Lead Opinion
Defendant Michael Lamar Bramit was sentenced to death after a jury convicted him of first degree murder and found that he personally used a firearm in the commission of the crime. The jury also found true the special circumstance that the murder occurred in the course of a robbery.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
Defendant does not contest the facts pointing to his guilt, nor did he do so below.
Around midnight on June 14, 1994, victim Fierros parked at a minimart in Banning, where two prostitutes separately propositioned him. However, after Fierros drove each of them away from the parking lot, he said he had no money and returned to the minimart with them.
Another prostitute, Rebecca Johnson, then got into Fierros’s car. As they drove away, defendant and Anthony Miller, both of whom Johnson knew from previous drug transactions, ran toward the car and yelled at her. When Fierros stopped, defendant and Miller got into the backseat. Defendant put a gun to Fierros’s head, saying, “If you move, I’ll blow your fucking head off.” As Miller rifled through Fierros’s pockets, defendant hit Fierros in the head with the gun. Fierros struggled as defendant and Miller continued to beat him. Finally, Miller told defendant, “Man, shoot this fool. He ain’t got no money.” Whereupon defendant shot Fierros and left him to die in the street.
Two other witnesses saw the shooting and heard Fierros beg for his life as defendant demanded his money. An autopsy established that Fierros died from a gunshot wound to his chest, and had been badly beaten on the head.
After waiving his Miranda
Defendant also claimed that he had been angry at his mother and had vented his displeasure on Fierros. His mother was a crack cocaine addict whom he had been trying to reform, so that she could “be there” for him and his siblings. That day he had caught her using drugs again. Shooting Fierros was defendant’s way of “dealing with family problems.” He had not intended to kill Fierros, but Fierros “was in the wrong place at the wrong time when my homeboy was taking care of his business.” During a recess, defense counsel, noting that the audiotapes of defendant’s statements were being played for the jury, stated that he wished the record to clearly reflect that he was not objecting to their admission, either on voluntariness grounds or “possible Miranda violations.” The court inquired, “You believe tactically that it benefited your client?” Defense counsel responded, “Yes.” The court and counsel were apparently referring to the fact that defendant’s extrajudicial statements permitted counsel to attempt to mitigate his guilt without subjecting him to cross-examination.
Defendant did not present evidence in the guilt phase.
1. Prosecution Evidence
a. Victim impact testimony
Evangelina Lozoya lived with Fierros for seven years before his murder. He was the father of her daughter Eva, and filled a paternal role for her other five children. His death affected the entire family. Eva Lozoya, age 10, testified the death made her “feel bad.” Fierros was the only person that William Lozoya, age 14, knew as a father, and they enjoyed a good relationship. William testified the family was “no longer happy without him.” Corine Lozoya, age 16, described Fierros as a “good father.”
The victim’s father and two of his brothers also testified to the impact of his death. Fierros was bom in Morelito, Mexico, and was one of seven siblings. The impoverished family lived in a one-room house, worked in the fields, and supplemented their income by making sombreros. Fierros was very good to his family. He came to the United States to earn money to pay for his mother’s medical bills. The entire family mourned his death. His father felt “that the sky and the earth closed upon me.”
b. Evidence of defendant’s other crimes
i. Juvenile offenses
In 1988, when defendant was 12 years old, he admitted to a deputy sheriff that he and another boy had placed two BB pistols in another student’s locker. In 1991, defendant tried to punch another student. Instead, he hit a campus supervisor who was trying to separate the youngsters. Also in 1991, defendant and another teenager demanded a pizza that Gerardo Laura was delivering. When Laura refused, the boys said, “What if we hit you?” Frightened, Laura handed over the pizza.
ii. Assault on his mother
Kathryn Cole was called by the prosecution as an adverse witness. Before trial she told a district attorney’s investigator that in 1993 she had seen defendant argue with his mother and strike her in the mouth. At trial
After Fierros’s murder, defendant remained at large for 10 months. During this time he committed eight bank robberies and tried to commit a ninth.
iii. Robbery of Riverside National Bank
Defendant pleaded guilty to the August 19, 1994, robbery of a Riverside National Bank branch. Defendant pointed a pistol at teller Tina Paul and screamed that he would kill her unless she gave him her money. Paul pleaded that she had no money in her cash drawer, but defendant continued to scream that he would “blow her fucking head off.” Teller Patricia Calvert recognized Paul’s plight and gave defendant $5,187 from her drawer. Paul and Calvert identified defendant. Robert G. Chapman, a special agent with the Federal Bureau of Investigation, testified that defendant admitted the robbery, but denied using a gun.
