Lead Opinion
Opinion
Defendant John Leo Capistrano was convicted at trial of one count of first degree murder (Pen. Code, § 187),
As to the murder of Koen Witters, the jury found true the two special-circumstance allegations that the killing was committed in the course of a burglary and a robbery (§ 190.2, subd. (a)(17)(A), (G)). The jury also found defendant personally used a firearm (§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)) in the commission of the crimes against J.S. and E.G., and the Weirs. As to the crimes against Michael Martinez, the jury found defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death. As to the noncapital offenses, the court sentenced defendant to consecutive indeterminate terms of life plus four years’ imprisonment for the Martinez attempted murder and 25 years to life plus 10 years’ imprisonment for the rape of J.S., and to various determinate terms on the remaining counts. This appeal is automatic. (§ 1239,
I. Facts
A. Guilt Phase
1. Prosecution Evidence
a. Defendant and His Associates
Defendant was 25 years old when the instant offenses occurred, between December 9, 1995, and January 19, 1996. He lived with his cousins Jessica and Joanne Rodriguez at the Lido Garden Apartments in West Covina. Jessica Rodriguez had formerly lived at the Pheasant Ridge apartment complex with her mother. Defendant had helped Rodriguez’s mother move out of the Pheasant Ridge apartments in November 1995. Koen Witters, the murder victim, also lived in the Pheasant Ridge complex.
Defendant was regularly in the company of three youths, Michael Drebert, Eric Pritchard and Anthony Jason Vera. Drebert and Pritchard called defendant “Dad.” Gladys Santos, a key prosecution witness, met defendant in October 1995. Santos also knew Drebert, Pritchard and Vera. Between December 1995 and January 1996, she saw defendant, Drebert and Pritchard regularly, and Vera less so. One reason she saw defendant so frequently during this period was because she was taking care of a 12-year-old girl, Justine, whom defendant treated as his daughter, although he was not her father.
b. The Murder of Koen Witters on December 9, 1995
Koen Witters was in California as part of his work for a Taiwan-based company called Free Free Industrial Corporation. He lived in a company-leased apartment in the Pheasant Ridge apartment complex. Witters was scheduled to return to Taiwan on the night of December 9, 1995. His coworker, Sheree Chen, dropped him off at his apartment at 4:00 p.m. Chen arranged to return later that evening to collect Witters’s apartment key and company-owned cell phone. When she returned about 9:30 p.m., Witters did not respond to her knocking at the door and calling his name. The airport shuttle driver arrived and also tried knocking. When there was no response, he tried the door and found it unlocked. He and Chen entered the apartment. The apartment was “a mess,” according to Chen. The driver looked into the bedroom and got Chen out of the apartment, telling her, “He’s dead, he’s dead.” They called 911 from the complex’s security office.
Witters’s apartment had been ransacked. A suitcase on the bed had been forced open and its contents strewn on and around the bed. Missing from the apartment was an Apple computer, a videocassette player (VCR) and the company’s cell phone.
Just before Christmas that year, Michael Drebert told Gladys Santos he, defendant and Pritchard had robbed Witters and that defendant had murdered him. Following this conversation, Santos asked defendant if it was true that he had “kill[ed] someone with a belt.”
Defendant told Santos that he, Drebert and Pritchard had been “scoping” out Witters’s apartment to rob it. Defendant told her he killed Witters because Witters saw him without a mask. He strangled rather than shot him because a gun would have been too loud and “shanked” Witters because Witters “wouldn’t die.” In a later conversation, he told her he had asked Drebert to help him strangle Witters, and he strangled the victim three times before cutting him. Santos testified further that after the Witters murder, defendant asked her if she knew anyone who might want a large computer. She also testified that after defendant was arrested he told her that if she talked to the police, he would kill her children.
About 9:30 p.m. on December 15, 1995, J.S. and her husband, E.G., returned to their Whittier home after visiting E.G.’s family. E.G. pulled into the garage and got out while J.S. remained in the passenger seat. A man inside the garage wearing a ski mask pointed a gun at E.G.’s face and said, “Give me your money.” J.S. heard her husband yell and saw a man with his hand stretched out toward her husband. A second man was standing behind the first one. One of the men came over to her, pointed a gun at her and motioned to her to get out of the car. One of the men told her husband, “We’re gonna go in the house.”
The men led J.S. and E.G. into the master bedroom and tied their wrists behind their backs. The men also used belts and ties to bind the victims’ ankles and knees, then laid them on the bed. Two other men joined the two men who had brought the victims into the house. All the men wore gloves and their faces were covered; two of them carried guns. Despite their masks, J.S. later identified two of the men from police lineups as Eric Pritchard and Anthony Jason Vera. The man who appeared to be the leader of the group was over six feet tall and had a “good build.” At trial, a police detective testified that defendant is six feet four inches tall and weighs 210 pounds. (The fourth man was not identified at trial.)
One of the men asked J.S. if they had children, were expecting anyone or owned firearms, and what their neighbors were like. Two of the men, including Pritchard, put guns to the victims’ heads and repeatedly asked, “Where’s the money?” The men rummaged through the dresser and the closet in the bedroom, and J.S. heard doors and boxes being opened elsewhere in the house.
One of the men removed a bullet from his gun, put it on the bed between the victims and asked, “Isn’t it big?” Two of the men, one of them Pritchard, asked both J.S. and E.G. if they would “suck dick” to save their lives.
The tall man who appeared to be the leader eventually took J.S. into the bathroom where he twice forced her to orally copulate him and then twice raped her. The second time he ejaculated into her. Afterwards, he took her into a second bedroom where Pritchard also forced her to orally copulate him. After Pritchard left, a man with a gun came in and stood guard. The tall man came in and out of the room. He pulled down J.S.’s pants, fondled her buttocks and made sexual comments about her husband. At one point, after ascertaining that J.S. was of Mexican descent, he told her that he would not
The victims’ home was ransacked. The robbers took stereo equipment, a VCR, two telephone answering machines, jewelry, small appliances and a Scepter brand laptop computer, among other items. They also took the victims’ 1989 Honda Accord.
