People v. BrownPeople v. Brown
A jury convicted defendant John George Brown, Jr., of first degree murder, found true the special circumstance allegation of intentionally killing a peace officer engaged in the performance of his duties, and returned a verdict of death. On automatic appeal, this court affirmed the judgment
On retrial, a jury again convicted defendant of first degree murder and found true the special circumstance allegation. (See
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
Since the prosecution‘s case-in-chief on retrial substantially replicated the evidence presented at the original trial, we draw in part on our factual statement in Brown I.
“In June 1980 defendant was a wanted man; he had failed to appear for a jury trial and another criminal hearing, and two bеnch warrants were issued for his arrest. After telling his former live-in girlfriend he was not going back to jail and did not want to die in prison, defendant bought a gun and changed his name to Gordon Mink. [¶] Meanwhile the Garden Grove police were looking for him.” (Brown I, supra, 46 Cal.3d at p. 440, 250 Cal.Rptr. 604, 758 P.2d 1135.)
About 11 o‘clock on the evening of June 7, Officer Paul McInerny and his partner, Reserve Officer Dwight Henninger, saw defendant‘s car in the parking lot of the Cripple Creek Bar. In response to their radio call for assistance, Officers Donald Reed and Glenn Overly arrived a few minutes later. “After discussing [the situation], all four officers— all in full uniform — entered the crowded bar through two separate doors and worked their way to the center of the room. [¶] Defendant, who was sitting in the corner with a group of other `... people,’ saw the officers enter; a nearby patron heard him say `the рigs are here,’ as he started for the door. The officers recognized defendant and moved in his direction. At the door, Officer Reed caught up with defendant and put his hand on defendant‘s shoulder. Before any of the officers could draw his weapon, defendant pulled a gun and fired at least eight times. Two lethal shots hit Officer Reed; three shots gravely wounded Officer Overly; Officer Henninger was seriously wounded; a private citizen, Terezia, suffered permanent and grave injury after being shot between the eyes; and another citizen, McKinney, was shot in the leg.
“Defendant fled and hid in some bushes outside the bar. About two hours later, with numerous officers at the scene, he was found crouched in the dirt. As he was brought out of the bushes an officer called out, `Where‘s the gun?’ Defendant stated, `I threw it.’ His gun, hat and keys were thereafter found nearby.” (Brown I, supra, 46 Cal.3d at pp. 440-441, 250 Cal.Rptr. 604, 758 P.2d 1135.)
The defense was diminished capacity. A preliminary drug screening test was positive for phencyclidine (PCP), and an expert witness opined defendant had PCP in his blood at the time of the killing. Based on defendant‘s statement that he had ingested lysergic acid (LSD), PCP, and methamphetamine prior to and on the day of the shooting, a forensic psychiatric expert testified to a significant possibility defendant‘s mental state was impaired due to drug intoxication. The defense also presented some evidence suggesting third party culpability.
In rebuttal, the prosecution submitted test results showing negative for all drugs, including PCP and methamphetamine.
B. Penalty Phase Evidence
The prosecution offered evidence of two prior felony convictions in 1969, one for breaking and entering and one for aggravated battery.
Evidence of four incidents involving force or violence was also presented. Robert Paulk testified that in 1969, when he was on uniformed patrol duty as a Vero Beach police officer, defendant attempted to run him down with a vehicle when Paulk approached to discuss an expired registration tag. In 1978, defendant assaulted Frank Veitenheimer with a heavy object outside a bar, shattering his eye orbit and breaking his nose. Veitenheimer required several weeks of hospitalization as well as surgery. In 1980, while incarcerated in county jail, defendant forced another inmate, James Brummel, to commit an act of oral copulation. In 1981, also while incarcerated in county jail, defendant stole a pair of wire cutters from fellow inmate Kevin Burbridge, who possessed them because his jaw had been wired closed to repair a break.