Ms. Paul testified to the lasting impact this experience had upon her. “After it happened, I was afraid to be home alone. Noises that I heard, people just playing in the street or whatever made me remember.” She continued: “I can’t hear loud notices [szc], Sometimes like my sister will be downstairs and if she makes a loud noise it makes me jump, because I don’t know what’s happening.”
A customer, Virginia Rodriguez, also testified to the lasting impact of the incident. Mrs. Rodriguez was in the bank with four of her children. Her husband was parked outside with their other two children. The two robbers were Black men, who pointed guns at everyone. Mrs. Rodriguez tried to leave, but one of the robbers stopped her. Mrs. Rodriguez and her children, ranging in age from nine to 16, were very frightened. She became even more concerned after the robbers fled because she could not initially find her husband and feared that he had been taken hostage. “It just affected me a lot—because people who are black, I don’t have as much confidence in them. Sometimes I see black people near me and I move away from them because I think it’s bad.”
iv. The first Bank of America robbery
Defendant also pleaded guilty to the September 9, 1994, robbery of a Bank of America branch in Corona. He threatened to shoot teller Edson Lalone
Mr. Lalone saw a psychologist after the robbery, and was afraid that defendant would “come back after me.”
v. Attempted robbery of Riverside National Bank
Defendant pleaded guilty to the attempted robbery of a second branch of the Riverside National Bank, again accompanied by Latrina Howard. When defendant told teller Elena Satalan he was robbing her, she explained that she did not have her cashbox because she had been working at the drive-up window. Defendant said, “I have a big fucking gun and I’ll blow your fucking head off.” The standoff continued for several minutes before defendant and Howard fled.
Ms. Satalan was scared “[e]ven now.” She still worked at the bank, but found it frightening to do so.
vi. Robbery of the Chino Valley Bank
On January 9, 1995, defendant robbed the Chino Valley Bank. Defendant asked teller Rita Lambert to change a $50 bill. When Lambert opened her cash drawer, defendant lifted his shirt, displaying a gun in his waistband, and demanded all of her money. He fled with $2,950. Lambert and another teller identified defendant.
Ms. Lambert had worked at the bank for six years, but no longer did so. She had been present during other robberies, but said this one “hit too close to home.” She added: “I didn’t realize it until now, and I hate that I feel this way, but I get very uptight and nervous when I see somebody [who] is young and black.”
vii. The second Bank of America robbery
On January 17, 1995, defendant robbed another Bank of America branch. Saying he had a gun, defendant pushed a brown paper bag at teller Jenny
According to Ms. Franco, the robbery “changed my life.” On the one hand, it made her “more grateful for each day ’cause you never know what someone can do to you.” On the other hand, she suffered from “paranoia” whenever customers approached her window. She felt compelled to continue working at the bank until she completed her schooling.
viii. Robbery of City Bank
On February 16, 1995, defendant took $1,671 from City Bank, saying to the teller: “This is a robbery. Hurry up or else I’m going to kill you.” The teller identified defendant, who also admitted the robbery to Agent Chapman.
ix. Robbery of Rancho Bank
On February 22, 1995, defendant robbed a Rancho Bank branch. Teller Melissa Duke saw defendant at Lisa Johnson’s window. He kept looking around the bank as Johnson emptied her excess cash drawer. Duke set off the alarm shortly before defendant took $5,920. Defendant was identified by Duke, and admitted the robbery to Agent Chapman.
x. Robbery of Union Federal Bank
Two bank employees tentatively identified defendant as the robber of a Union Federal Bank branch on March 13, 1995. The robber asked teller Sheva Abidian to change a $20 bill, but then demanded all her large-denomination currency. Abidian gave him $1,607. Branch financial manager Stuart Sprenger saw the robber leave the bank. Asked whether defendant was the robber, Abidian testified that he “could be,” and Sprenger said he “believed” so.
xi. Robbery of Sanwa Bank
On April 7, 1995, defendant robbed a Sanwa Bank branch. After asking teller Anthony Deku to change a $20 bill, he took out a sack and demanded that Deku fill it with cash. When Deku hesitated, defendant, who had his left hand in his pants pocket, said, “you better fill it up, Brother, or I’ll shoot you.” Defendant left with $2,711. Deku failed to identify defendant in court. However, two other tellers identified defendant before and during this trial. Moreover, defendant admitted the robbery to Agent Chapman.