J.S. was taken to a hospital where a sexual assault examination was conducted; oral and vaginal swabs were taken and later subjected to DNA testing.
Blood samples were obtained from J.S., defendant, Drebert, Pritchard and Vera, and also subjected to DNA testing. Testing performed on the vaginal swab indicated that defendant’s blood sample was consistent with sperm from the vaginal swab.
d. The Weir Robbery on December 23, 1995
About 5:30 p.m. on December 23, 1995, Ruth Weir arrived at her Conlon Street home in West Covina after grocery shopping. She pulled into her garage, which was detached from her house, and took groceries from the trunk into her house. When she returned to the garage she was accosted by two men wearing ski masks, one of them armed with a gun. The armed man told her to go into the house. Once inside, the men asked her if she was expecting anyone and asked about her neighbors. She told them she was expecting her husband. She heard her husband’s car pull into the driveway. She glanced out the window and saw a third man standing in the backyard.
One of the men told her to go into the dining room and lie down on the floor. She complied. She heard her husband, Patrick, come in the house and say something like, “What’s going on?” She was taken from the dining room to the family room, where her husband was lying facedown on the floor. There were three intruders in the room; two of them wore ski masks while
Angela Phillipson, a neighbor of the Weirs, saw an older two-toned beige four-door American-model car and Ruth Weir’s Taurus parked on the nearby cross street. The Taurus drove away quickly while the other car drove away at a normal speed. She later saw the same two-toned car in the vicinity of the Weirs’ home after the police had arrived.
After the robbers left, Ruth Weir called 911. When the police arrived, she inspected her house and found numerous items missing in addition to her Christmas presents. These included jewelry, cash and two sets of three ceramic angels. Her Taurus and a Ziploc bag containing commemorative coins were also missing.
The police found the Taurus the next day in the parking lot of an auto parts store near where Gladys Santos lived. The car’s stereo had been taken.
Santos testified that on the day of the Weir robbery, defendant called her and asked her to pick him up at a location near where he was staying. When she did, and she asked him what he had been doing, he said, “Well, we just robbed somebody.” He had her drive by a house in West Covina and told her a police officer lived there. He said he had stolen Christmas presents, a white car, and groceries. He directed her to another location where he said he had hidden some coins. He got out of the car, but when he returned he told her there was nothing there. Defendant brought some jewelry to Santos’s apartment, which Santos later gave to the police. The jewelry belonged to Ruth Weir.
On January 6, 1996, police stopped a beige-and-brown Buick being driven by defendant’s cousin Jessica Rodriguez. Drebert and Vera were passengers.
e. The Attempted Murder of Mike Martinez on January 19, 1996
In January 1996, Mike Martinez lived in the Lido Garden Apartments, the same apartment complex as defendant’s cousins, Joanne and Jessica Rodriguez, with whom defendant, Drebert, Pritchard and Vera were staying. Also living with Martinez was Amy Benson, the pregnant daughter of a friend. Defendant and his confederates “hung out” with Benson at Martinez’s apartment almost every day. The owner of the apartment building told Martinez that if defendant and his friends continued to come to his apartment, he would be evicted. In late December or early January, Martinez told Benson and defendant that defendant and his friends could no longer come to Martinez’s apartment. They ignored him. Martinez did not say anything more to defendant, whom he believed to be a gang member, because he was afraid of him.
On January 13, 1996, Eric Pritchard was detained by police investigating a report of a suspicious person loitering at the apartment complex. Martinez saw the detention take place. Pritchard was taken into custody because he had been reported as a runaway and was ultimately released into the custody of his mother.
Six days later, on January 19, Martinez returned home from work around 6:30 p.m. and ate dinner. He left the apartment for a while, returning around 8:00 p.m. to take a shower. When he emerged from the bathroom, defendant, Pritchard, Drebert and Vera were in the apartment. Drebert and Vera were rummaging through Martinez’s closet and desk. Someone had closed the curtains. In an angry and aggressive tone, defendant told Martinez to sit on the couch. Drebert locked the door.
Defendant accused Martinez of calling the police on Pritchard, which Martinez denied. Drebert held up a set of keys and asked Martinez which were the keys to his car. Martinez told him. He also noticed his pager, a watch and some change were missing from the top of the dresser. Defendant struck Martinez in the jaw with such force it tore his lower lip and knocked him backwards. He asked Martinez how much money he had in the apartment and, after Martinez told him a few hundred dollars, said he would kill Martinez if he found more.
The officer who responded to a neighbor’s 911 call found Martinez lying faceup on the floor in a pool of blood, unconscious and gasping for air. Martinez’s eyes were swollen shut and some of his teeth lay on the carpet beside him. A bloody bat was leaning against the couch. When the paramedics rolled Martinez onto his stomach, the officer saw puncture wounds on Martinez’s back. A bloody screwdriver was found on the couch.
Martinez had surgical staples placed in his head, he lost some of his teeth, and he was treated for stab wounds to his back. The staples were removed after about a month. Martinez endured 12 root canals, the loss of his sense of smell, and a 60 percent loss of hearing, which lasted for three months. Martinez identified defendant, Drebert, Vera and Pritchard as his assailants from photographs. Martinez’s vehicle was stolen but was recovered a few days later.
Defendant and his confederates went to Gladys Santos’s apartment after the attack on Martinez. Defendant told Santos he had “played baseball” with Martinez’s head. Two patrol officers who received a radio call about the assault on Martinez at the Lido Garden Apartments were told that a red Camaro spotted there three days earlier might have been involved. Their search for the car took them to the apartment complex where Santos lived, about a half-mile from the Lido Garden complex. Eric Pritchard was detained as he attempted to drive out of the complex in a red Camaro. Pritchard ultimately led the police to Santos’s apartment, where defendant, Drebert and Vera were arrested. Santos was also arrested because she lied to the police about knowing Pritchard and about who was in her apartment. No charges, however, were filed against her. A subsequent search of Santos’s apartment yielded several items belonging to Martinez.