The defense offered testimony from two of defendant‘s uncles concerning difficulties in his youth, including physical and psychological abuse by his alcoholic father. Basеd on a review of medical records, declarations by relatives, and prison records, Dr. David Foster, a neuropsychiatrist, testified, among other things, that defendant had brain damage and suffered from posttraumatic stress disorder as well as bipolar disorder.
II. DISCUSSION
A. Guilt Phase Issues
1. Reasonable doubt instruction
At the time defendant committed his crimes in 1980 and at his first trial in 1982, the standard reasonable doubt instruction provided: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in the case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending
Characterizing the current version of CALJIC No. 2.90 as a “`weaker’ definition of reasonable doubt,” defendant contends its use violated various constitutional rights, in particular the proscription against ex post facto laws and the correlative right to due process. At the outset, we question the premise of defendant‘s argument — that CALJIC instructions come within thе purview of the ex post facto clause. That provision prohibits any legislative act that criminalizes conduct innocent when done, makes a crime greater than when done, increases or changes the punishment, or alters the rules of evidence to permit conviction on lesser or different evidence than when the crime was committed. (Carmell v. Texas (2000) 529 U.S. 513, 522-525, 120 S.Ct. 1620, 146 L.Ed.2d 577.) On its face the ex post facto clause operates as a check only on the exercise of legislative power, but similar limitations apply to judicial enlargement of a criminal act under principles of due process. (Bouie v. Columbia (1964) 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; see In re Baert (1988) 205 Cal.App.3d 514, 517-519, 252 Cal.Rptr. 418.)
In contrast to legislative enactments or judicial decisions, the California Jury Instructions, Criminal (CALJIC) does not have the force of law. (People v. Alvarez (1996) 14 Cal.4th 155, 217, 58 Cal.Rptr.2d 385, 926 P.2d 365; see People v. Runnion (1994) 30 Cal.App.4th 852, 858, 36 Cal.Rptr.2d 203.) Rather, “[i]t may be described as a semiofficial form boоk” containing “carefully drafted statements ... generally accepted as accurate and safe to use. Moreover, an active editorial committee keeps abreast of new decisions and prepares changes and revisions for supplements of the work.” (5 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Criminal Trial, § 627, p. 893.) Thus, modification of a particular instruction only reflects judicial action that may come within the purview of due process for retroactive application; it does not constitute such judicial action itself.
The revision of CALJIC No. 2.90 illustrates this point. The CALJIC committee modified the instruction in response to Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 and People v. Freeman (1994) 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249. (See People v. Aguilar (1997) 58 Cal.App.4th 1196, 1208, 68 Cal.Rptr.2d 619.) In Victor v. Nebraska, the defendant challenged the references to “moral evidence” and “moral certainty.” The high court upheld the constitutionality of CALJIC No. 2.90 but did not condone retention оf these references because their common meaning had changed since the instruction‘s original formulation, “and it may continue to do so to the point that it conflicts with the Winship [reasonable doubt] standard [(In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368)].” (Victor, at p. 16, 114 S.Ct. 1239.) In People v. Freeman, this court as well noted that in light of Victor v. Nebraska, “today it might be more perilous for trial courts not to modify [CALJIC No. 2.90] in a narrow and specific manner....” (Freeman, at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.) Appendix B to the 7th edition of CALJIC, containing the history of the reasonable doubt instruction, cites both Victor v. Nebraska and People v. Freeman as the genesis of the current version. (CALJIC, supra, appen. B, pp. 519, 524.)
Since CALJIC instructions do not constitute legislative or decisional law and thus cannot implicate ex post facto concerns or due process, defendant‘s only argument is that the revised CALJIC No. 2.90 is itself defective. The analysis in Victor v. Nebraska, supra, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583, rebuts this contention. As we explained in People v. Freeman, supra, 8 Cal.4th at page 503, 34 Cal.Rptr.2d 558, 882 P.2d 249, the high court “concluded that although the questioned terms add nothing of value to the instruction, they do not render it unconstitutional.” If the inclusion of “moral evidence” and “moral certainty” adds nothing of value, then plainly their exclusion can take away nothing of vаlue. Moreover, the court expressly stated, “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government‘s burden of proof. [Citation.]” (Victor, at pp. 14-15, 114 S.Ct. 1239.) Defendant therefore has no basis for complaint.2 (See People v. Aguilar, supra, 58 Cal.App.4th at pp. 1207-1209, 68 Cal.Rptr.2d 619.)