Latrina Howard, defendant’s girlfriend and accomplice in two of the bank robberies, testified pursuant to a plea bargain. Defendant often hit Howard and pulled a gun on her approximately 20 times. During an argument over what to watch on television, defendant pointed a pistol at Howard’s brother. On another occasion, Howard had to talk defendant out of shooting her brother-in-law. He desisted when she pointed out there were witnesses.
xiii. Witness intimidation
After they were arrested for the bank robberies, defendant called Howard, who had been released from custody, and warned her that he had “ways of getting people whether they in jail or not.”
Defendant and Rebecca Johnson, the woman with Mr. Fierros when he was murdered, were in adjacent holding cells awaiting trial proceedings. Defendant threatened to kill her when he was released from prison. Anna Garcia was also in the adjacent cell. Defendant told her to warn Johnson “to shut her mouth because [he] would take care of her,” that “if she ever made it out she wouldn’t make it on the street.” Garcia conveyed defendant’s threat to Johnson.
During trial, Latrina Howard participated in a three-way telephone conversation with defendant and his brother. The two men said they were “going to do something” to a witness who had testified against defendant.
2. Defense Evidence
Denise Carr, defendant’s mother, testified that she had a single encounter with his father. Defendant never met him and had no other father figures. Ms. Carr did not consume alcohol or use drugs while she was pregnant with defendant, but did so persistently from the time he was 11 or 12. While defendant was growing up, Ms. Carr and her children lived in more than 10 residences belonging to friends or relatives. Defendant looked up to an older boy involved in drug dealing and gang activity. When defendant was 16, Ms. Carr became aware that defendant was selling crack cocaine. Contrary to prosecution testimony (see ante, at pp. 1227-1228), defendant had not assaulted Ms. Carr on the occasion she called police. Instead, he had grabbed her after she hit him. Defendant was not responsible for her facial injury.
Vemita Lynch, defendant’s maternal aunt, testified that she loved defendant and was a “mother figure” to him. Beatrice McClain, defendant’s maternal grandmother, testified that she provided a home for him and his siblings for two years when his mother was using drugs. After defendant left, Ms. McClain continued to see him almost daily and loved him very much. Both women testified that defendant’s execution would be painful for them.
Lakeshia Cook, defendant’s sister, testified that she loved him because he had “always been there for me when I didn’t have a daddy.” With no father and a drug-addicted mother, defendant “had to steal for me and my brother so we could survive.” His execution would affect her badly.
Bonnie Jackson was another surrogate mother who sheltered defendant and his siblings when their mother was on drugs. She testified that he was “real smart, articulate, and he was always strong, tried to make a good situation out of a bad all the time, because he loved his brother and sister,” and tried to take care of them. Ms. Jackson loved defendant very much and feared that his execution would cause her to have another stroke.
Clyde Stewart, a former corrections officer and parole agent, ran a residential facility for juvenile offenders. Stewart testified that because of the serious records of the boys he accepted, his facility was considered a final alternative to a California Youth Authority commitment. Defendant was confined there for over a year. He was easy to get along with and Stewart grew to like him. Defendant’s execution “would hurt me and make me sad to know that his life ended at such a young age.”
A. Pretrial and Guilt Phase Issues
1. Excusal of a Prospective Juror for Cause
Defendant contends the excusal of Prospective Juror C.S. (C.S.) for cause violated his rights to due process, a fair trial, an impartial jury, and a reliable penalty verdict.
Under Wainwright v. Witt (1985)
C.S.’s responses on the juror questionnaire were somewhat equivocal. On a scale of one to a high of 10, she rated herself a “3” in opposition to the death penalty. In response to another question, she indicated that she thought the death penalty was imposed “too often.” Asked whether her opinion would make it difficult for her to vote for the death penalty, regardless of the evidence, she circled “no.” She also circled “no” when asked whether she was so strongly opposed to the death penalty that she would always vote against death, regardless of aggravating or mitigating evidence.
Asked whether she could impose the death penalty for felony murder, she circled “no.” But when asked whether she would automatically vote for life in prison without possibility of parole, if the killing was unintentional or accidental, she wrote “probably.” Asked whether she could impose the death penalty, depending on the circumstances of the case and the evidence presented in the penalty phase, if the special circumstance of murder in the commission of robbery were proven, she circled “yes,” but again added “probably.”