2. Defense Evidence
The defense was one of mistaken identity. To that end, defendant introduced evidence to show that on various occasions he had been welcomed in Martinez’s apartment and had socialized with Martinez. He also introduced evidence regarding the physical appearance of Eric Pritchard’s brother, Willie, who was about the same height and build as defendant. Additionally, he offered evidence that a gun was found in the trunk of the car occupied by Joanne Rodriguez, Drebert, and Vera when police stopped them on January 6,
B. Penalty Phase
1. Prosecution Evidence
At the penalty phase, the prosecution’s evidence in aggravation consisted of the circumstances of the offenses of which defendant was convicted, defendant’s prior felony convictions, and his violent criminal activity while in custody. (§ 190.3, factors (a)-(c).) The prosecution presented evidence of defendant’s felony convictions for sale of marijuana and vehicle theft. The prosecution also presented evidence of four separate attacks by defendant on other jail inmates, three of which occurred while he was in custody on this case.
On June 4, 1994, defendant attacked Victor Rodela at the Los Angeles County jail apparently because he believed Rodela was homosexual. He kicked and punched Rodela. Rodela sustained a swollen and bloody upper lip and complained of pain in his jaw, back, ribs, and groin.
On October 4, 1996, defendant kicked Ricky Crayton in the mouth with sufficient force to break Crayton’s jaw.
On February 18, 1997, defendant and another inmate stabbed Mauricio Gonzalez as Gonzalez was being transported to his cell with his hands cuffed behind his back and attached to a waist chain. In the opinion of the officer who testified as an expert on Hispanic prison gangs, defendant and the other inmate were carrying out a “hit” on Gonzalez ordered by the Mexican Mafia prison gang. Prior to the instant trial, defendant was convicted of attempted murder for his attack on Gonzalez.
On June 23, 1997, defendant attacked Raymond Gonzalez in the holding cell at the courthouse in Pomona evidently because he believed Gonzalez — a prosecution witness in another case — was a “snitch.” Gonzalez sustained a golf-ball-size knot on his forehead, a bloody nose and blood on his lip and around his teeth.
In addition to this evidence, the prosecution introduced evidence that defendant mouthed the words “Get that fucker,” to another inmate as defendant nodded toward Drebert when they were all in court. As a result, Drebert’s jail status was changed to K-10, meaning that he was kept away from all other inmates.
Defendant’s girlfriend, Claudia Meza, testified she had known defendant for 11 years and had dated him from October 1995 to January 1996. According to Meza, defendant had never participated in gang activities, nor had he used drugs in Meza’s presence. Defendant told Meza he had had a troubled life, had been in and out of jail, and no one had been there for him. Meza testified that defendant planned to change his life by getting a job as a certified nurse’s assistant and having his tattoos removed.
Defendant’s father, John Catani, also testified. Catani was in prison at the time he testified. He testified he had been in prison when defendant was bom in 1970 and was incarcerated in 1976 and again from 1988 to 1990. He and defendant’s mother were together from 1975 to 1990. They fought constantly and one or the other of them would often leave for extended periods. Catani had a drug problem and defendant’s mother had a drinking problem. When defendant was 14 or 15 years old, Catani noticed his tattoos. Catani believed defendant joined a gang in his late teens. Catani had visited defendant when he was incarcerated in the California Youth Authority when he was 15 or 16, and had scolded him and warned him against becoming a gang member.
II. Discussion
A. Assertedly Improper Joinder of Charges
Defendant argues the trial court abused its discretion when (1) it denied his request to sever the Martinez (home invasion robbery, attempted murder), Weir (home invasion robbery, carjacking) and J.S./E.G. (home invasion robbery, sex offenses, carjacking) charges from each other and (2) when it joined those charges to the Witters capital charges, over his objection. We find no abuse of discretion.
1. Denial of Defendant’s Severance Motion
On November 18, 1996, defendant moved to sever the Martinez, Weir and J.S./ E.G. cases, which had previously been joined by the trial court at the prosecution’s request. Defendant also joined codefendant Vera’s motion to sever the J.S./E.G. case from the Martinez case. Defendant argued severance was required in the interests of justice because, contrary to the prosecution’s contention, the various crimes were of different classes. In addition, he argued a joint trial would be unfair because the evidence was much stronger in the Martinez case, where the victim positively identified him as a perpetrator, than it was in the other two cases, where there was little or no
“ ‘[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law.’ ” (People v. Hartsch (2010)
“ ‘ “Refusal to sever [charges] may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” ’ ” (People v. Geier (2007)
Moreover, “[a]s we explained in People v. Johnson (1988)
Here, all three incidents involved a home invasion robbery, and in all three a victim’s car was taken. The offenses occurred within the same geographical area (the eastern San Gabriel Valley) and within a relatively short period of time (between Dec. 13, 1995, and Jan. 19, 1996). Additionally, the J.S./E.G. and Weir robberies shared common characteristics in their commission. In both cases, the victims were initially approached in their garages as they returned home. The perpetrators covered their faces with ski masks and asked similar questions of the victims. Such evidence would have been cross-admissible to show a common plan or design. (Evid. Code, § 1101, subd. (b).) Defendant maintains that these similarities were not distinctive. But “[t]o establish the existence of a common plan or scheme [under Evidence Code section 1101, subdivision (b)], ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ” (People v. Avila (2006)
“We emphasize, however, that, even if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone
Defendant attempts to establish prejudice by pointing to two other factors: (1) the facts of the J.S/E.G. and Martinez cases assertedly would have inflamed the jury against him and prevented a fair assessment of the evidence in the Weir case and, (2) there was a danger of a “spillover” effect by the joinder of the stronger Martinez case, where defendant was identified as the perpetrator, to the J.S./E.G. crimes, where evidence of his participation was weak. We are not persuaded.
