor or behavior in the courtroom have been on held three Demeanor improper grounds: (1) evidence is it cognizable relevant as bears only of a credibility witness. (2) comment on the prosecutorial infringes defendant’s right not to testify. Consideration defendant’s behavior or demeanor while off the rule stand violates the that criminal conduct cannot be inferred from bad Heishman, character.” supra, p. 197.) case,
In this comments prosecutor’s were To the ambiguous. extent she was simply demeanor, urging jury disregard defendant’s there was no misconduct. To the extent she instead that the suggesting *48 should jury find defendant was based his courtroom de duplicitous meanor, Defendant, course, she committed misconduct. of chose to testify, Moreover, to his reducing any harm Fifth Amendment rights. the prosecu tor’s comment brief was and fleeting, further the of reducing possibility
435 lack of of defendant’s evidence both In of the ample light prejudice. that, even counsel were assuming and we conclude guilt, of credibility ensued. no object, prejudice failing remiss law and b. the Misstating facts by committed misconduct the prosecutor
Defendant next contends for it misconduct the case. is Although and facts of the misstating law Marshall (1996) law v. (People to misstate the applicable prosecutor the facts 347, P.2d or 1280]) Cal.4th [55 no of transgression the record reveals Dennis, Cal.4th at p. 522), supra, argument of For defendant complains prosecutor’s this rule. example, as “guilty was Guillory’s testimony—defendant that—if the believed jury Guillory defendant that Although argues was true. charged.” This essentially he saw victims, testified that Guillory see him shoot the did not actually the shots He then heard and run after victims. grab gun defendant house, he and, later, Cole saw after he from the Street emerged moments defendant, body. Carter’s lifeless The standing over holding gun, still defendant be understood to mean that reasonably may argument prosecutor’s all reasonable testimony if the believed guilty jury Guillory’s drawn inferences therefrom. committed misconduct by also that the argues prosecutor
Defendant and “malice.” We disagree with “cold-bloodedness” equating premeditation told the that jury that the misstated law. She first prosecutor for her begged had shot Devallier twice as she looked him in eye cold-blooded, heinous, so act, “is so that is life. The argued prosecutor, kill, for to kill. . . . is an and the law has word intent such intent intent to kill before And it is called malice. And the laws if have an says you whatever, it act, stabbing, like or you commit the which is pulling trigger is malice murder.” aforethought, you’re called [for] “The law says also in wait was a substitute malice. argued lying heinous, It serious, automatically degree. wait so that it is first lying in is so is second It is a substitution for malice.” degree. never fl|] killing is of misstatement of law. “Murder the unlawful
We no perceive “All murder . subd. aforethought.” (a).) human . . with malice being (§ . or other any . in wait . . by is means of . . lying which perpetrated of the willful, deliberate, ... murder killing kind of and premeditated . . as the functional first . acts degree.” 189.) lying-in-wait (§ “[P]roof deliberation and intent kill.” (People equivalent proof premeditation, 854].) The 589, 614 749 P.2d v. Ruiz 44 Cal.3d Cal.Rptr. circumstances, that, these to kill Devallier under argued prosecutor merely *49 436
defendant must have to do intended so and thus killed with malice afore- the thought. Although argues prosecutor stated that erroneously in wait is a malice lying substitute for (instead and premeditation intent there is no functional these kill), difference in the circumstances: if jury lay found defendant in wait and thus necessarily and intended premeditated the killings, argument that nevertheless malice lacked is—on these event, the any facts—untenable. In trial court instructed the on properly jury law, the and Indeed, we the followed those jury instructions. the presume that, was jury instructed to the extent the law as the trial court given by conflicted with the of the given law as description by attorneys, jury was to follow the court’s instructions.
c. Inflaming jury
Defendant next contends the committed misconduct prosecutor by facts, misstating evidence, on facts not in relying and inflaming generally and passions Thus, fears defendant contends the jury. stated—without any record—that support defendant killed the victims for money, Oakland, are often killed on the people streets of and that one often reads about remorseless kids” “teenage intending kill people. That $3,500 defendant killed two who had stolen worth of people drugs $1,000 Johnson, in cash dealer, from a drug and thus some expected Johnson, remuneration from awas reasonable inference from the evidence. Defendant admitted Johnson had him with food and clothes. provided The balance of the was challenged comments mere rhetoric that not was objectionable.
d. Encouraging jurors holdout to capitulate contends,
Defendant
that the
finally,
prosecutor committed miscon
duct by
holdout
encouraging
jurors
to the
The law
capitulate
majority.
“ ‘
vote,
each juror’s
requires
independent
[ujnanimity obviously requires
that each
must vote
juror
in the
acquiesce
verdict. Acquiescence
because the verdict
been
simply
has
reached
is not an
by
majority
and if
would
independent judgment,
permitted,
undermine
to a
right
unanimous verdict.’”
835,
Gainer
19
Cal.3d
849 [139
861,
997,
P.2d
73],
97 A.L.R.3d
Cal.Rptr.
People v.
quoting
Superior
Court
Cal.2d
(Thomas) (1967)
P.2d
Cal.Rptr.
evidence of guilt quite strong, you if there is one of who can’t see “[a]nd courtroom, this happened what you’re should be abso intelligence [sic] here, insulted all the that’s lutely gone if one can’t see lying you
437 breath, common your think about take that, back, deep a better you[‘d] step the forest are not seeing because you to fellow your jurors, and listen sense shown, As overwhelming.” case. It is trees, can’t see this the if through you majority’s to submit to the holdout jurors did not exhort the prosecutor if had any juror so that views, strong the evidence of argued guilt but sense. The exhortation doubts, their common back use they should step to the meant listen to in this context jurors” “listen to fellow your to find no misconduct. jurors. of one’s fellow We arguments to consider the sum, asking jury and harmless comment In save a trivial his as evidence of off the witness stand courtroom demeanor defendant’s no misconduct. Because we we find which find duplicity, nonprejudicial, to ground- make failing cannot be considered ineffective for defense counsel causing to misconduct to objections less or for make objections failing harm, these claims we further find defendant failed preserve defendant no for appeal.
8. Guilt Phase Instructions at the jury a of the given guilt Defendant contends number instructions Fifth, Sixth, the rights Eighth incorrect and his under were violated phase Constitution. and Fourteenth Amendments to United States a. Reasonable doubt 2.90, instruction on jury
Defendant that CALJIC No. the standard argues it case, is because fails faulty reasonable in this given doubt proof beyond As of reasonable doubt.10 meaning of adequately explain concept concedes, v. Seaton argument defendant have his rejected precise we as P.3d as well 598, 668 Cal.Rptr.2d 175]), 26 Cal.4th [110 term “rea that use the further that certain other instructions arguments of or constitute also reduce or dilute the burden prosecution’s proof sonable” v. Mendoza (2000) an impermissible mandatory presumption (People Crittenden, 150]; 6 P.3d People Cal.4th to believe our previous no reason 144). 9 Cal.4th He p. provides supra, were incorrect. decisions this point 2.90, action is jury, “A in a criminal given provided: No. as 10CALJIC and[,] in case of a reasonable doubt contrary proved be until the is
presumed to innocent This satisfactorily shown[,] guilty. verdict of not guilt he’s entitled whether his is [^] guilty beyond a reasonable People of him places upon proving burden presumption because possible not mere doubt doubt defined as it is doubt. Reasonable is follows: is open evidence to some depending on moral everything relating to human affairs which, comparison the entire imaginary state after possible doubt. It of case or they jurors in condition that minds the evidence leaves the of consideration all charge.” certainty of the truth of the they abiding to a moral say cannot feel an conviction b. Consciousness guilt
The trial court 2.03, instructed the with jury CALJIC Nos. 2.06 and 2.52, instructions for pattern inferring a consciousness of from the guilt statements, of false or making misleading evidence, from the suppression *51 and from flight after the crime.11 Defendant contends these three jury instructions were because were improper they misleading, were not sup evidence, the were ported by and improper instructions pinpoint lessening the prosecution’s burden of Defendant to proof. objected CALJIC Nos. 2.06 2.52, and the joined but in for CALJIC No. 2.03. asking Although this normally would constitute invited error the precluding challenging instruction on 86, v. appeal (People 2 Hardy (1992) Cal.4th 152 [5 796, 825 Cal.Rptr.2d P.2d we with 781]), agree defendant that the record no demonstrates obvious tactical reason defense counsel have why wished to the instructed that jury evidence that defendant or gave willfully false statements misleading could be used to infer consciousness of guilt. we Accordingly, do invited find error as to CALJIC No. 2.03. v. 955, Duncan (1991) 53 Cal.3d 810 P.2d Cal.Rptr. 131].) [281 merits, to the Turning defendant admits his about CALJIC complaints 2.03, Nos. 2.06 and 2.52 Thus, have been rejected in another case. in People Jackson Cal.4th 1254], 920 P.2d instructions, these referring to we stated: of instructions “[E]ach [these] made clear to the that certain jury or evasive types deceptive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying such was not activity of itself sufficient prove to a defendant’s and guilt, the to the allowing jury determine weight significance assigned and to such behavior. The nature the cautionary defense, instructions the benefits the admonishing jury evidence that circumspection regarding might otherwise be considered decisively inculpatory. We therefore [Citations.] 2.03, given jury, provided: you 11 CALJICNo. as “If find that this before trial willfully deliberately defendant made a misleading concerning false or statement the crimes tried, being for which you may he is now tending consider such statement as a circumstance However, to prove guilt. consciousness such by prove conduct not sufficient itself to guilt. weight significance[,] any, And your its if are matters for determination.” 2.06, given jury, CALJIC No. as provided: you “If find that a attempted defendant manner, suppress against any witness, evidence in by himself as such the intimidation of a may such attempt by you be considered tending as a circumstance to show a consciousness of However, guilt. by such prove guilt conduct is not sufficient weight itself and its significance, any, your if are matters for consideration.” 2.52, given jury, flight CALJIC No. as provided: person to the “The of a immediately after the commission of a crime or after is accused of a crime is not sufficient in itself to which, guilt, establish his a fact proved, may by you light but is if be considered of all the proved deciding question guilt weight other facts in of his or innocence. The to which such circumstance is jury entitled is a matter for the to determine.” not improperly instructions did consciousness-of-guilt that these conclude were and thus of proof’ lessen its burden or theory endorse prosecution’s instructions. not improper pinpoint misleading. were these instructions contends why is unclear
It to draw allowed jury the instructions improperly extent he claims To the by excluded defense evidence by been rebutted would have inferences that ante, because, as explained, pages we court, the notion reject the trial we Turner of Earl testimony 425-429, excluding did not err the trial court Latonya Jackson. evidence. were substantial supported also find instructions We defendant made could conclude which jury was evidence from There with story he coordinated statements to police, numerous false *52 he crimes, after the killings the and that for blame Thomas Johnson Johnson, Banks and Cook. in Guillory, with flight engaged did not they were and the instructions challenged proper conclude We rights. defendant’s constitutional any violate of Circumstances Validity 9. Special of
a. In general requires Constitution Amendment the United States Eighth to “circumscribe serve a function narrowing that the 1978 death law penalty (Zant v. Stephens (1983) the of for the death penalty.” class persons eligible This function is 2733, 2743, 77 L.Ed.2d 862, 235].) 462 878 S.Ct. U.S. [103 statuto sustain at least one jury performed by requirement capital Cal.4th (1993) circumstance. rily (People Bacigalupo enumerated special 808, Defendant contends 808].) 862 P.2d 467-468 Cal.Rptr.2d [24 provide that it fails so circumstances special law contains many Eighth function and thus violates narrowing constitutionally required arbitrary to be an penalty imposed death by permitting Amendment 538, 541 U.S. v. Brown (California fashion. unpredictable requires instead L.Ed.2d Constitution S.Ct. [107 934] [“The from as the penalty be structured so to prevent that death statutes penalty fashion”].) arbitrary administered in an unpredictable being times constitutional. Specifically, that the 1978 law is have held many We claim that the number of concedes, special rejected as defendant we have narrowing sufficient 190.2 fails provide set forth in section circumstances 297, 345 18 Cal.4th v. Bolin (1998) of the class. death-eligible 412, 956 P.2d 374].) Because we conclude the 1978 law is sufficiently Amendment, narrow satisfy we Eighth reject defendant’s further that there argument is eligibility the death sentence” in “[b]lanket violation of the due clauses of the process Fifth and Fourteenth Amendments to the United States Constitution.