The prosecutor asked the entire panel of prospective jurors whether they felt that they would be able to return a death verdict and affirm that they had done so. “Finally, there was one question on the questionnaire that asked you as jurors whether or not you could personally sign the verdict as the foreperson in the penalty phase of this case. Now, when you were sitting down in the jury room filling out the questionnaires, that was sort of an abstract thinking process. Now, we’re sitting in the courtroom. There’s a person seated in the courtroom against whom murder charges have been filed and against whom I’m pressing the death penalty. Is there anyone who feels they could not return this if justice demanded it and say, ‘Yes, I voted for the death of this person.’ ” One prospective juror indicated she would be unable to do so. The prosecutor then asked C.S. whether she could, noting that she had in her questionnaire indicated “some concerns.” C.S. responded, “I’m just really not sure. I’ve never been put in a place to make a decision. I think it would just depend on all of the circumstances. It would [be] difficult. I don’t know.”
The prosecutor challenged C.S. for cause. “[S]he indicated she could not say if she could come into a courtroom and vote for death.” The court observed, “She also didn’t say that she was going to do the opposite.” Defense counsel objected, “She was uncertain whether she could—as to the specific question whether she could sign the death certificate, I think that’s a different issue than saying—” The prosecutor responded, “Initially, I asked that question, but at the very end I asked whether or not they could come into the courtroom and state, which they would be required to do if they were jurors, vote for death, and I think I’m entitled to have jurors that say at the outset they could return a verdict for death under the appropriate circumstances. She could not say that. She said she didn’t know if she could do it.”
The trial court excused C.S. Considering her responses on voir dire, as well as her answers to the questionnaire, the court found that her views on the death penalty “would prevent or substantially impair the performance of her duties as a juror in accordance with the instructions.” The court added: “I believe she was trying to be accommodating, but in the final analysis her views are too strong for her to be a fair and impartial observer.”
The trial court’s finding is supported by substantial evidence.
A finding of bias “may be upheld even in the absence of clear statements from the juror that he or she is impaired because ‘many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.’ [Wainwright v. Witt, supra, 469 U.S. at pp.] 424-425. Thus, when there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, is entitled to resolve it in favor of the State.’ Id., at 434.” (Uttecht v. Brown (2007)
Defendant’s reliance on People v. Chacon (1968)
Defendant’s briefing extensively parses C.S.’s responses on the questionnaire and argues that none of them would have supported a finding of impairment. However, unlike the trial court in People v. Stewart (2004)
2. Murder Instructions
An amended information alleged that defendant committed murder with malice (Pen. Code, § 187, subd. (a))
Defendant contends the instructions were erroneous because the information did not charge him with first degree murder. He claims that by the prosecutor’s
Defendant’s argument rests on the premise that People v. Dillon (1983)
In People v. Harris (2008)
“Dillon held that section 189 is a codification of the first degree felony-murder rule. (Dillon, supra, 34 Cal.3d at pp. 471-472.) Because there is only a single statutory offense of first degree murder (see, e.g., People v. Geier, supra,
Defendant also contends that the jury should have been required to agree unanimously on whether he committed premeditated murder or felony murder. This argument, too, has been repeatedly rejected. (See, e.g., People v. Nakahara (2003)
Finally, defendant contends the information failed to allege all the facts necessary to justify the death penalty, mating it defective under Apprendi v. New Jersey (2000)
B. Penalty Phase Issues
1. Evidence of Violent Juvenile Misconduct
Section 190.3, factor (b) provides that in determining whether to impose the death penalty or life without possibility of parole, the trier of fact may take into consideration the “presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”
Among the acts of violent misconduct admitted against defendant were three unadjudicated incidents committed while he was a juvenile: the pizza robbery; the campus supervisor assault; and the assault on his mother. (See ante, at pp. 1227-1228.)
Nevertheless, relying on Roper v. Simmons (2005)
Defendant’s reliance on Roper v. Simmons, supra,
Defendant also claims the trial court erred in admitting evidence of a fourth incident of juvenile misconduct, bringing BB guns onto school grounds when he was 12 years old. (See ante, at p. 1227.) He contends the evidence was improper, not only because the conduct was not criminal as required by section 190.3, factor (b), but also because it did not involve “the express or implied threat to use force or violence.” The Attorney General concedes this would not have been a crime at the time of defendant’s conduct.
a. The Testimony of the Victim’s Family
The victim’s family members, both from Mexico and the United States, testified about the lasting impact of his murder. (See ante, at p. 1227.) Defendant contends the admission of this evidence violated his state and federal rights to due process and a reliable penalty determination. The contention lacks merit.
“Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under section 190.3, factor (a).” (People v. Lewis and Oliver (2006)
b. The Videotape
Defendant contends a videotape shown by the prosecution “played unfairly to the jury’s emotions, and was clearly prejudicial.”
We have viewed the videotape. It is a montage of fewer than 20 still photographs. The photographs depict a young Mr. Fierros, his family, his hometown in Mexico, and his family’s humble residence. With the exception of a studio portrait of Fierros as a teenager, the photographs are snapshots of very poor quality.
“Trial courts must be very cautious about admitting [victim impact] videotape evidence.” (People v. Kelly (2007)
The trial court did not abuse its discretion. The videotape was not unduly emotional. It merely presented admitted evidence in a different medium, unenhanced by any soundtrack or commentary. The few grainy family photographs simply “humanized” the victim, “as victim impact evidence is designed to do.” (Kelly, supra,
c. The Testimony of the Bank Robbery Victims
Victims of defendant’s uncharged bank robberies testified as to the continuing impact of the crimes upon them. (See ante, at pp. 1228-1230.) Defendant contends that although evidence of a defendant’s commission of prior violent acts is admissible, evidence of the impacts of those crimes is not. To the contrary, “the circumstances of the uncharged violent criminal conduct, including its direct impact on the victim or victims of that conduct, are admissible under [section 190.3,] factor (b). [Citations.]” (People v. Demetrulias (2006)
Finally, defendant contends that the prosecution appealed to racial prejudice through the testimony of victims Rita Lambert and Virginia Rodriguez. Ms. Lambert, the teller robbed at Chino Valley Bank, testified that because of the robbery she no longer worked at a bank. She added: “I didn’t realize it until now, and I hate that I feel this way, but I get very uptight and nervous when I see somebody [who] is young and black.” Ms. Rodriguez, along with four of her children, was prevented at gunpoint from leaving Riverside National Bank during the robbery. She also feared that her husband, who had remained outside the bank with their other two children, might have been taken hostage. Ms. Rodriguez testified that, “It just affected me a lot— because people who are black, I don’t have as much confidence in them. Sometimes I see black people near me and I move away from them because I think it’s bad.”
While a showing of bad faith is no longer required to prove prosecutorial misconduct,
3. Asserted Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct during her penalty phase argument, thereby violating his state and federal constitutional rights to confrontation, a fair trial, due process, and a reliable verdict.
Defendant’s first claim involves the prosecutor’s reading of an excerpt from a magazine article. Before argument the trial court overruled defendant’s objection to the excerpt. Therefore, any fault in this regard would be judicial error, not prosecutorial misconduct. (People v. Riggs (2008) 44 Cal.4th 248, 325, fn. 40 [
This court has repeatedly held that in closing argument attorneys may use illustrations drawn from common experience, history, or literature. (E.g., People v. Harrison (2005)
To the contrary, the excerpt was simply one more literary effort to frame the age-old argument about free will and determinism, and to make the case for assigning greater weight to free will and personal responsibility in fixing blame and punishment.
Defendant also claims that the prosecutor committed misconduct in arguing to the jury that defendant would pose a danger to inmates and staff if he were sentenced to life in prison without possibility of parole.
Defendant objects that no evidence was presented that defendant had acted on these threats. True. However, given the overwhelming evidence of defendant’s past violence (see ante, at pp. 1227-1231), the prosecutor had ample basis on which to argue that he would make good on his threats if given the opportunity.
4. Instructions on Victim Impact Evidence
Defendant contends the jury was not properly instructed on the use of victim impact evidence.
In accordance with CALJIC No. 8.84.1, the jury was instmcted in pertinent part that “[y]ou must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the defendant have the right to expect that you will consider all the evidence, follow the law, exercise your discretion consciously [¿vc], and reach a just verdict.”
On appeal, defendant contends the trial court should have given the following instruction sua sponte: “Victim-impact evidence is simply another
We recently considered this instruction and concluded it is neither required nor appropriate. (People v. Zamudio, supra,
5. Instruction on Governor’s Commutation Power
During penalty phase deliberations, the jury submitted the following written question to the court: “Does a conviction and sentence of Life without possibility of parole mean there is no future possibility of parole regardless of future changes of Law or Legal precident [sz'c]?” The court advised counsel
The Attorney General contends the doctrine of invited error bars defendant from challenging the instruction on appeal. We need not reach this question because the instruction was not erroneous.