Defendant asserts that the sexual offenses perpetrated against J.S. and the attack on Martinez were so brutal as to “evoke an emotional bias against the defendant as an individual and make the jury convict on bad character rather than subjecting the prosecution’s evidence to scrutiny.” The issue is not whether evidence of a violent offense evokes repulsion, but whether “ ‘strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case’ on another crime.” (People v. Mason (1991)
Second, evidence of the Martinez attempted murder was not more inflammatory than the other crimes. Defendant himself equates the potentially inflammatory nature of the sexual assault on J.S. with the attempted murder of Martinez. His contention that evidence adduced regarding these charges would inflame the jury with respect to the “nonviolent robbery” of the Weirs minimizes the terrifying circumstances of the latter offense: Two days before Christmas, an elderly woman was confronted by armed, masked assailants who forced her at gunpoint into her own home; forced her and her husband to lie on the floor while they ransacked her residence; told her they would kill her if she was lying about whether there was money in the house; and when she protested the theft of her Christmas presents, held a gun to her head and
Finally, defendant contends the consolidation of the Martinez case, in which defendant was identified as a perpetrator, with the J.S./E.G. and Weir cases, in which evidence of his identity was more circumstantial, would have had a spillover effect by “improperly bolstering the prosecution’s weak evidence implicating [defendant] in the Weir and [J.S./E.G.] crimes.” As explained above, the evidence connecting defendant to the latter crimes was not weak. Accordingly, the trial court could reasonably find that the jury would be able to fairly assess defendant’s guilt as to all the charges, and did not abuse its discretion by denying the severance motion with respect to the J.S./E.G., Weir and Martinez crimes.
2. Consolidation of Noncapital Charges with Special Circumstance Case
Defendant contends the trial court abused its discretion when, after denying his severance motion, it subsequently consolidated the noncapital charges with the Witters capital murder case. Again, we find no abuse of discretion.
a. Background
The prosecution filed an information charging defendant and Drebert with the special circumstance murder of Witters and moved to consolidate that case with the case charging them, along with Pritchard and Vera, with the J.S/E.G., Weir and Martinez crimes. Defendant and Vera opposed consolidation. Vera, in particular, argued that he would be prejudiced because he was not involved in the murder. The court agreed and denied the consolidation motion. The prosecution responded by asking the court to sever defendant and Drebert from Pritchard and Vera, and then consolidate the capital and noncapital charges against defendant and Drebert. Over defendant’s continued objection, the court granted the request.
b. Discussion
As noted, section 954 represents a legislative preference for the consolidation of charges “connected together in their commission” or “of the same class of crimes or offenses” (ibid.) because such joinder “ ‘ordinarily promotes efficiency.’ ” (People v. Hartsch, supra,
Defendant nonetheless contends consolidation was error because evidence of the noncapital crimes would not have been admissible in the guilt phase of the Witters special-circumstance case had it been tried separately. The prosecutor’s theory of cross-admissibility was that defendant admitted his participation in both the Witters and Weir cases to the same witness, Gladys Santos. The prosecutor also argued Drebert’s participation in the Witters case was admissible to defeat any claim by Drebert that he was unaware that defendant intended to attack Martinez when Drebert agreed to enter Martinez’s apartment and commit a robbery. On appeal, defendant contends Santos’s testimony regarding defendant’s admission that he robbed the Weirs would not have been admissible at a separate trial of the Witters murder, nor would his admission that he killed Witters have been admissible at a separate trial of the Weir case. He argues further that the cross-admissibility of evidence regarding Drebert’s knowledge and intent is, essentially, irrelevant to the question of the cross-admissibility of the evidence as to defendant himself.
Although the prosecutor did not argue this point below, we have already noted that evidence of the geographic and temporal proximity of the four home invasion robberies, along with certain common characteristics of those crimes, would have been admissible to show a common plan for purposes of Evidence Code section 1101, subdivision (b). In any event, even if we assume there was no cross-admissible evidence between the Witters case and the other three cases, the absence of. such evidence is not dispositive. “ ‘Cross-admissibility ... is sufficient but not necessary to deny severance. [Citation.] As the four-part test is stated in the conjunctive, joinder may be appropriate even though the evidence is not cross-admissible ....’” (People v. Ramirez (2006)
The remaining relevant considerations favor consolidation. The murder of Koen Witters was not less inflammatory than the evidence of the sexual assault of J.S., the attempted murder of Martinez or the invasion of the Weirs’ home. Thus, joinder was not “ ‘ “unusually likely to inflame the jury against the defendant.” ’ ” (People v. Ramirez, supra,
3. Gross Unfairness
Defendant lastly contends that, even if the trial court’s severance and consolidation rulings were correct when made, reversal of the judgment is required because the joint trial resulted in such gross unfairness as to amount to a due process violation. (People v. Hartsch, supra,
Defendant contends joinder allowed the prosecutor to improperly use Martinez’s identification of defendant as his assailant to bolster weaker evidence of defendant’s participation in the remaining offenses. We perceive no such impropriety.
Defendant also argues he was denied due process because consolidation of the cases allowed the prosecutor to present inflammatory evidence suggesting defendant belonged to a gang. The only evidence that defendant was a gang member was Martinez’s testimony that he feared defendant because he believed defendant was a gang member. The prosecutor did not refer to this testimony. The prosecutor made a few references to the ganglike appearance and behavior of defendant and his three cohorts, but these references, fleeting and ambiguous, did not identify defendant as a member of a known street gang. To the extent defendant’s complaint is that there were suggestions defendant, Drebert, Pritchard and Vera acted like a gang in the colloquial sense, the short answer is that they did. Such a colloquial understanding is quite different, however, from a potentially prejudicial suggestion that defendant belonged to one of the well-established criminal street gangs
B. Asserted Errors During Voir Dire of Prospective Jurors
1. Dismissal of Jurors Who Stated They Would Be Unable to Impose the Death Penalty
Defendant contends the trial court violated his right to a fair trial by an impartial jury by excusing 22 prospective jurors who, in response to the court’s query, stated they would be unable or unwilling to impose the death penalty regardless of the evidence. In support of his claim, he relies on People v. Stewart (2004)
The trial court conducted a preliminary screening of four panels of prospective jurors. The court first considered financial hardship requests. It then described in general terms the nature of the case. It told the first panel; “One of the charges against [defendant] in this case is murder, and it’s alleged that it’s murder in the first degree. [][] It’s further alleged that due to the manner in which the murder was committed, that special circumstances exist. [][] If the jury in this case finds [defendant] guilty of murder in the first degree, and further finds that the special circumstances allegation is true, the jury in this case will be asked to determine the penalty in this case. [][] The jury will have two options, and two options only, and that will be life without the possibility of parole, that will be life in prison, or death. [(][] The reason I’m mentioning that is this: Now, without knowing anything at all about this case, is there any juror sitting in the audience right now that, regardless of what the evidence might be, has such feelings about the death penalty that he or she would be unable to vote to impose the death penalty in this case. [CJ[] If the answer is yes, if you’d rise, please.”