b. circumstance Multiple-murder special
Defendant also contends the circumstance multiple-murder special 190.2, in section subdivision is (a)(3) overbroad. He impermissibly argues an provision permits wide impermissibly range culpable behavior to become grounds for the death imposing For claims penalty. example, that defendant murders, convicted of two accidental or two felony murders in circumstances malice, lacking express would for a qualify multiple- murder circumstance and thus be special eligible for the death penalty, although defendant, another convicted a single cold-blooded and premedi tated murder would not be so though he be eligible, may more morally blameworthy. did
Defendant not commit two accidental murders two or murders lacking event, malice. In any as categorizing especially deserving of the ultimate those offenders who kill or penalty two more victims one criminal event irrational, unfair or arbitrary, performs necessary narrowing *53 of pool potential offenders Amendment to required Eighth United States Constitution. We have so held v. Box Cal.4th P.3d and 130]), defendant does not otherwise. persuade
II. Penalty Phase
A. Facts
1. Aggravating Evidence The People evidence from the presented families of the victims show the effect the deaths had on their Devallier, families. Alvarez Annette’s father, victim, testified and related how he close was with the how her eight-year-old son had said mother, he wanted to die so he be could with his how her son six-year-old had and would nightmares telephone wanting was, know where his mother and how Annette had in a drug been rehabili- tation and had tinned her He program life around. identified a of photograph Annette’s he four-year-old but admitted did see her daughter, very often. cross-examination, On he admitted she had had with cocaine problem her, she children and that did not live with addiction, as result her know he did not He admitted left the rehabilitation program. had recently was killed. of she night the influence cocaine she was under close brother, had been Devallier, Jr., very testified he Annette’s Alvarez killed, went when they before she was year sister until about a his “a Annette’s her lot.” testified he dreamed about ways.” “different He Annette and Lake, she raised” “partially Moezelle testified grandmother, difficulty greater she and had to her as older very got Annette was helpful all, old alike” stated, and young “she was friend to around. Lake getting is missed.” “greatly and Elliot described Carter’s brother-in-law. Gary
Brad was Carter’s Elliot death had affected how Carter’s as close. When asked large very family it.” even touch “Devastating really doesn’t family, the Carter he replied: of the Yolanda, sister, wakes in the middle wife, Carter’s and she Elliot’s work as a result of had at problems about Carter’s death. She crying night that he slaying was so distraught by Carter’s oldest brother killing. that, and confirmed Elliot testified herself moved from area. Yolanda time, all the difficulty depressed she had following slaying, sleeping, had trouble weight she had lost a lot of had and was in She said therapy. for her son. caring how also testified and Carter’s expressed
Two more Carter’s sisters One, Brown, their father had Antonea described how death affected them. “It’s to the point with his son’s death: dealing had an hard time especially more, said it us, he because he—he any where can’t even look kids child, losing him the idea another Gary, just was so to lose painful us doesn’t want to be . . . around more.” just any them, children, daughter, one his 15-year-old Carter had three *54 Carter, following nightmares Laveone testified. She stated she had to court to Her testify. and that her brother was too come to killing upset and stared at their father’s things picture sister now over little and got angry cries. that defendant by noting in closed the case aggravation convictions. felony
had to suffered two having prior drug-related stipulated 2. Evidence Mitigating three calling the penalty by
Defendant his at began phase presentation Rosenthal, a psychiatrist, the stand. Dr. Fred mental health to experts testified that defendant had no mental disorder diagnosable or but psychosis too was to allow the young observation of a full-blown mental disease. Dr. Rosenthal found that defendant suffered from emotional in that he problems immature, a very was and passive dependent person who had difficulty making decisions. He independent was influenced easily by pressure, peer vulnerable, very and sensitive to criticism. with this emotional People will condition gravitate any leader for strong guidance. Although years old, he functioned as a teenager both and emotionally intellectually.
Dr. William Lane Spivey, psychologist, testified he began seeing defendant in 1983 because had he been having adjustment at home problems and was not well in school. performing Dr. last saw in Spivey defendant 1988. He found be “a kid grow groping low up. Fairly self-esteem, a lot of issues at adjustment school as well as in It the family. was a kid to find his at the trying identity time.” Defendant was raised being his grandmother, him; who loved he was immature very and age felt the absence of his acutely mother. Defendant often of spoke up growing and rescuing his mother in some way. Barrett has a master’s
George in clinical degree and works for psychology Services, Alameda Mental Health County which takes court referrals when the court believes someone is or having mental emotional this problem. In he capacity, examined defendant in 1991 when defendant was years old. Barrett described defendant as “an 18 who year old and thinks speaks of a 12 style year old.”
The defense then presented of several defendant’s rela- testimony Harris, tives in mitigation. cousin, Tamika defendant’s 17-year-old testified she had known and lived with defendant almost her entire life. She said kids teased him school “because he was kind of than the heavy bigger other kids.” He would never start fights and was not the out type go cause trouble. She stated on cross-examination that her father and grand- mother loved defendant much that he was an very abused child. Surrell, cousin, Marlon also defendant’s testified was raised the same household as defendant. He tried to discourage associating defendant from Johnson, with Antoine but defendant would not listen. Surrell,
Defendant’s Irma grandmother, testified that defendant had lived old, with her since he two he had years although lately with her stayed only her, He was like a sporadically. son and she loved him very much. *55 took She him to see Dr. he when was because “he had Spivey young trouble with his mind and he wasn’t with making good connections his mind.” She father, who His drugs. addicted his mother was because raised defendant cross- was 14. On defendant, defendant died when to see came rarely when an incident recalled whether she examination, the asked to kill his grandfa- and mother threatened with his angry became about anything not know a She said she did with knife. ther and himself about a report shown being police after maintained that position incident and she anyone, her he had killed never told She said defendant the incident. murders. any he had admitted did not know Adams, testified aunts, and Charmaine Celeste Surrell Two of defendant’s was a because his mother mother raise defendant had their they helped a was not disruptive testified that defendant addict. Celeste Surrell drug concerned that defendant was child, but one. Both women noted a passive from Street house check on her at Cole go his mother and would about time time. and said that when Surrell, also testified defendant’s
Eugene grandfather, under to Sacramento while his mother took him young, defendant was quite where house, a could not remember left him at drugs, the influence that time decision or she had left him. It was at the house was with whom defendant, wife, Irma, raise defendant. He raise helped made to have his denied that defendant had often call him for advice. He and defendant would knife, but sometimes throw ever threatened him with a stated that would a that much defendant was follower and tantrums. He affirmed that temper defendant to leading would lead him around. He found kids children younger to break Berkeley; up arrangement, area in he tried drug-selling known A dealer was having there a month later. again drug but found defendant dealer sold them. defendant hold his while the drugs pocket
B. Discussion
1. Victim Evidence Impact impact and nature the victim
Defendant contends that extent Prior to of trial was improper. admitted at the penalty phase evidence the victim’s family victim and evidence of murder’s impact trial. of a capital (Booth not admissible in the penalty phase friends was 2529, 2532-2533, 96 S.Ct. 501-502 Maryland U.S. (1987) [107 353, 455, fn. 9 19 Cal.4th 440]; (1998) L.Ed.2d v. Ochoa People [79 itself court later reversed high The federal 442].) 966 P.2d 2597, 115 L.Ed.2d S.Ct. v. Tennessee 501 U.S. Payne another simply evidence deciding impact (Payne), 720] “[v]ictim *56 444
form or method of the informing sentencing authority about the specific (id. harm caused the by crime at question” 825 S.Ct. at p. 2608]) p. [111 and was thus admissible evidence. We have the followed court’s lead high (People Taylor 827, 26 Cal.4th (2001) 1171-1172 Cal.Rptr.2d [113 34 P.3d and also 937]) have found such victim evidence admissible impact a crime 190.3, as circumstance of the to section pursuant factor (a) (People v. Stanley 10 Cal.4th 897 P.2d 481]). [42 Because both defendant’s crime and his trial occurred had after Payne decided, been his case controlled by Payne. Because victim impact evidence is matter, now admissible as constitutional and statutory defendant clarifies his that the argument evidence was by asserting improper that the evidence was so it tended to inflammatory encourage the jury towards and an irrationality emotional untethered to the facts of the response case, rendering trial under fundamentally unfair the due clause of process the Fourteenth Amendment to the United States Constitution. (Payne, supra, 501 U.S. at S.Ct. at this avenue p. [leaving of relief p. open]; 2608] People v. at Hardy, Cal.4th supra, p. 200.)