2. CALJIC No. 17.41.1
Over defendant‘s objection, the trial court instructed the jury pursuant to CALJIC No. 17.41.1, which provides: “The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide that case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation.” Defendant contends the instruction was erroneous because it undermined his right to a trial by jury, to due process, аnd to a unanimous verdict. (
In People v. Engelman (2002) 28 Cal.4th 436, 121 Cal.Rptr.2d 862, 49 P.3d 209, this court addressed the propriety of giving CALJIC No. 17.41.1. We acknowledged that the instruction “creates a risk to the proper functioning of jury deliberations and that it is unnecessary and inadvisable to incur this risk” (Engelman, at p. 449, 121 Cal.Rptr.2d 862, 49 P.3d 209), but nevertheless
Defendant makes no argument warranting reconsideration of our conclusions. Nor does he cite anything in the record indicating the jurors in his case were improperly influenced by the instruction in their deliberations. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 119, fn. 7, 134 Cal.Rptr.2d 467.) Accordingly, we find no error.
B. Penalty Phase Issues
1. Victim impact evidence
a. Ex post facto
Prior to commencement of the penalty phase, defense counsel moved to exclude victim impact evidence on the ground its admission would violate the proscription against ex post facto laws because such evidence was not admissible at the time defendant committed his crimes. (See People v. Boyd (1985) 38 Cal.3d 762, 775-776, 215 Cal.Rptr. 1, 700 P.2d 782.) The trial court declined to do so, and defendant now argues the ruling was constitutional error.
In California, the admissibility of victim impact evidence is governed by judicial construction of the state‘s death penalty law, not by statute. (See People v. Edwards (1991) 54 Cal.3d 787, 833-834, 1 Cal.Rptr.2d 696, 819 P.2d 436.) Accordingly, the due process clause rather than the ex post facto clause controls our analysis. (See generally In re Baert, supra, 205 Cal.App.3d at pp. 517-519, 252 Cal.Rptr. 418.) Under either provision, however, defendant‘s argument fails.
In Carmell v. Texas, supra, 529 U.S. at pages 543-544, 120 S.Ct. 1620 the United States Supreme Court reaffirmed a long-standing principle of ex post facto jurisprudence:
“`Statutes which simply enlarge the class of persons who may be competent to testify in criminal casеs are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.
“`... [A]lterations which do not increase the punishment, nor change the
In the context of victim impact evidence, this principle has consistently been held to permit admission even when the basis, usually statutory, post-dated the defendant‘s crimes. “`[V]ictim impact evidence is simply another form or method of informing the sentеncing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.’ [Citation.]” (Neill v. Gibson (10th Cir.2001) 278 F.3d 1044, 1052, quoting Payne v. Tennessee (1991) 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720.) “Further, the [court in Thompson v. Missouri (1898) 171 U.S. 380, 18 S.Ct. 922] indicated it could not `perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed.... The statute [at issue] did nothing more than remove an obstacle ... that withdrew from consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established....‘” (Neill, at p. 1052.) Simply put, even in the context of victim impact evidence, “the fact that a statute works to а defendant‘s disadvantage does not constitute an ex post facto violation. [Citation.]” (State v. Muhammad (1996) 145 N.J. 23, 678 A.2d 164, 181; see Collins v. Youngblood (1990) 497 U.S. 37, 50, 110 S.Ct. 2715, 111 L.Ed.2d 30; Washington v. Murray (4th Cir.1991) 952 F.2d 1472, 1480; Livingston v. State (1994) 264 Ga. 402, 444 S.E.2d 748, 752; State v. Clark (1999) 128 N.M. 119, 990 P.2d 793, 809; Mitchell v. State (Okla.1994) 884 P.2d 1186, 1204; see also Davis v. State (Ind.1993) 598 N.E.2d 1041, 1051.)