A trial court in a capital case does not err when it answers a jury question generally related to the commutation power by instructing that the Governor may commute either a death sentence or a life without possibility of parole sentence, but that the jury must not consider the possibility of commutation in determining the appropriate sentence. (People v. Hines (1997)
Relying on Coleman v. Calderon (9th Cir. 2000)
In Coleman II, the Ninth Circuit held that the instruction given there was prejudicially misleading because it “suggested the Governor could, at his sole discretion, commute a sentence from life imprisonment without the possibility of parole to some lesser sentence that would include the possibility of parole.” (Coleman II, supra,
Coleman II is distinguishable. Unlike in this case, the instruction in Coleman II was not given in response to a jury question. (People v. Coleman (1988)
Moreover, as we have stated repeatedly, there is no reason to mention the restrictions on the Governor’s power of commutation because they are irrelevant to the jury’s determination, and there is good reason not to stress a defendant’s record. (People v. Beames (2007)
The Coleman II court further held that the standard instmction in that case was constitutionally infirm because it invited the jury to speculate that the only way to prevent the defendant’s release was to sentence him to death. (Coleman II, supra, 210 F.3d at pp. 1050-1051.) The instruction given here certainly did not invite the jury to engage in such speculation. To the contrary, the jury was admonished that considering the possibility of commutation would be a violation of its oath. Absent any contrary indication, we presume the jury followed the instruction. (See, e.g., People v. Gray (2005)
Defendant next contends the instruction given here was erroneous because the jury’s question did not directly raise the issue of commutation. We have recently rejected this argument. “Defendant asserts the trial court should not have instructed on commutation, because the jury did not specifically ask about the Governor’s commutation power but, rather, inquired about parole. We have held, however, that commutation instructions are properly given when the jury implicitly raises the issue of commutation. [Citations.]” (Beames, supra,
While the instruction given by the court appropriately responded to the commutation issue implicit in the jury’s question, defendant contends the instruction requires reversal because it failed to address the issue that was raised explicitly; whether defendant might be paroled as a result of future legislative or judicial action. It would have been proper for the court to tell
6. CALJIC Nos. 8.85 and 8.88
Defendant challenges two pattern instructions explaining statutory factors the jury was to consider in making its penalty decision (CALJIC No. 8.85) and on the weighing of those factors (CALJIC No. 8.88).
a. CALJIC No. 8.85
As we have recently affirmed, “CALJIC No. 8.85 is both correct and adequate.” (People v. Valencia (2008)
The “circumstances of the crime” factor stated in section 190.3, factor (a) does not foster arbitrary and capricious penalty determinations. (E.g., People v. Barnwell (2007)
The trial court is not obligated to delete inapplicable factors from the factors that may be considered in mitigation or aggravation. (E.g., Harris, supra, 43 Cal.4th at pp. 1320-1321.)
The use in the sentencing factors of the phrases “extreme mental or emotional disturbance” (§ 190.3, factor (d), italics added) and “extreme duress or . . . substantial domination of another” (id., factor (g), italics added) does not inhibit the consideration of mitigating evidence or make the factors impermissibly vague. (E.g., People v. Lewis (2008)
Written findings are not required as to the aggravating factors. (E.g., People v. Watson (2008)
b. CALJIC No. 8.88
CALJIC No. 8.88 adequately advises jurors on the scope of their discretion to reject death and return a verdict of life without possibility of parole (LWOP). (E.g., People v. Stitely, supra,
The language in CALJIC No. 8.88 directing the jury to determine whether the aggravating circumstances are “so substantial” in comparison to the mitigating circumstances is not unconstitutionally vague. (E.g., Watson, supra,
The instruction is also not unconstitutional for failing to inform the jury that: (a) death must be the appropriate penalty, not just a warranted penalty (e.g., People v. Moon (2005)
Finally, section 190.3 and the pattern instructions are not constitutionally defective for failing to assign the state the burden of proving beyond a
7. Intercase Proportionality
Contrary to defendant’s contention, intercase proportionality review for death penalty cases is not required by the Eighth and Fourteenth Amendments to the United States Constitution. (E.g., People v. Lindberg (2008)
8. International Law
Contrary to defendant’s contention, the death penalty as applied in this state is not rendered unconstitutional through operation of international law and treaties. (E.g., Barnwell, supra,
9. Asserted Cumulative Error
Finally, there was no cumulative prejudice. We have found only one minor error: the admission of evidence of defendant’s noncriminal conduct in bringing BB guns to school when he was 12 years old. (See ante, at p. 1239.) Again, in light of the evidence of defendant’s violent crimes as an adult, including his eight armed robberies, there is no reasonable possibility that this evidence was prejudicial. (Ibid.)