We have reviewed the victim evidence admitted the impact penalty trial, with phase together and closing prosecutor’s opening arguments, conclude admission of the evidence did not surpass constitutional Family limits. members their spoke of love of the victims they and how missed having the victims in their lives. The also prosecutor introduced of the victims while still photographs alive. In her argument, evidence, victim emphasized but also of the impact relevance of spoke itself, the facts of the crime as well as other about defendant that aspects (she demonstrated argued) why death was for him penalty appropriate life sentence was not. The was evidence relevant and the argument appro- no danger We find that the priate. jury’s was overborne and thus rationality find no constitutional violation.
Defendant argues that the trial court erred he would not be ruling allowed counteract effect of the victim evidence cross- impact examining family members elicit evidence that showed the victims were cherished family members witnesses claimed them to be. For the trial court example, when defendant upheld prosecutor’s objection Elliot, brother-in-law, to elicit attempted from Brad Gary Carter’s that Carter twice had been sent to court prison. trial ruled that defendant was the victim’s character. Defendant was able to estab- improperly disparaging lish, however, Annette had Devallier left her rehabilitation program under the influence of cocaine at the time of death. her *57 the from event, Testimony and, no any prejudice. error in was no
There
the
affected
killings
to
how
relevant
show
members was
family
victims’
to
victims’
due
in their feelings
were
them,
they
justified
whether
not
not entitled
defendant was
Accordingly,
character.
nature and sterling
good
if
Even we
on cross-examination.
of the victims
the character
to disparage
erred, there was no prejudice;
court
that the trial
assume for argument
relatively dispas-
briefly
testified did so
members who
several family
at
guilt phase
the evidence adduced
aware from
was
jury
sionately.
at a
killed in a dispute
and were
were
addicts
drug
the victims
probably
short, the
In
jury
congregated.
addicts
drug
house which
disreputable
citizens, so defendant’s
not upstanding
the victims were
already knew
could not have af-
in cross-examination
to
this
inability
point
emphasize
and no
there was no error
In concluding
fected the penalty judgment.
evidentiary
court’s
rulings
the claims that the trial
we also reject
prejudice,
trial,
to fair
process,
of his
due
rights
on this
defendant
topic deprived
reliable,
him,
and to
against
the witnesses
confront and cross-examine
Const., 5th, 6th,
(U.S.
determination.
nonarbitrary penalty
individualized and
Also,
error, we need not address defend-
no
finding
8th & 14th Amends.)
was
jury
because
further claim that
error was compounded
ant’s
“[t]he
this evidence.” (Italics added.)
instructed . . . how to consider
never
evidence admitted
addition,
that the victim
argues
impact
In
of aggravating
category
case
not relevant to a statutorily specified
this
was
501 U.S.
state
Payne, supra,
evidence and was thus error under
law despite
1,
700
38
775
(1985)
Cal.Rptr.
808.
v.
Cal.3d
(See People Boyd
[215
dis-We
statutory categories].)
P.2d
evidence limited to
[aggravating
782]
190.3,
which
section
factor (a),
evidence
admissible under
agree. Such
was
v.
of
crime. (People
to consider the circumstances
permits
jury
Amendment to the United States Constitution of state law reject scope the claim that the argument any farfetched in event. We also we find impermissibly broadened regard admissibility impact evidence) of victim (with (1964) 347 S.Ct. City v. 378 U.S. right process (Bouie due Columbia violation of law; the law broadening prior applying we are 894]), because we are not L.Ed.2d his crimes. in effect at the time defendant committed 190.3, that, (“circumstances of (a) factor Finally, reject argument if section we defendant’s evidence, it is unconsti array impact interpreted include a broad of victim crime”) is U.S. tutionally vague. high (Tuilaepa v. 976 [114 Both the court California p. Cal.4th at 2630, 2637, (People Kraft, supra, 750]) and this court 129 L.Ed.2d S.Ct. Although 190.3, unconstitutionally vague. (a) factor not 1078) have concluded section evidence, array impact of victim permitting a broad decisions not in the context those were here, reasonably of the crime” the “circumstances applicable them for we nevertheless find surviving family members. deaths affected include how the victims’ 2. Alleged Prosecutorial Misconduct
Defendant contends the committed forms miscon- various statements, duct in her opening closing and in defense cross-examining witnesses at the below, As penalty phase. explained of the claims were many review, preserved and those claims are appellate before properly *58 this court lack merit.
a. Future dangerousness/gang affiliation
Defendant first contends the in her prosecutor argued improperly that, statements if opening closing the death spared penalty, a to other posed danger inmates and to in Defend people employed prisons. ant also claims the prosecutor committed misconduct in her cross-examina tion of Dr. Rosenthal when she suggested defendant would become hit man for the Black Family Guerrilla an (BGF), African-American gang. prison
The law is settled:
expert testimony
defendant will
capital
pose
in
danger
the future if his
is
life
is inadmissible
v.
spared
Murtishaw
(People
738,
29 Cal.3d
(1981)
773-775
631 P.2d
but
Cal.Rptr.
446]),
[175
“prosecutorial argument
defendant’s future
regarding
dangerousness is per
missible when based on evidence of the defendant’s conduct rather than
expert opinion”
v.
Ervin
Cal.4th
(2000)
[91
623,
We turn first to the remarks. prosecutor’s opening She stated: “It that the I People’s position cold, circumstances that presented you, calculated manner which Mr. executed Boyette two shows people you there is a likelihood that he strong would kill And again. you have ask yourselves, you do want to more through families that?” At this put point, defense counsel objected, this claiming argument.” The trial “improper court overruled the impliedly objection, instructing con- prosecutor tinue with her She then concluded her argument. opening remarks without revisiting the topic.
Although defendant this claim for we find no miscon- preserved appeal, duct, for the was based on the evidence or prosecutor’s argument presented that defend- did indeed show The evidence presenting. what she anticipated Annette Devallier blood, including shooting two cold people ant killed Relying begged mercy. as she range twice in face at point-blank was a that defendant evidence, argue was permitted the prosecutor this of conscience when twinge no that, exhibited having killer and remorseless if to live. Carter, kill allowed again he would likely he killed Devallier and from the evidence the Moreover, prosecutor presented the victim impact families regarding her rhetorical question families supported victims’ future victims. misconduct in her committed also argues
Defendant cross-examination, the her During pros of Dr. Rosenthal. cross-examination immaturity that defendant’s to elicit a concession ecutor attempted life in that, if sentenced to likely make it would personality dependent and be led to commit come under the influence of BGF he would prison, *59 that this was irrel objected counsel crimes in Defense additional prison. on the initial objection, trial court ruled evant, it does not the appear but argumen that the was objection questioning it sustained a second although much about the very that he did not know Rosenthal answered tative. Dr. do not necessarily condition BGF; from defendant’s suffering that people any strong defendant toward gravitate for would guidance; need gang that defendant individual; the the was implying and that to extent prosecutor she be may influence in to gang prison, would be particularly susceptible whether, defendant if directly this situation.” When asked “oversimplifying crowd, him to commit would influence wrong they with the got “caught up” crimes, “I’m not that.” saying Dr. Rosenthal replied: because, this claim for appeal that defendant forfeited
Respondent argues be admonished. As he that the jury he he failed although objected, request guilt phase, misconduct at did for his claim of prosecutorial it an admonition because his failure to contends we should excuse request not, were and, if that his defense counsel been futile to do so would have ante, As with at pt. I.B.7.) to make the failing request. (See ineffective that a the conclusion claims, in the record nothing supports guilt his phase futile, nor that counsel’s have been to admonish would jury request ineffective assistance. so as to constitute failure so to was request prejudicial review. for our find the was not adequately preserved We thus issue claim, find the prosecutor’s this we would Had defendant preserved crosses, if not Dr. Rosenthal cross-examining approaches, when questioning Had cross-examination. from impermissible the line separating permissible dangerous- he for future capacity evidence that lacked defendant elicited Dr. to cross-examine have been entitled ness, would prosecutor Rosenthal on that subject. v. 20 Cal.4th (People Earp (1999) 894 Ochoa, 15]; 978 P.2d People supra, Cal.4th at p. 463.) counsel, however, Defense did not ask the witness about defend questions ant’s future It thus dangerousness. appears prosecutor’s were questions an to elicit attempt evidence on prohibited expert future dangerousness.
Even assuming prosecutor committed misconduct by Dr. asking Rosenthal to predict violence, defendant’s for future propensity there was no because the witness prejudice did with the agree of the implied premise line of prosecutor’s questioning, that the replying was “oversim- prosecutor this situation” and that he plifying was “not saying” defendant would become necessarily involved in due to his prison gangs dependent personal- ity. instructed that jury made during attorneys “[statements are trial not evidence” and that consists of testimony “[e]vidence witnesses.” We assume the followed these jury instructions.