Thus, even assuming decisional law imposed greater restriction on the admissibility of victim impact evidence at the time of defendant‘s crimes in comparison to the time of trial, the application of current law had no constitutional significance.
b. Evidence Code section 352 and Payne v. Tennessee
In addition to objecting to victim impact evidence on ex post facto grounds, defendant argued the evidence should be excluded as more prejudicial than probative under
In Payne v. Tennessee, the United States Supreme Court partially overruled Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 and South Carolina v. Gathers (1989) 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876, which had categorically foreclosed both evidence and
In People v. Edwards, supra, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436, this court explained the effect of this reversal on California death penalty law. Although victim impact is not expressly enumerated as a statutory aggravating factor, we concluded such evidence was generally admissible as a circumstance of the crime under
With these guiding considerations in mind, we turn to the specific evidence at issue, keeping in mind that at the penalty phase defendant offered
The prosecution‘s evidence generally fell into two categories: testimony by the surviving assault victims, John Terezia, Officer Henninger, and Officer Overly and testimony from Officer Reed‘s family members. With regаrd to the assault victims’
With regard to testimony by Reed‘s surviving family members, we find nothing in their testimony that went beyond the scope of admissible victim impact testimony under People v. Edwards, supra, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436. For the most part, their testimony concerned either the immediate effects of the murder — such as Linda Reed‘s description of the circumstances the night of the killing when she was informed of the death of her husband and Randell Novell‘s recounting the next day seeing newspaper headlines of the incident — or the residual and lasting impact they continued to experience — such as Novell‘s feelings when passing his brother‘s grave. (See People v. Pollock (2004) 32 Cal.4th 1153, 1182, 13 Cal.Rptr.3d 34, 89 P.3d 353; People v. Boyette (2002) 29 Cal.4th 381, 444-445, 127 Cal.Rptr.2d 544, 58 P.3d 391.) To the extent they also recollected past incidents or activities they shared with Reed, their testimony simply served to explain why they continued to be affected by his loss and to show the “victim‘s `uniqueness as an individual human being,’ whatever the jury might think the loss to the community resulting from his death might be.” (Payne v. Tennessee, supra, 501 U.S. at p. 823, 111 S.Ct. 2597.) In this regard, the United States Supreme Court in Payne acknowledged that just as the
Defendant contends Novell‘s testimony about his custom of saluting his brother‘s grave every time he drives past the cemetery and Reed‘s father‘s testimony he has not gone fishing since his son‘s death constituted inadmissible evidence. We consider these simply manifestations of the psychological impact experienced by the victims, in no wаy inconsistent with our prior decisions nor “fundamentally unfair” within the meaning of Payne v. Tennessee, supra, 501 U.S. at page 825, 111 S.Ct. 2597. Each in its own respect, these responses are understandable human reactions, particularly Novell‘s given the circumstances of the crime — a police officer deliberately killed in the line of duty. Defendant further argues that the Reed family members were not direct witnesses to the crime and for that reason should not have been permitted to testify. We find no authority for such a rule, which would eliminate the vast majority of victim impact evidence in murder cases — a result inconsistent with the underlying rationale of Payne v. Tennessee, supra, 501 U.S. 808, 819, 111 S.Ct. 2597, 115 L.Ed.2d 720, that “the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law....” In the case of murder, the “harm caused” will first and foremost be suffered by surviving family members.
2. Prosecutorial misconduct
Defendant contends the prosecutor committed misconduct in making certain arguments in favor of the death penalty. He failed to object to any portion of the argument or seek a curative admonition and therefore has waived the issue on appeal. (People v. Ashmus (1991) 54 Cal.3d 932, 989, 2 Cal.Rptr.2d 112, 820 P.2d 214.) Even disregarding this procedural default, we find no error.