III. DISPOSITION
We affirm the judgment.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
Notes
Before trial, defendant pleaded guilty to two counts of robbery and one count of attempted robbery arising from incidents that were subsequently proven during the prosecution’s case in the penalty phase of the trial. Specifically, these incidents were the robbery of a Riverside National Bank branch, the attempted robbery of another branch of the same bank, and the robbery of a Chino Valley Bank branch. (See post, at pp. 1228-1229.) Defendant was sentenced to prison for 13 years eight months for these offenses.
Defendant concedes in his briefing that his own statements and the eyewitness testimony established that he shot the victim while robbing him.
Miranda v. Arizona (1966)
At the conclusion of his mother’s cross-examination, for no apparent reason, defendant “threw his chair backwards, knocked it over,” left the courtroom, and went to the holding cell. At the request of the defense, the court took a recess to give him an opportunity to regain his composure. Subsequently, the bailiff requested, out of the jury’s presence, to restrain defendant with a “leg brace.” The court found the restraint reasonable under the circumstances, and noted the leg brace was covered by defendant’s pants and could not be seen by the jury. Defendant does not raise this matter on appeal.
Defendant relies upon the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and the corresponding provisions of the California Constitution.
Penal Code section 1149 provides: “When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.”
Penal Code section 1163 provides: “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.”
At oral argument defendant invited us to reconsider this rule. In the absence of authority to the contrary, we decline to do so. Relying on Snyder v. Louisiana (2008)
Further statutory references are to the Penal Code, unless otherwise indicated.
Defendant asserts: “Both the statutory reference (‘Section 187 of the Penal Code’) and the description of the crime (‘did willfully, unlawfully, and with malice aforethought murder’) establish that [defendant] was charged exclusively with second degree malice murder in violation of Penal Code section 187, not with first degree murder in violation of Penal Code section 189.”
“Section 187 provides, in relevant part: ‘Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.’
“Section 189 provides, in relevant part: ‘All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder
Defendant relies upon the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
For the current state of the law, see the Gun-Free School Zone Act of 1995. (§ 626.9.)
People v. Hill (1998)
Defendant relies on the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution as well as on article I, sections 7, 15, and 17 of the California Constitution.
The prosecutor was not permitted to identify the author, James Q. Wilson, or note that the article appeared in the June 1997 issue of California Lawyer.
The excerpt read: “ ‘Many of us believe there has been a decline in willingness of citizens to assume personal responsibility for their actions. It seems we are now more likely to deny guilt, to expect rewards without efforts, to blame society for individual failings, and to exploit
“ ‘In each of us there is a tension between the desire to judge and the desire to explain human behavior. Unless the law proceeds carefully, it risks placing its finger too heavily on one side of that tension, typically the explanatory side, so that juries are more likely to explain and consequently accept abuse excuses and less likely to judge the defendant’s actions.
“ ‘The central failing of American criminal law is the blurring of boundaries between imperfect social science, which seeks to explain behavior, and the law, which seeks to judge it.
“ ‘Our society clings stubbornly to the idea of personal responsibility. To do otherwise is to invite an absurdity: if all behavior is caused by factors beyond the individual’s control, and if people cannot be blamed for actions beyond their control, then nobody can be blamed for anything. [And t]his result strikes almost everybody as ridiculous, so we reject it.
“ ‘When we insist on personal accountability, we insist that people beyond a certain age are moral agents. If they break the law and cannot reasonably claim one of a small number of offenses [ric: defenses], they ought to be held accountable. Not only does this view satisfy our moral conviction that people should be responsible for their actions, but it also serves two practical functions. It sends a message to children learning how to behave that they ought to acquire those habits and beliefs that will facilitate their conformity to the essential rules of civilized conduct. A strict view of personal accountability also sends a message to individuals choosing between alternative courses of action that there are likely important consequences of making [certain bad choices].’ ” (See Wilson, Sorry I Killed You, but I Had a Bad Childhood (June 1997) Cal. Law. 43-44.)
As we discuss below (see post, at pp. 1248-1250), the court gave the pattern jury instructions CALJIC Nos. 8.85 and 8.88.