Defendant also complains that returned to this allegedly theme in Indeed, improper closing argument. the prosecutor made this point repeatedly, that Dr. Rosenthal arguing “talks out of both sides his mouth. When him, it he’s helps show, real plain, goes along with the as but soon as I start mentioning because gangs, at, know what I’m you getting likelihood of again, his future killing dangerousness. The perfect personality who could kill Defense again.” counsel then objected, “there’s explaining, *60 no as to case.” The testimony gangs this court overruled the apparently objection, “There is saying: no, no evidence of I gangs, she’s—as [but] n understand,she’s his future arguing dangerousness based upon present evidence.” The prosecutor continued: “You have to at look his future Is a dangerousness. this remorseful person who blew it one really night or is this a who’s sociopath going to kill again?” exchange
This demonstrates that the was not on prosecutor any relying expert testimony but was that the facts of the crime arguing showed an and, of absence, absence remorse from that could infer defendant jury awas threat to kill again. Ervin, This was permissible argument. v. (People 22 supra, Cal.4th at p. 99.)
b. Use hypothetical questions of
Defendant next contends the committed misconduct her during cross-examination of Dr. Rosenthal him a by asking series of hypothetical based on facts questions evidence. By this employing of method defendant claims the questioning, before the prosecutor placed jury information that was never admitted into evidence and he had no which to due rights his constitutional confront, thereby violating opportunity him, against witnesses trial, to confront and cross-examine fair a process, 6th, 14th Const., 5th, 8th & verdict. (U.S. reliable penalty and for a Amends.) witness of an limits, the examination expert the law permits
Within testimony render may opinion an “Generally, expert facts. hypothetical with that asks the expert a of facts ‘in given hypothetical question on the basis 14, 58.) ed. 1992) p. (4th McCormick on Evidence (1 assume their truth.’ § evidence, shown by be rooted in facts a must question Such hypothetical 605, Cal.Rptr.2d 14 Cal.4th v. Gardeley (1996) however.” (People [59 . . be ‘framed 356, may upon . question P.2d “A 713].) hypothetical admitted at any which can be deduced’ from evidence properly any theory of the evi trial, facts within limits ‘any including assumption dence,’ by employing elicit an may opinion and a prosecutor expert 5 Cal.4th v. Sims (1993) such evidence.” upon (People based hypothetical Witkin, see 3 Cal. 992]; P.2d 436, fn. 6 Trial, 258-260.) at pp. Evidence ed. Presentation (4th 2000) § need not be an witness statement of facts posed expert hypothetical as is evidence, into “so it material long limited evidence admitted already in the field in that is reasonably relied type upon experts particular course, material that forms their Of forming any opinions. [Citations.] For ‘the must be reliable. testimony basis of an expert’s opinion [Citation.] or of credence degree law does not accord to the same expert’s opinion it data Like a house built underlying as does the integrity opinion. ” on which it is based.’ sand, the is no better than the facts expert’s opinion Gardeley, p. 618.) supra, broad, a party field Although permissible hypothetical questions facts jury before the cannot use this method of witness questioning place no evidence is ever divorced from the actual evidence and for which sometimes *61 introduced. The often prosecutor approached hypothetical this line from impermissible crossed separating permissible to limit failing prosecutor’s and the trial court erred by questioning, however, in the we find defendant suf aggregate, Considered questioning. no as a result. fered prejudice Dr. misconduct, the asked of alleged prosecutor
In the first instance or not of witnesses any had testified he had spoken Rosenthal—who to the that he had witnesses read of their assume any reports—to spoken Carter; that shot at credible; Gary him that Johnson they found them that told house; that grabbed defendant Annette Devallier Carter from dragged as Devallier; Devallier she that defendant shot Carter and gun pursued life; knelt before him and for her that he then begged shot Carter as he lay witness, the ground; and that another Kenya Cook, Lita heard Carter also don’t,” say, “Please before defendant killed him. counsel objected, Defense claiming had prosecutor engaged misconduct because Cook had not testified. The trial court overruled the objection, “It within explaining, realm of probability.” prosecutor that, finished her asking question by true, all be assuming those facts to “are you somehow that claiming [defend- under his own free acting will?” The witness that he replied ant] [was] could not answer the he question because did not evaluate defendant’s mental state at the time crime.
All the facts included in the one, prosecutor’s hypothetical, save were by, from, established or reasonably inferable the evidence already admitted at trial and thus were for permissible grounds Most hypothetical question. damning was defendant’s own July admission his 30th statements that Devallier said don’t do it” he before shot her “please twice at point-blank His range. statement was for the Defendant played jury. objects strongly use prosecutor’s Cook, facts from hypothetical Lita Kenya Cook did not at trial. testify agree We trial courts should wary be of parties using the mechanism of a hypothetical question to that suggest jury evidence exists that was not at trial. presented there was evidence Although from which it could be that reasonably inferred Cook was a witness to percipient Carter’s shooting (defendant that, admitted Cook was at the scene and after Carter, he shot he looked on the Cook of the Cole up Street porch saw there house), was no evidence that Carter said before anything defendant shot him. of the Accordingly, portion prosecutor’s hypothetical question was improper.
In misconduct, the second instance of the prosecutor asked Dr. Rosenthal to assume he had spoken Pastor, with a officer probation named Maylene credible, that he found her him and that she had told defendant “was extremely asked, She then manipulative.” “Would that change your opinion was you?” Dr. Rosenthal manipulating answered that did [defendant] not think defendant was him. Because the did not manipulating evidence present any Pastor, from officer named probation Maylene this an contends was He failed to improper hypothetical question. however, this object question, thereby forfeiting the claim. Even assuming us, the issue is before find no properly we Dr. Rosenthal did not prejudice: his mind as a result of the change assertedly improper and—from question changes defendant’s his many well aware of story—the jury already the truth. potential manipulate *62 In third the use of an allegedly the improper hypothetical question, prosecutor began by asking Dr. Rosenthal to assume he to had spoken the had Shearson, presented although prosecutor named Mat someone a defense court sustained the trial Shearson. When evidence from any any mentioning the without question continued the objection, prosecutor defendant, “with a to assume asked the witness Thus, the names. prosecutor sidewalk, a and on the standing males was other Black of several group hit him for no and the defendant went up and by individual walked White when you about talking the of act you’re Is that kind reason. apparent fl[] contention, de- to respondent’s behavior?” Contrary talk about antisocial this line of to continuing objection questioning, a fense counsel made review. the issue for appellate thereby preserving The question. an hypothetical conclude the was improper question We had that defendant at the any penalty phase did not evidence present People victim, from which nor there evidence any a was assaulted White previously The harm be inferred. reasonably state affairs could such hypothetical First, the question implied from the twofold. flowing improper question re- defendant had of an factor which aggravating evidence additional Second, because a an to defend. neither notice nor opportunity ceived the injected the suggested, improper question motivated attack was racially reasons, the trial court For these of racial into trial. specter prejudice to this line of continuing objection erred in to sustain defendant’s failing questioning. hypothetical questions fourth and fifth uses of allegedly improper
The were similar, preserved by we reach the issues because may they were to asked Dr. Rosenthal trial counsel’s continuing objection. prosecutor named James Webb that defendant had threatened a inmate jail assume had assaulted an to that defendant because he was a snitch also assume had asked defendant inmate named McLain. earlier Although prosecutor them, incidents, these defendant denied about questions these hypothetical questions.13 introduced evidence any support never contends Although respondent were Accordingly, questions improper. testimony George were questions supported prosecutor’s Barrett testified Barrett, defense counsel’s questioning, we Under disagree. court had referred to him “because that defendant been [trial] . . . death threats others had made threats concerned because [defendant] evidence was insufficient and nonspecific and himself.” Such general in the accusations inherent faith belief in the establish good specific jail defendant had threatened questions prosecutor’s hypothetical McLain. an inmate named and had assaulted inmate named James Webb report, but trial court sustained relying police be on a prosecutor purported 13 The identification but never hearsay objection report. It was marked for defense counsel’s introduced into evidence. *63 We find defendant’s claim of a sixth instance of an allegedly improper hypothetical also has merit. Defendant question im- argues prosecutor asked Dr. properly Rosenthal whether the fact that defendant had threatened kill to with a knife grandfather in “important the diagnosis.” When Surrell, later cross-examined prosecutor Irma defendant’s grandmother, incident, about the it, she said she did not remember although the showed her a of the incident to police report refresh her recollection. husband, Surrell’s Eugene, also denied that defendant had threatened him. identification, marked for police report, although was never formally introduced into evidence. There was thus no evidence of the alleged incident.
As above, described the prosecutor was in aggressive using hypothetical to make her questions point. She exacerbated the for potential prejudice by in suggesting that closing argument she had evidence in her that possession her line of supported questioning, but chose not to it in the simply present interest of saving Thus, time. she jury stated: “I don’t need bring [to] those witnesses in order ask a to that hypothetical [question] witness. And you notice I did not in those bring witnesses. Those pale comparison what have in front you already You are not you. to find the death going because of some penalty assaults and batteries. So I did not waste time your with that type (Italics added.) that Suggesting she had of information.” witnesses who would have testified to certain facts when she not did call such Hill, witnesses is misconduct. supra, Cal.4th at 829.) p. exists,
Although for potential we find the prejudice potential First, was not realized. the jury was instructed with CALJIC No. 2.82 as witness, follows: “In an examining counsel expert may to him a propound known in the law type question as a hypothetical such a question. By the witness question, is asked to assume be true a set of facts give an based on that opinion In assumption. such a determining question, the court does not rule and does not necessarily that all the assumed find facts have been It proved. only determines that those assumed facts are within the or probable possible range of the evidence. It is you jury find from all the evidence whether or not the assumed in a hypothetical question facts have been If should that proved. you find in such a any assumption ft[] question has been are to you determine the effect proved, of that failure on the proof value and weight of the based expert opinion [on] assumed facts.” The trial thus (Italics added.) court instructed the not to jury assume facts underlying question were true.14 hypothetical
Second, and more
when
importantly,
instructing the
on the
jury
statutory
factors,
aggravating and
court
mitigating
trial
expressly
jury
informed
14 Defendant focuses on the sentence in
only
the instruction that states:
trial
“[The
court]
determines
those assumed facts are
probable
possible
range
within the
or
of the
*64
activity
other criminal
evidence
had not
any
that the prosecution
presented
of
190.3,
Thus, the court
(b).
to section
consider pursuant
that it could
factor
by
be
consider,
guided
account and
take into
shall
instructed the
“You
jury:
of
or absence
B, the
. . .
presence
if
the
factors
following
applicable:
[f]
[f]
the
for which
the crimes
other than
the defendant
by
criminal activity
the
or
involve
use
which
in the
proceedings
has been tried
present
use
threat to
or implied
or the express
use
force or violence
of
attempted
court,
no
that
made the finding
the
in effect,
or
And
force
violence. fl[]
(Italics
the
by
prosecution.”
was
activity
produced
such criminal
evidence of
Morales
this instruction.
v.
(People
followed
jury
the
added.)
presume
We
582,
34,
11].)