The prosecutor told the jury: “What I am saying is this: If you kill a police officer, a good police officer in the performance of his duties, his duties to keep us safe — you folks parked in the jury parking lot. People are out there walking around, the whole county right now, if you stop — let me just take a little liberty with you. Let‘s stop right now. Everybody that is moving everywhere in Orange County and, then we say (snaps fingers), you can move now, their freedom is dependent upon police officers. Because if you don‘t have a policeman out there, or at least a criminal that has no rights — no feeling about the rights of anyone, if you don‘t have a policeman to deter that guy, we don‘t have freedom, if you think about it. And that is what Don Reed stood for. He stood for our freedom. He was there basically enforcing the laws that allowed us — that allows us to move about free.”
In addition, the prosecutor quoted Randell Novell‘s testimony regarding an incident in which Novell “`was driving home from work one day, and I saw a guy on a Harley Davidson motorcycle with long hair and tattoos. And I pulled up next to the guy, and I was within a hair of just turning left into him. And I thought, “I can‘t do it. I have children. I have a wife. “I can‘t do it.” But that [is the] kind of uncontrollable anger that you have to control. [¶] I never had those thoughts since or ever before that, but it was very difficult, very
We find nothing objectionable in these remarks. “`[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] `A prosecutor may “vigorously argue his case and is not limited to `Chesterfieldian politeness‘” [citation]....‘” (People v. Wharton (1991) 53 Cal.3d 522, 567-568, 280 Cal.Rptr. 631, 809 P.2d 290.) The arguments here did not exceed these bounds. Since, as previously discussed, the victim impact evidence was admissible, the prosecutor could recall that evidence and urge the jurors to rely on it in voting to impose the death penalty. (See Payne v. Tennessee, supra, 501 U.S. at p. 827, 111 S.Ct. 2597; see also People v. Sanders (1995) 11 Cal.4th 475, 548-549, 46 Cal.Rptr.2d 751, 905 P.2d 420; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1017, 30 Cal.Rptr.2d 818, 874 P.2d 248; People v. Fierro (1991) 1 Cal.4th 173, 235, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) In doing so, he asked them to “salute Don Reed” not on the basis of inflammatory rhetoric or emotion but “by applying the law [set forth in CALJIC No. 8.85 enumerating the applicable statutory aggravating and mitigating circumstances].” In reminding the jurors that we all depend on not only the presence but the commitment of law enforcement officers to help ensure safe and peaceable communities, he did no more than draw from common experience.
3. CALJIC No. 17.41.1
At the penalty phase, the court instructed the jury that it should “be guided by the previous instructions given in the guilt phase of this trial which are applicable and pertinent to the determination of penalty.” Defendant contends the inclusion of CALJIC No. 17.41.1 (see ante, 15 Cal.Rptr.3d at p. 632, 93 P.3d at p. 251) infringed upon his constitutional rights because “[a] juror who was disinclined to impose the death penalty would have felt pressure, due to this erroneous instruction, to go along with the majority in `saluting’ Don Reed by voting for death or risk being reported to the court for failing to follow the law.”
As previously discussed (see ante, 15 Cal.Rptr.3d at pp. 632-633, 93 P.3d at pp. 251-252), CALJIC No. 17.41.1 is not constitutionally defective. (People v. Engelman, supra, 28 Cal.4th 436, 121 Cal.Rptr.2d 862, 49 P.3d 209.) Defendant offers no basis for reconsidering this conclusion
4. Constitutionality of California‘s death penalty statute
Defendant raises a number of constitutional challenges to California‘s death penalty statute, claims we have consistently rejected and find no persuasive reason to reexamine.