Ten jurors in the first panel responded affirmatively. The court questioned each of them to confirm they would refuse to impose the death penalty regardless of the evidence. For example, the court asked Prospective Juror C.M.: “Miss [M.], that is regardless of what the evidence is; is that correct?” When she answered “yes,” the court excused her. Prospective Juror D.G. was asked, “Miss [G.], your answer is that you would be unable to vote to impose the penalty of death, regardless of the evidence?” The juror answered “yes” and was excused. The court asked essentially the same question of the remaining eight jurors: whether, regardless of the evidence, the prospective juror would be unable to vote to impose the death penalty. It excused the jurors when they answered affirmatively.
Defendant’s objection to the procedure was overruled, as was his renewed objection later in the proceedings, and the trial court used the same procedure when conducting its preliminary screening of the other three panels. The court briefly explained the charges against defendant and the penalty options that would be before the jury should defendant be convicted and the special circumstances found true. The court then asked whether, because of a prospective juror’s feelings about the death penalty, that person would be unable to vote to impose death regardless of the evidence. The court questioned each prospective juror who answered affirmatively to confirm he or she would not vote to impose the death penalty regardless of the evidence. Some of these colloquies were more extensive than others, and on three occasions when there was ambiguity in the prospective juror’s response the trial court did not excuse the individual. In all, the trial court used this procedure to excuse 22 prospective jurors.
“Under decisions of the United States Supreme Court, prospective jurors who express personal opposition to the death penalty are not automatically subject to excusai for cause as long as ‘they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.’ (Lockhart v. McCree (1986)
Defendant characterizes the trial court’s questioning of prospective jurors as “perfunctory” and argues it was inadequate to protect his right to a fair trial by an impartial jury because the court failed “to explain[] the applicable law or conduct[] any inquiry into whether the jurors could temporarily put aside [their opposition to the death penalty] and follow the law in this case.”
“Recent decisions of this court have emphasized the importance of meaningful death-qualifying voir dire. We have reminded trial courts of their duty to know and follow proper procedure, and to devote sufficient time and effort to the process. [Citations.] At bottom, both the court and counsel ‘must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views [on capital punishment] would “ ‘prevent or substantially impair’ ” the performance of his or her duties.’ [Citation.] . . . [][] Nonetheless, the trial court has broad discretion over the number and nature of questions about the death penalty. We have rejected complaints about ‘hasty’ [citation] or ‘perfunctory’ voir dire.” (People v. Stitely (2005)
In Riccardi, question No. 68 of the juror questionnaire asked: “. . . ‘Do you have such an opinion concerning the death penalty that, regardless of the
Here, too, the trial court asked whether any prospective juror’s opposition to the death penalty would preclude her or him from imposing it regardless of the evidence. Those who answered “yes” and whose answer was confirmed by further questioning by the trial court, were disqualified. While brief, the trial court’s questioning was not rote. Some prospective jurors expanded their responses, making it even clearer their opposition to the death penalty would preclude them from imposing it. For example, one prospective juror informed the court, “I am strongly against the death penalty. I’m against it.” When the court asked, “In any case?” the prospective juror replied, “In any case. Life imprisonment, I’m okay; but death, I’m against it.” The court continued the colloquy, asking, “So you would be unable to vote to impose the death penalty in this case or in any case; is that right?” “Yes,” the prospective juror replied. She answered “yes” again when the court asked a final question: “Regardless of the evidence?” Another juror explained that even killing a fish while fishing had been so upsetting to her that “there is no way I could even consider anything like [the death penalty].” The court asked, “You couldn’t conceive of an instance so terrible that you would vote to impose the death penalty?” The prospective juror replied, “No, not at all.” Still, the court probed further, eliciting from the prospective witness repeated statements affirming she would not impose the death penalty in any case (“Everything has a right to live”), under any circumstance (“No circumstance”), and regardless of the evidence (“Regardless”).
Defendant’s reliance on Stewart, supra,
Heard, supra,
The dissent maintains that the trial court’s excusai of 16 prospective jurors from the first two panels was error because the trial court did not conduct a further inquiry after they unequivocally stated they would not impose the death penalty regardless of the evidence. The dissent would have had the trial court explain to the prospective jurors the bifurcated nature of a capital case, the possibility that evidence in aggravation and mitigation might be presented at the penalty phase and the weighing process the jury engages in with respect to such evidence, and have inquired of them whether they could put aside their views and follow the law.
As noted, the trial court exercises its discretion over the number and nature of questions about the death penalty. (People v. Stitely, supra, 35 Cal.4th at pp. 539-540.) There is no requirement that a trial court engage in the exposition the dissent would impose upon it. The issue here is not whether the prospective jurors were simply opposed to the death penalty or “did not believe in it,” a circumstance that would require further voir dire, but whether their opposition would disable them from imposing the death penalty regardless of the evidence. Although the trial court did not ask the jurors if they could set aside their feelings and follow the court’s instructions, the court’s inquiry did call on the jurors to assess their ability to vote for death. If a prospective juror states unequivocally that he or she would be unable to impose the death penalty regardless of the evidence, the prospective juror is, by definition, someone whose views “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Witt, supra,
In reviewing the trial court’s determination, we apply a “rule of deference” (Uttecht v. Brown, supra,
The dissent’s reliance on the Darden decision is misplaced. That opinion does not stand for the proposition that a trial court cannot excuse a prospective juror based on his or her unequivocal answer to a single question unless the record reveals the prospective juror received additional information regarding assessment of the penalty. The claim raised and rejected in Darden was that the trial court had misstated the Witt standard. (Darden v. Wainwright, supra, All U.S. at pp. 175-178.) The court’s examination of the context in which the challenged question was asked was to determine whether the court had “stated the correct standard when questioning individual members of the venire.” (Id. at p. 177.) The court concluded it had and that the jurors whose excusai was challenged had heard the court repeatedly do so. (Id. at pp. 177-178.)