18 P.3d
25
47
Cal.Rptr.2d
Cal.4th
(2001)
[104
the attorneys
made
Third,
by
instructed that
the
jury
“[statements
of testimony
consists
“[ejvidence
trial
not evidence” and that
the
are
during
on the
witnesses,”
the
the
relied
jury
improper questions.
of
chance
reducing
misconduct was harmless.15
any
We thus conclude
remorse
to
and lack
testify
c. Reliance on
of
defendant’s failure
by
the
committed misconduct
next
prosecutor
Defendant
contends
The Fifth
remorse.
on his failure to
commenting
testify
express
from
a
to the United
Constitution prohibits
prosecutor
Amendment
States
of his constitutional right
defendant’s invocation
on a criminal
commenting
v.
(1965)
the
of criminal charges. (Griffin
to remain silent in
face
California
At the
guilt
14 L.Ed.2d
(Griffin))
phase
Defendant
three
cites
instances in which he claims the committed
First,
this
of misconduct.
in
type
prosecutor stated
closing
argument that defendant’s two
drug-related
convictions
prior
felony
would
assist the
in
jury
determining defendant’s
“if
credibility, and that
he were
to—somehow,
God forbid take
stand and
he was
say
sorry,
you
which
didn’t see.” Defense counsel immediately objected, citing
Griffin, supra,
U.S.
but his objection
overruled,
was
on the
apparently
ground
defendant had testified at the guilt
The trial court erred
phase.
by overruling
defendant’s objection, as he did not
testify at
penalty
phase,
phase
trial in which he might
express remorse and which the prosecutor appar
ently
The
referring.
prosecutor’s
thus
argument
ran afoul
the rule
her
prohibiting
from
that a
urging
defendant should have testified at the
penalty phase
express
Crittenden,
remorse. (People v.
supra,
We reject respondent’s characterize this as attempt outside argument prohibition. claims the Respondent prosecutor’s argument “simply Griffin’s failure testify truthfully or express referred] remorse.” [defendant’s] This argument ignores phraseology prosecutor’s statement: “if were to . . . take the stand and he was say sorry, you which didn’t see.” (Italics The statement added.) does not refer to defendant’s “simply” failure truth; to tell the it refers to clearly defendant’s failure to take the stand penalty phase. We thus find the prosecutor committed misconduct.
Defendant argues the this misconduct later her prosecutor repeated argument when she revisited the same theme: “So you have the and lying have you the lack of remorse. There remorse, was so much lack of and so case, much in this that I drew a lying whole chart it. up separate I “And will come back to this. Carter,
“He shoots no there’s remorse. Let’s talk about the definition of remorse. I it looked up dictionary:
“ ’ ‘A torturing sense of felt over a one deep guilt wrong that has done. Carter, no remorse. shoots can’t do. He sociopaths we know
“Which No easier. it’s getting Annette, again, Shoots Carter no remorse. Killed remorse. ’em.’ ‘You smoked ‘We anything.’ don’t know ‘You
“He tells Guillory: family.’ you your I smoke tell and will anyone remorseful. “Real He’s on that really good tape. he’s lies to the police,
“The defendant remorse there. detail, voice, his inflection. No really good. no remorse. to the judge, “Defendant lies *66 remorse. lies to still no you, “He Not me.” it. denying he’s He sorry. just keeps once has he said
“Not claim of and thus any to this line of argument, Defendant did not object the issue for Assuming was not preserved appeal. misconduct prosecutorial not refer misconduct, did us, find no for prosecutor before we properly failed to show that the facts Her testify. argument to defendant’s failure Marshall, v. remorse permissible. (People defendant exhibited was any 855.) Cal.4th at supra, p. in
Third, asking committed misconduct defendant contends prosecutor consistent remorse was whether a lack of Dr. Rosenthal the penalty phase in disorder. He answered of an antisocial personality with diagnosis to him having denied affirmative, had testified defendant but previously for of the motivation much murders, undercutting committed the thereby this claim by remorse. Although preserved defendant to express cross- merely no misconduct because prosecutor we find objecting, comment and did not diagnosis to the of his scope the witness as examining or otherwise phase express at the testify penalty on defendant’s failure to remorse. sug- in the prosecutor improperly find one instance which
Although we
remorse, it was a
have
and expressed
that defendant should
testified
gested
extensively
in her argument
comment. The
later
solitary
prosecutor
brief and
the de-
without any objection
defendant’s lack of remorse
emphasized
“
brief and
‘[Ijndirect,
fense,
earlier misconduct harmless.
rendering any
suggestion
without
testify,
any
failure
references to a defendant’s
mild
therefrom,
an inference of guilt be drawn
are
held to consti
uniformly
”
tute harmless error.’
v.
Cal.4th
Bradford
Defendant next
contends
prosecutor committed misconduct by
commenting on murders in
society
general “and the
jury’s obligation
do
something
violence.
stop”
Defendant contends this line of argument
diverted
reasoned,
from
jury
reaching a
moral
to defendant’s
response
crimes and thus
it from
an
prevented
reaching
“individualized and reliable
sentencing determination.”
Defendant did
this
preserve
claim by object
ing at trial. Assuming the issue is
court,
before
we
properly
this
find the
argument was
permissible rhetorical
to the thrust of the
response
defense
that defendant’s
position
youth,
and the
immaturity,
circumstances
in which
he lived justified
“Whereas a
mercy.
commits
misconduct
comments
making
calculated to arouse
or
[citation],
passion
prejudice
comments in this case were not so calculated.”
(People Bradford, supra,
death sentence *67 Defendant next contends the committed prosecutor misconduct by the to excuse encouraging jurors the themselves from if jury they found they sentence, could not vote for a death and (he claims) those by urging jurors favoring a life sentence to defer to the other jurors who were more “street reject subsidiary First, 16Wealso several primary reject claims related to this contention. we prosecutor’s the claim that argument regarding the defendant’s lack of remorse was miscon duct nonstatutory because it relied on aggravating (See Boyd, People evidence. v. supra, 38 p. and, Cal.3d at 775.) event, This claim proper objection was forfeited for lack of a any in prosecutor may properly remorse, a comment on of “[a] defendant’s lack as relevant the question circumstance, of present mitigating whether remorse is as long a prosecutor so as the suggest does not that of aggravating Mendoza, lack is an remorse factor.” v. supra, 24 p. 187.) Cal.4th at Second, reject we the prosecutor’s argument claim that the improperly converted the mitigating absence of a aggravating (See factor into an People Davenport (1985) one. Cal.3d 288-290 Cal.Rptr. 861].) 710 P.2d This claim also was forfeited for objection. proper being argument lack of a There no mitigating the absence of a factor is aggravating, it is also meritless. Third, reject we also defendant’s further claim that he was denied several federal consti- rights prosecutor’s tutional a result of argument regarding Though as remorse. prosecutor made a brief that improperly right testify comment touched on defendant’s not to penalty at the phase, passing fundamentally comment did not render his trial or unfair penalty arbitrary, liberty determination unreliable or and did not of deprive any him interest created in state law. failed and thus these grounds on either of failed object smart.” Defendant before the issues are properly Assuming issue for appeal. either to preserve that misconduct contention record does us, support we find the occurred. for or opponents not advocates “You’re first told jury:
The prosecutor decide what You are to in stage at this proceedings. the death penalty aas jury. think is you morally appropriate Can do it? Can you: you every single
“And remember I asked one you to death? verdict, he would be court, knowing put return a come down in you “And one of said could. every you you “Now, cannot you is too much just you that this you if find this, alternates. us have you in a like must let know. We
deliberate case is very type this of the it different
“And I think in proceeding, part smarts, can’t be naive emotional, you need street it’s you your proceeding, foreman. A I street smart you very these recommend things. pick about Be you guide you. organized smart foreman who will lead very street other, be emotional.” (Italics with each because it will and be very patient added.)17
Later, things I to do just say couple stated: “'What want this is a all, you, your backgrounds, very First of for some of you. justice we in criminal world for And I think sometimes you. different from different towns that. We’ve taken off the streets forget[] you system you, in here. And for some of you’ve Area and we’ve thrown Bay you on, have street smarts. some of the violence that know. You goes you seen this, to your jurors who aren’t listen exposed “So those you fellow *68 don’t have a listen and be you very patient, who know what’s on. You going bat, talk about it.” you you (Italics added.) off the listen and opinion right set cannot accordingly not to this line of argument Defendant did object the were Assuming misconduct. claims it constituted argue appeal for provides find no Section 1089 we misconduct. properly preserved, a time ... any It in “If part: removing sitting juror. provides pertinent found to be unable to . to the court is good . . . . . cause shown juror upon cause discharge good appears or if a duty, juror requests perform H.B.4., noted, argument Juror who asked to had an effect on No. post, part in this 17As be excused. therefor, the him may court order to be and draw the name of discharged an alternate . . the . .’’To extent the argument echoed this prosecutor’s merely statute, it was not misconduct. The chosen prosecutor’s language admittedly flirted the with great danger coercing to a jury verdict. particular (The trial court later remarked “it an basically was as improper argument we such.”) Were able characterize the argument as prosecutor’s actually those encouraging to vote for life to jurors remove themselves from disposed verdict, jury, thereby way for a death paving we would be obligated to conclude the argument defendant’s to a abridged right fair trial. (Cf. Gainer, People supra, 19 Cal.3d jurors to [instructing minority reconsider their light of the views position denies majority jurors constitutional right unanimous find jury verdict].) Although we line, did prosecutor’s argument not cross this against we advise such argu- ments, leaving the to the trial question discharging jurors court the litigants.