Accordingly, we continue to hold:
(1) The death penalty law adequately narrows the class оf death-eligible offenders. (People v. Prieto (2003) 30 Cal.4th 226, 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
(2) Consideration of the circumstances of the crime under section 190.3, factor (a) does not result in arbitrary or capricious imposition of the death penalty. (People v. Prieto, supra, 30 Cal.4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123; see Tuilaepa v. California (1994) 512 U.S. 967, 987-988, 114 S.Ct. 2630, 129 L.Ed.2d 750.) Defendant‘s argument that a seemingly inconsistent range of circumstances can be culled from death penalty decisions proves too much. What this reflects is that each case is judged on its facts, each defendant on the particulars of his offense. Contrary to defendant‘s position, a statutory scheme would violate constitutional limits if it did not allow such individualized assessment of the crimes but instead mandated death in specified circumstances. (See generally Lockett v. Ohio (1978) 438 U.S. 586, 602-606, 98 S.Ct. 2954, 57 L.Ed.2d 973.)
(3) The death penalty law is not unconstitutional for failing to impose a burden of proof — whether beyond a reasonable doubt or by a рreponderance of the evidence — as to the existence of aggravating circumstances, the greater weight of aggravating circumstances over mitigating circumstances, or the appropriateness of a death sentence. (People v. Jenkins (2000) 22 Cal.4th 900, 1054, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) Unlike the statutory schemes in other states cited by defendant, in California “‘the sentencing function is inherently moral and normative, not factual’ [citation] and, hence, not susceptible to a burden-of-proof quantification.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79, 14 Cal.Rptr.2d 133, 841 P.2d 118; see also People v. Prieto, supra, 30 Cal.4th at pp. 262-263, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
(4) The jury is not constitutionally required to achieve unanimity as to aggravating circumstances. (People v. Jenkins, supra, 22 Cal.4th at p. 1053, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)
Recent United States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and Ring v. Arizona (2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 have not altered our conclusions regarding burden of proof or jury unanimity. (See People v. Prieto, supra, 30 Cal.4th at p. 275, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
(5) The absence of a requirement the jury make written findings does not render the law unconstitutional. (People v. Jenkins, supra, 22 Cal.4th at p. 1053, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)
(6) Nor is it defective in failing to require intercase proportionality review. (People v. Prieto, supra, 30 Cal.4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
(7) The jury may properly consider evidence of unadjudicated criminal activity involving force or violence under factor (b) of
(8) “[T]he use of certain adjectives — i.e., ‘“extreme“’ and “‘substantial‘” — in the list of mitigating factors does not render the statute unconstitutional [citation].” (People v. Prieto, supra, 30 Cal.4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
(9) The trial court is not required to instruct that certain statutory factors can only be considered in mitigation. (Tuilaepa v. California, supra, 512 U.S. at p. 979, 114 S.Ct. 2630.) Since there is no requirement that the court identify which factors are aggravating and which are mitigating (see, е.g., People v. Catlin (2001) 26 Cal.4th 81, 178, 109 Cal.Rptr.2d 31, 26 P.3d 357), neither must it restrict the jurors’ consideration of the evidence in this regard. (See People v. Zapien (1993) 4 Cal.4th 929, 990, 17 Cal.Rptr.2d 122, 846 P.2d 704.)
(10) Death penalty defendants are not denied equal protection because the statutory scheme does not contain disparate sentence review. (People v. Jenkins, supra, 22 Cal.4th at p. 1053, 95 Cal.Rptr.2d 377, 997 P.2d 1044; People v. Allen (1986) 42 Cal.3d 1222, 1286-1288, 232 Cal.Rptr. 849, 729 P.2d 115.)
(11) Nor is the law constitutionally deficient because the prosecutor retains discretion whether or not to seek the death penalty. (People v. Ochoa (2001) 26 Cal.4th 398, 462, 110 Cal.Rptr.2d 324, 28 P.3d 78.)
(12) The prosecution‘s use of peremptory challenges to remove prospective jurors who express scruples about imposing the death penalty does not violate any constitutional guarantee. (People v. Cox (1991) 53 Cal.3d 618, 648-649, 280 Cal.Rptr. 692, 809 P.2d 351.) Nor does the fact that we generally leave to the judgment of the trial court the determination whether a prospective juror‘s attitude toward imposing the death penalty will support an excusal for cause. (See Wainwright v. Witt (1985) 469 U.S. 412, 424-429, 105 S.Ct. 844, 83 L.Ed.2d 841.)