In a request for judicial notice filed on December 5, 2007, defendant asks us to notice the testimony of Rebecca Johnson in another case, the prosecution of defendant’s confederate Anthony Miller. There, she apparently testified that Miller, not defendant, assaulted her after she testified in defendant’s case here. We deny the request. Defendant makes it to support his claim that the prosecutor here committed misconduct by eliciting testimony from Johnson concerning the assault. There was no misconduct. Johnson did not say that defendant was the person who assaulted her. Moreover, the jury was instructed that the testimony was admitted only to explain why Johnson might be reluctant to testify in this case, and that it should not be considered against defendant unless the assault was somehow tied to him.
Defendant’s father, a cousin, and a gang member nicknamed “Monster Cody.”
Defendant relies upon the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
For example, section 190.3, factor (e): “Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.”
Cunningham v. California (2007)
Concurrence Opinion
I disagree with the majority regarding the trial court’s commutation instruction to the jury in response to its inquiries. In my view, such an instruction in that context was error. Moreover, the instruction was erroneously incomplete. I am bound by our prior case law, however, to
We held in People v. Ramos (1984)
Since Ramos, we have extended that recognition to situations in which a jury “implicitly]” refers to the commutation power, such as a jury’s question about whether “ ‘our penalty decision [can] be modified through any part of the appeal process.’ ” (People v. Hines (1997)
But extending that rationale to the present case is unwarranted. As the majority opinion recounts, the jury asked during deliberations: “Does a conviction and sentence of Life without possibility of parole mean there is no future possibility of parole regardless of future changes of Law or Legal precident [sic]?” After consulting with counsel, the court issued this instruction: “The governor of the State of California has the power to commute or modify a sentence. This power applies to both fife without possibility of parole and the death sentence. It would be a violation of your duty as a juror to consider the possibilities of such commutation of an appropriate sentence.” (Maj. opn., ante, at pp. 1245-1246.)
It is difficult to say from the above that the jury was thinking about commutation and that therefore the issue of commutation could not be
Thus, for example, in People v. Turner (2004)
Here, as in Turner, the jury wanted to know whether changes in the law would affect a life without parole sentence, and the trial court could have instructed the jury simply not to “ ‘speculate or consider such matters,’ ” instead of sua sponte instructing on gubernatorial commutation that the jury’s questions did not seem to raise. It cannot be the case that any time penalty phase jurors inquire into the true nature of a life without parole sentence, it is appropriate to instruct on commutation, no matter what form that inquiry takes. Because this is not a case where a commutation instruction “could not be avoided” (Ramos, supra,
Moreover, I find merit in defendant’s argument that even if the instruction was appropriately given, in light of his three prior convictions, the commutation instruction was erroneous because it failed to inform the jury that commutation was possible for a twice-convicted felon only upon the recommendation of four justices of this court. (See Cal. Const., art. V, § 8, subd. (a).) In so arguing, defendant relies on Ninth Circuit precedent holding that such an omission may in some circumstances constitute prejudicial error. (Coleman v. Calderon (9th Cir. 2000)
It is also within the realm of possibility that the trial court’s instructional error was prejudicial. First, the fact that the jury asked these questions during the course of their deliberations meant that there was some likelihood that the answers mattered to those deliberations, and that a wrong answer could have influenced the jury against defendant. Moreover, the court erred not only by erroneously giving the commutation instruction, but also by not responding to the jury’s real question, and it is possible additional prejudice resulted from that omission. Also to be considered in the prejudice equation is the closeness of the case. The fact that the panel’s deliberations continued for five days, while not conclusive, is one indication of closeness. Furthermore, although it was a brutal murder, as most all death-eligible murders are, it was more impulsive than deliberate, and there is some truth to trial counsel’s statement during closing argument that it was not “the worst of the worst” murders. Also significant, as defense counsel stressed, defendant was 18 years one month old at the time he committed the murder and, under the death penalty statute (Pen. Code, § 190.5) a person under 18 would not have been subject to the death penalty, even before the Supreme Court put that rule on a constitutional footing in Roper v. Simmons (2005)
Appellant’s petition for a rehearing was denied September 23, 2009. Werdegar, J., did not participate therein.
Because the error was harmless under this court’s precedent, I do not reach the question whether the Attorney General is correct that any error was invited. I note that, generally speaking, the doctrine of invited error applies only in situations in which defense counsel has requested an instruction based on a “conscious and deliberate tactical choice.” (People v. Lucero (2000)