We reach the same result defendant’s regarding contention that the pros- ecutor’s argument jurors to defer to the encouraged of those judgment jurors “street is possessing smarts.” It unclear what the meant prosecutor by this argument, but clearly she was that those suggesting with “street jurors smarts” had some to evaluate greater ability whether accurately deserved to live or die. Defendant contends the “told who jurors might have minds open about their penalty determination and who might feel for sympathy to defer to other who jurors would not be swayed [defendant] . . . .” by sympathy disagree We this was the obvious of the import words prosecutor’s because it inconsistent with prosecutor’s almost simultaneous exhortation “listen your jurors fellow who know what’s on,” to “be going very don’t a set patient, bat, have off the opinion right you listen and talk you about it.” also disagree We with defendant’s further claim that the prosecutor’s argument encouraged jurors to outside the go evidence to decide the of the appropriate penalty, gist entire prosecutor’s argument was that the evidence the death aggravation justified In penalty. short, although the prosecutor’s was argument potentially we misleading, find no reasonable on this record that the as possibility was misled to its jury duties.18 proper
3. The Trial Court’s Remarks Disparaging
Defendant contends the trial made court disparaging remarks about his mental health in front of the expert jury, thereby usurping misled, 18Because we unlikely jury find it we also conclude the prosecutor’s *69 argument unreasonably not did skew the process thereby deliberative render trial unreliable, fundamentally deprive or of a impartial jury defendant fair and in violation of his Const., 5th, 6th, rights. (U.S. federal constitutional Amends.) 8th & 14th his mitigating its view that addition, by expressing In factfinding role. jury’s considered, claims the trial court he seriously be should evidence make “that would for the prosecution favoritism” a deep-seated “displayed] 510 U.S. States v. United (Liteky fair judgment impossible.” [a] claims result, As a defendant 1147, 1157, 474].) 127 L.Ed.2d S.Ct. Fifth, Sixth, Eighth under rights his constitutional trial court violated United States Constitution. Amendments and Fourteenth error, failed object claims many As with prior Fudge, review. (People issue for appellate thus failed preserve misconduct by claim of judicial preserve at p. Cal.4th supra, [must us, find no before we issue Assuming properly at trial].) objecting misconduct. judicial counsel when defense here came challenged
The trial court’s statements Rosenthal, having unsuccessfully Dr. redirect examination of undertook on cross-examina- use questions to the prosecutor’s hypothetical objected ante, not in evidence. (See, pt. to assume facts that asked Dr. Rosenthal tion was the believed tried to use what apparently Defense counsel II.B.2.b.) same tactic:
“BY MR. CANNADY counsel]: [defense district life of the that said Mr. saved the Boyette So if we had a
“Q. report behavior, not antisocial? right, that would be social attorney, “A. That’s correct. know, was out Mr. Boyette And if we that said report you had
“Q. Okay. that would danger, who serious three officers were police there helped behavior, be social right?
“A. That would be. some report I unless there’s object,
“MS. DRABEC prosecutor]: [the that. showing think there’s any.
“THE I don’t COURT: There— “MR. CANNADY: evidence, basically it which is up, no he’s making
“THE COURT: There’s sham, sir. “MS. DRABEC: That’s improper.
460
“MR. CANNADY: Same sham is prosecutor Honor. running, your “MS. DRABEC: Your Honor—
“THE There is no COURT: sham there. Yes, is, Honor,
“MR. your CANNADY: there there’s been no or evidence to— testimony
“MS. DRABEC: Counsel does not I obviously give understand that can basis of fact that I have a faith any good belie in. [f] “THE COURT: In cross-examination she’s The doctor perfectly proper. ’t hasn said at all. really anything decide,
“MR. CANNADY: That’s for the your Honor.” jury (Italics added.)
“When ... the trial court in making discourteous and persists remarks to defendant’s disparaging counsel and witnesses and utters comment from which the frequent may that the testi jury plainly perceive of the is mony witnesses not believed and in other judge, ways defense, discredits the cause of the it has transcended so far beyond pale of judicial fairness as to render a new trial v. Mahoney necessary.” (People 618, 201 (1927) 607]; Cal. 627 P. also v. Fudge, see People supra, [258 Cal.4th at p. Mahoney with quoting approval.) Although contends the trial court’s respondent comments were because permissible ” “accurate, were they fair’ temperate, comment on ‘scrupulously evidence v. Melton Cal.3d Cal.Rptr. 750 P.2d we 741]), “he’s it disagree. By stating making which up, a sham” basically all,” doctor hasn’t really anything said “[t]he trial court’s comments have to the might suggested defense counsel jury were in misconduct and that Dr. Rosenthal’s was engaging testimony be believed.
Nevertheless, we no judicial find misconduct. “he’s it By stating, making the court was to the basis up,” referring of defense counsel’s questioning, which was no there evidence defendant saved the clearly hypothetical, being Moreover, district attorney’s life. understood this. jury undoubtedly evidence counsel was elicit from the was not attempting witness particu- counsel seemed more intent on for the larly important; illustrating why court its on the incorrect. previous ruling prosecutor’s was hypothetical questions noted, As from the latter cured instruc- any prejudice jury by special tion that the informing had failed evidence jury present any of other crimes. *71 at anything said really hasn’t doctor that court’s exclamation
The “[t]he itself: the witness the court’s questioning immediately clarified all” was saying? is that what you’re young diagnose, too “THE COURT: He’s disorder, you a classically personality diagnose To “THE WITNESS: . . . do that adolescence. R|] can’t really fl[] make that diagnosis? cannot saying you yourself “THE COURT: You’re I “THE won’t. WITNESS:
“THE Or will not. COURT: that diagnosis.” I would not make
“THE WITNESS: and the trial his context, then, testimony, it is clear the witness clarified In all”) said really anything “hasn’t court’s statement witness (that personality that the witness had not made merely diagnosis meant misconduct, we defendant’s no also judicial reject disorder. Because we find and a to a fair trial right he denied his constitutional further claims that was determination. reliable penalty
4. Excusal Juror No. 9 who jurors
Following argument suggesting the prosecutor’s ante, but pt. II.B.2.e.), prior felt unable to continue could be excused (see and asked to Juror No. 9 came forward closing argument, defense counsel’s First, his he He reasons for conflicting request. be excused. somewhat gave is, admitted he said: “The problem he had made mind. Then already up stated, made mind also “I haven’t make on either side.” He my I cannot up said, “I can to me not then my acceptable,” mind that either choice is up mitigating be able to [weigh see at some level that I should logically at this I’m point, choices available me evidence], but the aggravating with, not clear either choice because I’m not—I’m having problem [a] to, but him judge said would continue if the trial wished He he appropriate.” seem asked, jurors there and fellow go my it be fair me up “Would be no and then there would and I’m bent another bent on one way ex mind, He further my maybe?” I made already conclusion because up of the “Sir, is that since because essentially, I’m saying, what plained: sense of have reached a days, subjective the last I evidence presented couple raising my have tied it to some of my experiences defendant’s and I past the con reaching time being—objectively son. I would have hard own [a] objec a difficult time being he “would have clusion.” When asked whether in the he answered mitigation,” versus tive weighing aggravation affirmative. He stated several times he could remain objective. stated, “I believe record’s clear crystal cannot delib- .” erate . . . voir counsel, After brief dire by defense the trial court excused juror.
Defendant did not and thus failed object the issue for preserve appeal. Sanders 11 Cal.4th fn. (1995) [46 420]; 905 P.2d People 932, 987, v. Ashmus 54 Cal.3d fn. 16 *72 112, issue, 820 P.2d Cal.Rptr.2d 214].) we reach the we Assuming may find noted, ante, no II.B.2.e., abuse of discretion. As in part section 1089 sets forth the for a It procedure removing sitting juror. in provides pertinent part: at “If time a . . . any juror ... . . . upon good cause shown to the court is found to be unable to his or if perform a a duty, juror requests discharge and therefor, cause the good appears court order him be may to and discharged draw the name of an alternate . . . .” We recently that explained a we review trial court’s determination to a discharge juror by an applying abuse of discretion standard and will that decision if uphold there is substan- tial evidence it. We also a supporting require to juror’s inability as perform “ ‘ ’ ” a juror to in the as appear record “demonstrable v. reality.” (People 466, Cleveland 25 Cal.4th (2001) 313, 474 Cal.Rptr.2d 1225]; 21 P.3d [106 441, 295, v. People Williams 25 Cal.4th 448 (2001) Cal.Rptr.2d 21 P.3d [106 1209].)19
We find the court did not abuse its discretion. Juror No. 9 made
clear he no
could be
he
longer
objective.
understood
role
Although
as a
was to
juror
weigh the aggravating
evidence,
evidence
the
against mitigating
that
explained
emotional connections
the
between
evidence
penalty phase
and his own
with his son
relationship
convinced him to vote a certain way
before he heard the defense
He
closing argument.
also
that
suggested
19defendant
People
v. Collins
cites
(1976)
older cases such as
Cal.Rptr.
discussion to a shows The record thus sincerity. the juror’s trial court assessed objective no remain longer could that Juror No. 9 reality demonstrable thus There was an mind. to keep open the trial court’s instructions follow No. 9 Juror discharge court’s decision evidence supporting substantial seat an alternate juror.20 Closing Argument 5. Restriction Alleged defendant would argument suggesting Following prosecutor’s of parole, the possibility life in without prison kill if sentenced to again security conditions maximum argue counsel attempted defense have a Thus, counsel “I began: unlikely. make future violence would prisons Pelican Bay probably runs Bay friend that Pelican Prison]. [State that there was no ground objected maximum—” sustained the objection. The trial court agreed about the prison. evidence *73 to rebut the to defense counsel Defendant contends the court’s refusal permit argument with dangerousness future argument concerning prosecutor’s of a maximum be in the confinement dangerous defendant would not a to due rights process, denied him his federal constitutional security prison trial, (U.S. and individualized determination. penalty fair and reliable 6th, Const., 5th, & 14th Amends.) 8th v. Carolina 476 (1986) the extent defendant relies on South
To Skipper 1669, entitled to have jury 1 90 L.Ed.2d defendant U.S. S.Ct. (capital [106 1] from argue to was prevented consider relevant any mitigating evidence) we to the of future dangerousness, evidence rebut assertions presenting He not the because the is flawed. was argument prevented reject premise evidence, argu but was from introducing merely presenting from prevented Further, was based to because counsel’s argument ment that effect. proposed record, did discretion in trial not abuse its evidence outside the the court on closing right argument The to prosecutor’s objection. present sustaining trial, in “is not un of broad scope, at the while penalty phase capital time ; reasonable impose . . trial court retains discretion to bounded . the mark.” does from stray unduly and to ensure that not argument limits to state at It is Marshall, 854-855.) improper 13 Cal.4th pp. v. (People supra, or are notice evidence, subject judicial unless such facts were facts in drawn from experience, or illustrations knowledge “matters of common 888, v. 47 Cal.3d 922 literature.” Farmer history, (1989) or [254 in ground People on another 940], 765 P.2d overruled Cal.Rptr. subsidiary discharge reject claims legal grounds juror, we also defendant’s 20 Finding trial, a fair rights process, to due discharge denied him his federal constitutional liberty to a interest. jeopardy, double and state-created freedom from 464 690, 724, 22 Waidla Cal.4th fn. P.2d 46].) [94
The conditions security Pelican State Prison fall into none of these Bay categories. Finally, reject we the claim that was defendant entitled to pursue line this of because argument argue allowed to future dangerousness. in this prosecutor’s argument regard was based on the case, of the namely facts the evidence ex showing mercilessly victims, ecuted defenseless and was thus no permissible. We find constitu tional violation.