In sum, we conclude the trial court did not improperly excuse those jurors who expressed an unequivocal inability to apply the death penalty regardless of the evidence. Although not a model for future courts, the voir dire technique used here resulted in no constitutional impropriety. We note, however, that a more complete voir dire by trial courts would assist our review of a defendant’s claim of Witt error, and we encourage trial courts to question prospective jurors at sufficient length to clearly establish their views on their ability to impose the death penalty.
2. Dismissal of Prospective Juror No. 2361
Defendant contends the trial court improperly excused for cause Prospective Juror No. 2361, a juror who, although not excused in the initial questioning discussed ante, was subsequently found to be unable to fairly consider the death penalty. We reject the claim.
Asked in his juror questionnaire about his “general feelings” toward the death penalty, Prospective Juror No. 2361 wrote, “I don’t believe in death
When questioned by the trial court about these responses, however, the prospective juror stated he could vote to impose the death penalty “[djepending on the evidence.” When asked by the court whether he could set aside his personal beliefs and apply the law objectively, he responded, “Right.” Upon questioning by the prosecutor, the prospective juror repeated his statement he could vote for the death penalty “depending on the evidence.” The prosecutor then asked: “Is there a reason why [when] the questionnaire asked you that question, or asked you the question of whether or not you could impose death on someone, despite your personal views, you indicated that you couldn’t? HD Have you changed your mind since the questionnaire?” The prospective juror replied, “No.” The defense made no further effort to rehabilitate him. Over defendant’s objection, the trial court excused the juror, explaining, “he . . . indicated in response to the district attorney’s questions that his basic decision hasn’t changed from what he wrote down on the questionnaire, [on] which he indicated he did not believe in the death penalty.”
As noted, under Witt, a prospective juror may be excluded for cause because of that individual’s views on the death penalty if such views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt, supra,
The explicit reason given by the trial court for excusing the prospective juror was that, notwithstanding his oral assertion that he could vote to impose the death penalty “depending on the evidence,” he also said the strongly anti-death-penalty views he had expressed in his juror questionnaire had not changed. In the questionnaire he stated he would decline to apply the death penalty regardless of the evidence, a statement in direct conflict with what he said in court. The record thus supports the trial court’s ruling because it shows the juror gave inconsistent statements regarding his ability to vote to impose the death penalty. Implicit in the trial court’s ruling was its conclusion the prospective juror’s questionnaire responses, rather than those he gave in court about his willingness to consider the death penalty, reflected his true state of mind. “This determination of [his] state of mind is binding.” (People v. Edwards, supra,
3. Denial of Request for Individual Sequestered Voir Dire Concerning the Death Penalty
At the time of defendant’s trial, Code of Civil Procedure section 223 provided in relevant part: “Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” This statute, enacted in 1990 as part of Proposition 115, abrogated our decision in Hovey v. Superior Court (1980)
Defendant filed a pretrial motion asking the trial court to exercise its discretion under Code of Civil Procedure section 223 and conduct sequestered voir dire. Citing Hovey, the motion asserted generally that such sequestered voir dire “is the most effective method of preventing prospective jurors from being influenced by others in the responses to the death-qualification aspect of the voir dire process and enabling the parties to discover bias.”
Without ruling on the motion, the trial court conducted its preliminary screening of the first and second panels of prospective jurors, during which,
Defendant asserts that the trial court failed to exercise its discretion under Code of Civil Procedure section 223, resulting in a miscarriage of justice. (Cal. Const., art. VI, § 13.) He also contends the trial court’s mling violated his state and federal constitutional rights to due process, equal protection, trial by an impartial jury, effective assistance of counsel, and a reliable death penalty. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.)
Defendant claims the trial court’s failure to provide reasons for its ruling amounted to a failure to have exercised its discretion under Code of Civil Procedure section 223. Not so. Unquestionably, the trial court was aware of its discretionary authority, given that defendant’s motion and the prosecutor’s comments explicitly mentioned it. There is nothing in the statute requiring the trial court to set forth its reasons for its rulings on such a request. Moreover, defendant’s motion was a generic, boilerplate one that made no attempt to show specifically why open court voir dire in this case was not practicable. (See People v. Vieira (2005)
4. Death Qualification of the Prospective Jurors
Defendant contends the process by which a death penalty jury is selected in California, and which was used in this case, violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the state Constitution, by depriving him of his rights to due process, a fair trial, a fair and rehable guilt and penalty phase determination and to a jury selected from a representative cross-section of the community. He acknowledges both we and the United States Supreme Court have rejected the claims he makes here. (Lockhart v. McCree, supra,
C. Guilt Phase Claims
1. Assertedly Erroneous Limitations on Cross-examination of Prosecution Witness Gladys Santos
Defendant contends the trial court erroneously restricted his cross-examination of Gladys Santos when it precluded questioning her about (1) her two misdemeanor petty theft convictions; (2) whether she bartered drugs for stolen property and whether her credibility was affected by her concern this information would adversely impact her custody of her children and her eligibility for public assistance; and (3) the prosecutor’s contacts with the department of children’s services (Department) on Santos’s behalf. The claims are both forfeited and meritless.
In an in camera discussion before he presented Santos’s testimony, the prosecutor disclosed Santos’s two misdemeanor convictions for petty theft. He disclosed further that, because of threats from defendant, the district attorney’s office had relocated Santos and her family. He also revealed that the Department had threatened to remove Santos’s children because, in its view, her status as a witness in this case endangered them. The prosecutor said he had spoken to the Department on her behalf to prevent the removal of the children. Finally, the prosecutor said Drebert’s attorney had told him she intended to ask Santos whether she had supplied methamphetamine to Drebert and defendant. The prosecutor had a detective ask Santos about this allegation. According to the prosecutor, Santos told the detective she had supplied defendant with methamphetamine twice because defendant was “bugging” his cousin Joanne Rodriguez with requests for drugs.