(13) The fact that trial judges are elected does not undermine their fairness or impartiality when ruling on penalty modification applications pursuant to
(14) The use of victim impact evidence is constitutionally permissible. (Payne v. Tennessee, supra, 501 U.S. at p. 822, 111 S.Ct. 2597.)
5. Alleged violation of international law
Defendant further argues that California‘s death penalty statute is unconstitutional because the use of the death penalty as a regular form of punishment falls short of international norms of humanity and decency. In a related vein, he contends that the statute violates international law as set forth in the International Covenant on Civil and Political Rights (ICCPR) and that use of the death penalty violates international standards because only a small minority of countries consider death an appropriate form of punishment.
Setting aside whether defendant has standing to invoke the terms of an international treaty in this circumstance (see, e.g., Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C.1981) 517 F.Supp. 542, 545-547), we question whether defendant‘s argument regarding the ICCPR fails at its premise. Although the United States is a signatory, it signed the treaty on the express condition “[t]hat the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” (138 Cong. Rec. S4781-01 (Apr. 2, 1992); see Comment, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It Means? (1999) 6 Ind. J. Global Legal Studies 721, 726 & fn. 33.) Given states’ sovereignty in such matters within constitutional limitations, our federal system of government effеctively compelled such a reservation.
In any event, we have previously considered and rejected the various permutations of defendant‘s arguments. (See People v. Hillhouse (2002) 27 Cal.4th 469, 511, 117 Cal.Rptr.2d 45, 40 P.3d 754; People v. Jenkins, supra, 22 Cal.4th at p. 1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044; see also People v. Ghent (1987) 43 Cal.3d 739, 778-779, 239 Cal.Rptr. 82, 739 P.2d 1250 (maj. opn. of Lucas, C.J.); id. at pp. 780-781, 239 Cal.Rptr. 82, 739 P.2d 1250 (conc. opn. of Mosk, J.).) As succinctly stated in People v. Hillhouse, at page 511, 117 Cal.Rptr.2d 45, 40 P.3d 754: “International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. [Citations.]” Since we find no other defect in imposing the death penalty against defendant, we decline to find the law defective based on any provision of international law.
6. Delay in carrying out execution
Defendant contends the delay in his execution — he has spent almost two decades on death row — constitutes a denial of due process and cruel and unusual punishment under the federal and state Constitutions. (See, e.g., Lackey v. Texas (1995) 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (mem. opn. of Stevens, J., on denial of cert.).) This delay has been attributablе not only to the normal postconviction review process but also the fact that defendant obtained a new trial when this court granted relief on habeas corpus. As explained in People v. Anderson, supra, 25 Cal.4th at page 606, 106 Cal.Rptr.2d 575, 22 P.3d 347: “we have consistently
7. Cumulative error
Since we find nо error, we reject defendant‘s argument that any cumulative effect warrants reversal.
C. Sentencing Issues
1. Conduct credits
With respect to the sentence on his noncapital offenses, defendant was awarded credit for 7,237 actual days in custody. The defense requested the trial court award an additional 3,618 days of conduct credit (see
We recently rejected the argument that a defendant is entitled to additional days of credit in these circumstances in In re Martinez (2003) 30 Cal.4th 29, 131 Cal.Rptr.2d 921, 65 P.3d 411. (See People v. Buckhalter (2001) 26 Cal.4th 20, 40, fn. 10, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) There, the court concluded that for a defendant whose conviction is reversed on appeal, “prereversal prison time ought not be viewed as presentence custody, and ... credit accrual should be calculated in accordance with [the defendant‘s] ultimate postsentence status.” (Martinez, at p. 31, 131 Cal.Rptr.2d 921, 65 P.3d 411.) Even though reversal sets the entire matter at large (cf.
Accordingly, the trial court did not err in rejecting defendant‘s calculation of his custody credits.
DISPOSITION
The judgment is affirmed.
Notes
[*] Assigned by the Acting Chief Justice pursuant to article VI, section 6