6. CALJIC No. 8.88 Defendant next claims No. CALJIC 8.8821 unconstitutional for a variety of reasons. He admits we have rejected all these claims in cases prior asserts he is raising them this court to exhaust his state remedies to permit him renew these claims federal court. (See, Rose v. e.g., Lundy (1982) 455 U.S. S.Ct. L.Ed.2d We none agree of 379].) claims has merit and that no reason reconsider our appears decisions. past We list defendant’s claims here to ensure a future court will consider them exhausted: fully 8.88, jury, provided: 21CALJICNo. as read to the “It your duty is now to determine which penalties, of the two prison possibility death or confinement in the state for life without parole imposed shall be having defendant. After all heard of the evidence and [^[] counsel, having arguments consider, heard you and considered shall take into account guided applicable aggravation be mitigating factors upon circumstances you fact, condition, which aggravating any have been instructed. An factor is or event [][] attending the guilt commission of crime enormity which increases its or or adds its *74 injurious fact, which, consequences. [f| mitigating any A is circumstance condition or event such, justification as does may not constitute a or for the question, excuse crime in but be extenuating determining considered as an in appropriateness circumstance the of the death penalty. weighing aggravating mitigating of and circumstances mean does not a mere [1[] counting scale, mechanical of imaginary arbitrary factors each side of an the assignment or weights of any assign of them. You are sympathetic you free whatever or moral value appropriate you deem to each all of the various factors are permitted to consider. In [H] circumstances, weighing you the various determine under the penalty relevant evidence which justified is and appropriate considering totality aggravating the of the circumstances with totality mitigating you the fl|] of the mitigating circumstances. If should find that the circumstances, outweigh aggravating you circumstances the return con must a sentence of prison possibility finement the state for life the parole. [^|] you without of If find the that aggravating mitigating minds, relatively you circumstances are of value equal your must return a of prison possibility sentence confinement in the state the parole. H|] without of you aggravating outweigh circumstances, If find that the mitigating you the circumstances may you return a sentence of death or may imprisonment return a sentence of life the without But, possibility death, parole. judgment of in order you to return a each of be must
persuaded aggravating that the are comparison circumstances so substantial in with the mitigating it parole. circumstances that death of life warrants instead without You shall [1J] your foreperson now retire and one to act preside your select number as who will over In penalty, jurors agree. Any deliberations. order to make determination as the 12 all must you that signed by your verdict reach must be dated and foreperson on a form that will be provided you and then shall return with it to this courtroom.”
465 — to consider to direct the failing jury faulty The instruction defendant’s determining sentence when life Antoine Johnson’s coperpetrator 628, 1198, Cal.Rptr.2d 1251 2 Cal.4th (1992) v. DeSantis (People [9 penalty. 831 P.2d 1210].)
— vague substantial” is “so use the phrase The instruction’s v. (People the United States Constitution. the Amendment to violates Eighth 345, 224]; P.3d 557, 51 Cal.Rptr.2d 28 Cal.4th 662 Gurule (2002) [123 324, 28 398, P.3d 452 Cal.Rptr.2d 26 Cal.4th v. Ochoa People (2001) [110 78].)
—
it misleads
is so overbroad
of the term “warrants”
The instruction’s use
concludes
even when it
it
the death
impose
penalty
to believe
jury
may
281,
1
316
v.
Cal.4th
(1991)
Breaux
(People
it is not the appropriate penalty.
81,
— has burden of specify prosecution The instruction fails Jackson, 1244.) 13 v. Cal.4th p. persuasion. (People supra, — reasonable to find beyond fails to jury The instruction require and that ones mitigating that the factors aggravating outweigh doubt 72, 51 Cal.3d (1990) v. Stankewitz death is appropriate penalty. 817, 793 P.2d 109-110 Cal.Rptr. 23].) [270
— find which jury unanimously fails to The instruction require 22 v. Jenkins People (2000) are true. (See, e.g., circumstances aggravating [unanimity P.2d Cal.Rptr.2d Cal.4th 1044] [95 required].)
— a statement of reasons supporting fails The instruction require 349, 381 death verdict. Cal.4th (People Kipp P.2d 1169].) Law Penalty to Death Challenges 7. Constitutional *75 state’s death law several claims that our penalty Defendant next raises his to due citing rights and “in its formulation application,” unconstitutional a and reliable nonarbitrary penalty liberty, equal protection, process, the under cruel and unusual determination, punishment and to be free of Constitution. to the United States Fifth, and Fourteenth Amendments Eighth cases, so and do again these claims in we rejected He we have prior admits Defendant our decisions. prior reason to reconsider here, he states no finding it: because law is unconstitutional the death penalty claims 466
— Fails to for provide intracase review. the proportionality To extent defendant claims the law must allow for a his comparison between punish- Johnson, and ment that of Antoine in crime who claims partner sentence, received a 1153, life we v. Riel 22 disagree. (People (2000) Cal.4th 1, 1223 998 Cal.Rptr.2d P.2d 969].)22 [96
— Fails to which be designate factors should considered aggravating which be should considered v. 21 mitigating (People Carpenter (1999) 1016, 607, Cal.4th 1064 988 P.2d an uses 531]) “ ” undifferentiated list’ of ‘unitary factors sentencing permitting jury discretion complete Bolin, a v. impose 18 at penalty (People supra, Cal.4th p. 341).
— Treats absence of a factor as mitigating aggravating (Weaver, 26 Cal.4th at supra, p. 993), because the law especially asks jury consider “whether or not” certain are mitigating factors v. present (People Bolin, 18 at Cal.4th supra, p. 342).
— Permits the consideration nonstatutory aggravating factors. (Weaver, 993; 26 Cal.4th at supra, see v. p. People Boyd, 38 at supra, 775.) Cal.3d p. — Fails to require jury to find that the factors aggravating outweigh ones, and that mitigating death is the penalty, appropriate beyond reasonable doubt. (Weaver, 26 Cal.4th at supra, p. 992.)
— Fails to a burden of impose proof for the penalty phase. (Weaver, 26 at Cal.4th supra, p. 992.)
— Fails to require to find the
jury
existence of an aggravating factor
unanimously
beyond reasonable doubt before
it. (Weaver,
considering
26 Cal.4th at
supra,
not
p.
[unanimity
required];
People Kraft, supra,
— Fails to require written findings. (Weaver, supra, Cal.4th p. 992.) — Fails to inform the it need not be jury unanimous in relying on Weaver, mitigating circumstance. (See Cal.4th at supra, p. [standard instruction reasonably not to the susceptible interpretation unanimity consideration required mitigating factors].) penalty 22To the extent defendant contends death right law violates his constitutional equal protection guarantee because it disparate does some sort of sentence review that was past given noncapital 1170, Sentencing (§ convicts under Determinate Act former (f) 2210), subd. as amended Stats. p. disagree. ch. we (People v. Keenan § *76 478, 550, (1988) 46 Cal.Rptr. Cal.3d 545 1081].) 758 P.2d [250
467 — a mitigating as justification of moral Prevents the full consideration the factor with 190.3, phrase by qualifying factor (f) factor under section Jenkins, 1055.) Cal.4th at p. v. 22 supra, believed.” “reasonably (People — a mitigating as of mental disturbance the full consideration Prevents under a factor 190.3, and duress as mitigating factor (d), factor under section term “extreme.” 190.3, both factors with the (g), by qualifying section factor 26 Cal.4th at (Weaver, p. 993.) supra,
— 26 terms, v. “extreme.” (People Kipp (2001) Uses such as vague see 450]; 33 P.3d Blystone Cal.4th [113 1078, 1084, 108 L.Ed.2d S.Ct. 494 U.S. Pennsylvania (1990) not death statute penalty “extreme” in Pennsylvania word [use 255] unconstitutionally vague].)
— 190.3, or not (“Whether section factor “impaired” (h) Uses term at of the defendant appreciate the time of the offense capacity requirements of his or to conform his conduct criminality conduct defect, or the affects of as a result of mental disease or law impaired crime. v. Mar- the illness caused the intoxication”), suggests which 190.3, shall, “the 13 Cal.4th at factor supra, p. (h) apply, [for § to the it not to establish a defense evidence need suffice supporting complete rather, to the crime; there need in the record some evidence relevant only be factor”].)
— for the death eligible Fails to narrow the class of those rationally (Weaver, 26 Cal.4th penalty. supra, p. 992.) — when to deciding charge Gives “unbounded” discretion in prosecutors a as Cal.4th at (Weaver, p. 992.) murder case case. capital supra,
—
8. Cumulative Error of the contends reversal because required
Defendant finally It is that occurred in his trial. cumulative from all errors arising prejudice errors, and this case is trial find some not unusual in complicated capital noted, find the trial court should have excused Prospective As we typical. cause, of Marcia questioning K.C. for and it limited the Juror improperly defend commented on Surrell. We also find the should have addition, ques hypothetical ant’s courtroom demeanor. In the prosecutor’s assaults, final victim, alleged Carter’s tions assault involving prison White *77 468
words, and defendant’s knife on his alleged assault were im- grandfather as her proper, were statements in closing argument the penalty phase she had additional evidence suggesting aggravation that she had not presented and defendant should have taken stand to remorse. express Most minor, of these were and none was missteps itself. prejudicial by We also find that the effect combined of these errors was harmless and that did otherwise endure an trial. unfair
III. Conclusion
The is judgment affirmed in its entirety. J., Baxter, Chin, J., J., J., J., C.