After revealing this information, the prosecutor argued Santos’s misdemeanor convictions were inadmissible. The trial court responded: “[T]he law is quite clear that the convictions themselves are hearsay, so the convictions themselves are not admissible, [¶] However, if any witnesses are prepared to testify to exactly what she did on those occasions, that would be admissible.” The prosecutor replied, “There is [yz'c] no witnesses I’m aware of that are here.” At that point, defendant’s counsel interjected that Santos had been on probation at the time of the offenses and argued her probationary status was admissible. The trial court agreed, but “without specifying what the offense is.” The court granted the prosecutor’s request her status be characterized as misdemeanor probation.
The court excluded as irrelevant evidence of the prosecutor’s dealings with the Department. Defendant’s counsel replied, “I wasn’t going to go into that.”
The trial court further ruled that the defense could inquire into the issue of whether Santos had supplied drugs to defendants. The court confirmed, in response to a question by the prosecutor, that the petty theft convictions were not admissible absent witnesses who could testify to the underlying conduct.
On the issue of Santos’s relocation, defendant argued that her request to be relocated was relevant. The court responded: “And it becomes relevant as to why she made the requests,” impliedly referring to the fact that defendant had threatened her. Defense counsel agreed: “That’s the other side of the coin.” The court replied: “So you decide if you really want to get into that, [counsel.]”
Later in the proceedings, Drebert’s attorney informed the court she intended to ask Santos whether she had dealt drugs to individuals other than
b. Discussion
“Cross-examination may expose facts from which jurors can appropriately draw inferences about the reliability of a witness, including the possibility of bias. The trial court, however, has wide latitude to restrict such cross-examination, and such testimony is properly barred unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility.” (People v. Brady (2010)
Regarding Santos’s misdemeanor convictions for petty theft, defendant contends the trial court erroneously ruled that “evidence of [the underlying] conduct had to be supplied by someone other than Santos.” The record reveals some ambiguity about whether the trial court so ruled. Consistent with our decision in People v. Wheeler (1992)
Nonetheless, any error was harmless. The jury heard evidence that Santos was on probation, had supplied defendant with drugs, and had initially been arrested because she had lied to the police about harboring him, and that her apartment had been a repository for defendant’s stolen goods. Evidence that she had also committed petty theft would not have produced a significantly different impression of her credibility.
Defendant also argues the trial court improperly denied him the opportunity to question Santos about whether she bartered drugs to third parties in exchange for stolen property. Defendant forfeited this claim because it was Drebert, not he, who sought to question Santos on this point. During the extensive discussion between Drebert’s counsel, the prosecutor, and the trial court about this issue, defendant’s counsel remained silent. He did not join Drebert’s request, much less make an offer of proof as to the relevance of the evidence to his defense (as opposed to Drebert’s). His claim is therefore forfeited. (Evid. Code, § 354.) Moreover, the trial court did not absolutely bar Drebert (or defendant) from cross-examining Santos about her alleged drug dealing. To the contrary, the trial court acknowledged that it would be a permissible area of inquiry for impeachment purposes. Reasonably viewing the discussion, the court properly required only that Drebert demonstrate a good faith basis for asking such questions by, for example, identifying a potential witness to her having dealt drugs. (People v. Pearson (2013)
Similarly forfeited is defendant’s claim the trial court improperly restricted him from cross-examining Santos regarding the prosecutor’s contacts with the Department on Santos’s behalf after the Department threatened to remove her children because of her status as a witness in this case. The trial court ruled the subject matter was irrelevant, at which point defendant’s counsel replied, “I wasn’t going to go into that.” Defendant not only failed to challenge the court’s ruling, he indicated agreement with it and a preexisting decision not to question her about the contacts, perhaps again to avoid mention of the threats defendant had made. Accordingly, defendant may not now assert the ruling was error, nor does the record support a conclusion that it was the ruling, rather than his own tactical decision, that led to the absence of cross-examination on the subject.
2. Asserted Aranda/Bruton Error
Defendant claims that Gladys Santos’s testimony regarding the circumstances under which she questioned defendant about whether he had killed
Defendant and Drebert were tried together but before separate juries to avoid defendant’s jury hearing Drebert’s detailed statement to Santos inculpating defendant. Defendant’s jury did, however, hear Santos testify to her conversation with defendant during which he admitted to killing Witters. The source of Santos’s information with which she confronted defendant was Drebert. Before her testimony, the prosecutor sought guidance from the trial court regarding how to approach that issue. The court told the prosecutor he could not mention Drebert as the source of Santos’s information. Defendant’s counsel suggested the Aranda/Bruton problem could be resolved if the prosecutor asked Santos, “Did you receive information about the homicide?” and “[D]id you receive that information from another party . . . ?” The prosecutor suggested he ask Santos whether she had received the information about the murder from a civilian source (as opposed to a police source). The trial court agreed: “Yes, civilian source with personal knowledge.”
Before the jury, the prosecutor asked Santos whether in December 1995, she had “a conversation with someone who had indicated that they were present at a murder?” When she responded affirmatively, the prosecutor clarified: “This person . . . wasn’t a police officer; is that right?” After ascertaining the conversation occurred before Christmas, the prosecutor asked: “After you had this conversation with this person who said he had been at a murder, did you have a conversation with [defendant]?” Santos said, “Yes, I did,” and that she talked to defendant three days after her conversation with her source. Asked by the prosecutor how she had begun the conversation, Santos replied: “I asked him, ‘Is it true? Did you really kill someone with a belt?’ ” The prosecutor asked to approach the bench.
At the bench, the prosecutor told the court he expected Santos would testify that defendant responded to her question by asking, “Did Mike [Drebert] tell you that?” The prosecutor argued that because it was defendant himself who brought Drebert into the conversation “there is no Aranda problem.” The court allowed the prosecutor to proceed with the questioning. Santos testified that, in response to her question, defendant eventually said,
Defendant contends the trial court violated the Aranda/Bruton rule by allowing the prosecutor to ask Santos whether the source of her information was a civilian with personal knowledge of the murder. He also claims the violation was compounded when Santos was permitted to testify about defendant’s response — “. . . Mike told you, huh?” — when she asked if he had committed the murder.