George, Brown, Moreno, concurred. KENNARD, J. I dissent. case, selection
During in this death jury the defense penalty objected exercise of prosecution’s peremptory challenges against four African- women, American asserting that were challenges discrimi- purposefully on the basis of the natory jurors’ gender. race The trial court prospective said it did not think a facie case had been shown and asked prima prosecutor if she wanted to her The explain challenges. prosecutor responded she had challenged these jurors because she prospective thought they could not vote for the death then trial court ruled on the penalty. objection, with these words: “As I don’t I think a facie say, case has been shown. prima I have to agree would with the district on her of the attorney challenges H[] four women, Black African-American that I did not believe were they who would vote persons for the of based penalty death their upon question- naires and their [during answers voir dire].”
The use of
peremptory challenges
eliminate prospective jurors because
of their
or gender
race
by the federal Constitution
E. B.
prohibited
(J.
v.
127,
Alabama
rel T.B.
1419, 1421-1422,
ex
511 U.S.
(1994)
129
S.Ct.
[114
89];
128 L.Ed.2d
400,
1364,
Powers v. Ohio (1991) 499 U.S.
409
S.Ct.
[111
1369-1370,
Here, question” asserts that majority “dispositive ante, opn., case of bias.” group (Maj. demonstrated facie prima a race- has offered “Once a wrong. prosecutor at p. 422.) majority trial has and the court challenges for the neutral explanation peremptory discrimination, of the preliminary on the ultimate intentional question ruled becomes showing made a facie of whether the defendant had prima issue York, 1859, 352, 359 500 U.S. S.Ct. (Hernandez moot.” v. New supra, [111 Here, gave a race-neutral of (plur. opn. Kennedy, J.).) prosecutor 1866] of the four challenges for the gender-neutral peremptory explanation she these thought women. The said prospec- African-American then on The trial court ruled tive could not vote for death jurors penalty. “I The trial court said: would the ultimate issue of discrimination. purposeful four Black on her of the attorney challenges have with district agree I who women, they did not believe were persons African-American their based their would vote for the of death upon questionnaires penalty renders This on ultimate [during ruling question answers voir dire].” made a facie prima moot the whether defendant had question preliminary case. facie case is
In of its assertion that the existence a prima support issue, court holding decisions of this majority relies earlier dispositive that a facie case has that when a trial court has found expressly prima is not ren- shown, the initial showing been the defendant’s sufficiency has that the dered moot the trial court’s later determination prosecution v. 20 (1999) Welch race-neutral supplied genuine explanations. 701, 203, 754]; v. Mayfield 746 P.2d Cal.Rptr.2d People Cal.4th 976 [85 v. 668, 1, 485]; P.2d People 928 Cal.Rptr.2d 14 Cal.4th 723 (1997) [60 137, 762, 521].) 878 P.2d 8 166-167 (1994) Turner Cal.4th [32 in weight authority are contrary overwhelming But these decisions v. issue law. Stubbs jurisdictions (See other on this of federal constitutional 1099, 1104; 1994) Cir. Cir. F.3d U.S. v. Sneed (9th 1999) (10th Gomez 189 797 So.2d 1570, 1579-1580; 2000) 34 F.3d Smith v. State (Ala.Crim.App. 82; v. 503, 79, 522; People 935 P.2d 1996) v. Davis People (Colo.Ct.App. 475, 771, 328, 335 Ill.Dec 696 N.E.2d Martinez 297 (1998) Ill.App.3d [231 99; 95, v. Koo v. 640 N.E.2d State 775-776]; 1994) State (Ind.Ct.App. 1103, 1111; v. State (Miss. Durham 673 So.2d Manning (La.Ct.App. 1996) 1152, 1182-1183, overruled on an unrelated point 726 So.2d 1998) 158, 162; v. White 732 State v. State So.2d (Miss. 1999) Weatherspoon 470 942, 950; 835 S.W.2d 1992) v.
(Mo.Ct.App. People Dalhouse (1997) 420, 408, A.D.2d 420-421 410]; N.Y.S.2d State v. Williams (2002) [658 501, 609, N.C. 550-551 638-639]; S.E.2d v. Neill State [565 537, 546, 4; 896 P.2d fn. (Okla.Crim.App. 1994) State v. Ruiz-Martinez P.3d Or.App. 148]; Malone State 919 S.W.2d (Tex.Crim.App. 1996) 412.) This court has never this issue reconsidered of federal constitutional law of these light conflicting decisions from other These deci- jurisdictions. *79 sions me that when the court persuade trial has heard the reasons for the and ruled the challenge on ultimate peremptory of intentional question discrimination, a court reviewing should concern itself with whether a demonstrated, facie case has been prima of the regardless or presence absence of an finding on the existence of express Instead, facie case. prima the court should reviewing proceed to review the trial court’s on ruling the ultimate I review the question. Accordingly, ruling trial court’s that the did not prosecutor discriminate in the exercise purposefully of peremptory challenges.
Here, in trial the court’s on reviewing ruling the question purposeful discrimination, it is not to consider each of the necessary four African- American women because exclusion of a by peremptory challenge “[t]he on the single juror basis race or ethnicity an error of constitutional magnitude requiring reversal.” Silva Cal.4th Here, 21 P.3d the trial court erred in the 769].) denying defense motion at least as to Juror B.W. Prospective in the of voir
Nothing transcript dire the assertion supports prosecutor’s that B.W. could not return a death verdict. As the majority acknowledges ante, (maj. at 422), B.W.’s dire those opn., p. responses voir were of a person who was voting death open penalty. impose court,
On voir dire by the trial B.W. reaffirmed statements she made on her that she was in questionnaire “moderately favor of the death penalty” ballot, and that it “if were on the would for vote proposition [she] California should have a death Under voir the court, further dire penalty.” by that, she said on the introduced at the depending evidence she penalty phase, could vote for the death in a case in which defendant was penalty guilty of two counts of degree first murder with also multiple-murder perhaps lying-in-wait circumstances. that in a case special She affirmed such she could vote for the death if concluded she it was based on penalty appropriate circumstances. weighing aggravating mitigating
The whether, asked B.W. on dire “if death voir felt was [she] morally she she could down in court at appropriate,” thought open “com[e] a verdict that and announce the other jurors” of the case with the conclusion answered, executed, Mr. B.W. “Yes, Boyette”? you I vote to have would be she would issue of penalty in deciding agreed “Yes.” She also in and circumstances background of defendant’s mitigating aspects consider facts of the crime. including aggravation observes, of her answers on questionnaire, one majority As “noting death some with the penalty” B.W. “expressed impatience ante, row.” (Maj. opn., p. on death spend of time some inmates length thought juror whether the prospective The asked questionnaire 422.) seldom,” or “about often,” “too “randomly,” “too imposed death penalty “Look at death row. this “randomly,” circled with right.” explanation: B.W. if row death You shouldn’t have death have been waiting years. People never comes.” would consider a awhy prosecutor prospec- never majority explains to be out death sentences carrying
tive with juror’s delays impatience this be for a death sentence in that the would reluctant to vote juror evidence *80 the in favor of death moderately strongly other case. Persons or or any it, be most likely not reluctant to would persons impose express penalty, the did not in executions. delays Significantly, prosecutor with impatience during voir dire. ask about this questionnaire response B.W. nor the trial court that “neither the prosecutor also asserts majority ante, at value.” at (Maj. p. to take the answers face jurors’ opn.,
was required the court said that answers the nor trial B.W.’s But neither 422.) prosecutor or demeanor. On or belied her facial expressions were not credible were about the chal- the trial said it reached its conclusion contrary, the court their and their views “based lenged questionnaires death jurors’ penalty upon not infer that reviewing may peremptory voir A court [during answers dire].” the prosecu- a demeanor when jurors’ were based on challenges prospective (Turner v. Cir. (9th 1997) Marshall tor never articulated that justification. 1248, 121 1254.) F.3d a reason for nondiscriminatory has a prosecutor given facially
When discrimination turns issue of challenge, purposeful the ultimate peremptory the court has trial explanation, on the of the credibility prosecutor’s Silva, v. supra, credibility to make that determination. duty (People the record so, court consider whether at In must doing Cal.4th p. 385.) in the record are the facts stated reason. “Where prosecutor’s supports statements, about serious questions to the objectively contrary prosecutor’s chal- exercising reasons for peremptory of a prosecutor’s legitimacy one or more a prosecutor’s The fact that are raised. lenges [Citations.] justifications do not hold under up judicial scrutiny militates against of a sufficiency (McClain valid reason.” v. Cir. Prunty (9th 2000) 217 F.3d 1209, 1221.)
trialA court “should be suspicious when with reasons that are presented Silva, or unsupported implausible.” otherwise v. supra, Cal.4th situation, In 385.) this trial court should out p. inconsistencies and point ask probing to determine whether the or questions stated reason is genuine Here, because B.W.’s pretextual. juror answers and voir dire questionnaire no responses little or for the provided support assertion that prosecutor’s she would have for a voting sentence, death the trial difficulty court had a duty further, further, but it not. Had the inquire did court inquired prosecu- tor have might some additional given a sufficient response basis providing that her stated reason concluding was rather than genuine pretextual. “ Because the trial not make court did ‘a sincere and reasoned attempt ” evaluate the prosecutor’s explanation’ v. (ibid, Hall quoting People 161, 35 Cal.3d 167-168 672 P.2d Cal.Rptr. 854]), never afforded that opportunity. Because the stated prosecutor’s reason for B.W. is challenging fairly record, supported by and because the trial did not court further probe find a for this satisfactory court’s explanation discrepancy, credibility determination is not and the fairly supported by record court erred denying error, defendant’s as to motion Juror B.W. Prospective this Through defendant was denied the to a right fair trial in violation of the equal clause of the protection federal Constitution (Batson Kentucky, supra, *81 U.S. 84-89 S.Ct. and his under 1716-1719]) right the state Constitution to a trial jury drawn from a cross-section representative Wheeler, the community Cal.3d supra, 276-277). For these violations, constitutional I would reverse the judgment. Appellant’s for a was petition rehearing February denied and the Kennard, read as opinion J., modified to printed above. was of the that the be opinion petition should granted.