The Aranda/Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant. As we have observed, “ ‘Aranda and Bruton stand for the proposition that a “nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.” [Citation.]’ [Citation.] The United States Supreme Court ‘limited the scope of the Bruton rule in Richardson v. Marsh (1987)
This case does not present a conventional Bruton issue because the prosecution was not attempting to directly introduce codefendant Drebert’s confession at a joint trial before the same jury. Separate juries had been
Defendant argues the prosecution had no valid reason to identify the source of Santos’s knowledge at all except to invite the jury to make the connection to Drebert. That is a relevance objection he could have made at trial, but did not. The resolution of the Bruton claim before us requires a determination whether the court improperly admitted a statement by Drebert inculpating defendant. It did not. Santos never testified that Drebert told her defendant killed Witters; in fact, her testimony included her denials to defendant that Drebert was the source. The jury heard that Santos had a conversation with someone who had been present at a murder, and she later asked defendant whether it was true he had killed someone with a belt. The testimony implied that the unknown person told her defendant killed someone with a belt. Statements that incriminate by implication, however, are not within the scope of Bruton. (People v. Fletcher, supra,
3. Asserted Violation of Constitutional Right to Confrontation
Citing Crawford v. Washington (2004)
i. Background
Anjali Swienton, a forensic DNA analyst with Cellmark Diagnostics, testified about DNA testing pertaining to the sexual assault of J.S. DNA was extracted from blood samples provided by J.S., defendant, Drebert, Pritchard, and Vera and then compared to DNA extracted from oral and vaginal swabs taken from J.S. following the sexual assault on her. Swienton explained that the type of DNA testing performed in this case is called polymerase chain reaction (PCR). The PCR test allows the analyst to identify certain points along a DNA chain and then compare those between known samples and samples obtained from a crime scene or victim. There are three steps to PCR testing. DNA is extracted from the known and the unknown samples and then the DNA is amplified, a process Swienton described as making a “genetic Xerox” of the DNA. After amplification comes the “typing step,” in which comparisons are made between DNA profiles generated from known and unknown samples. Swienton explained there are two different typing processes within PCR technology, the DQ-alpha/polymarker test and the short tandem repeats test (STR). The DQ-alpha/polymarker test uses six sites along the DNA chain as a basis of comparison among the samples provided to the analyst. The STR test uses three sites and also allows the analyst to determine the gender of the donor of the sample being tested.
In this case, both the DQ-alpha/polymarker test and the STR test were conducted, the former by a Cellmark analyst named Lisa Grossweiler and the latter by Swienton herself. Grossweiler’s tests revealed that defendant could not be excluded as a donor of the DNA present on a vaginal swab taken from J.S. after she was raped. Swienton’s later STR test revealed that defendant’s DNA was consistent with the DNA from the vaginal swab. On cross-examination, Swienton testified that the frequency of the STR marker combination obtained from the vaginal swab was one in 1,300 for the Caucasian population and one in 2,700 for the Latino population.
ii. Discussion
Defendant contends his confrontation rights were violated by Swienton’s testimony regarding the DQ-alpha/polymarker test conducted by Grossweiler. “The Sixth Amendment to the federal Constitution guarantees a defendant’s right to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on ‘testimonial’ out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Crawford, supra,
In Williams v. Illinois (2012)
We need not wade further into the complexities of the issue here because Swienton properly testified that she, personally, performed one of the tests on the vaginal swab. Like the DQ-alpha/polymarker test results, the STR test showed defendant’s DNA was consistent with and did not exclude defendant as a donor of the material on the vaginal swab.
“ “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967)
Accordingly, any assumed error was harmless beyond a reasonable doubt,
b. Autopsy Evidence
i. Background
The autopsy on Koen Witters was performed by Dr. Shayla Frisby, a pathology fellow at the Los Angeles County coroner’s department. Dr. Frisby produced a 14-page autopsy report. Such reports document the pathologist’s observations of the condition of the decedent’s body, including internal and external injuries, and provide conclusions regarding the cause of death. The report is prepared at or about the time the autopsy is performed. Additionally, the body is photographed before the autopsy and additional photographs may be taken during the autopsy. Such photographs were taken in this case.
At the time of defendant’s trial, Dr. Frisby no longer lived in Los Angeles County. In her place, the prosecution called Dr. Eugene Carpenter, a medical examiner with the coroner’s office. Dr. Carpenter reviewed Dr. Frisby’s autopsy report and the photographs taken of Koen Witters’s body. Based on his review of that material, he testified about the injuries to Witters and opined that the cause of death was strangulation. The autopsy report was subsequently admitted into evidence.
Defendant contends the trial court violated his confrontation rights by admitting the autopsy report prepared by a nontestifying pathologist. The Attorney General argues the claim is forfeited because it was not asserted below. For the same reason we rejected the forfeiture argument with respect to the DNA evidence, we reject it here. (People v. Edwards, supra,
Nonetheless, though not forfeited, any error in the admission of the autopsy report was harmless. In People v. Dungo, supra,
4. Asserted Instructional Errors
a. Absence of Instruction to Consider Separately the Evidence Regarding Each Count
Defendant contends the trial court erred by failing to instruct the jury, sua sponte, to consider only the evidence pertaining to each count when considering defendant’s guilt of the particular count. The claim is both forfeited and meritless.
Pursuant to CALJIC No. 17.02, the jury was instructed as follows: “Each Count charges a distinct crime. You must decide each Count separately. The defendant may be found guilty or not guilty of any or all the crimes charged.
Even were we to find this claim was preserved, it fails on the merits. The premise of defendant’s argument — the instruction was required because none of the evidence was cross-admissible — is erroneous, as we pointed out in rejecting his severance claim. Therefore, even had defendant requested such an instruction, it would have been properly refused. (People v. Geier, supra, 41 Cal.4th at pp. 578-579.)
b. Instructions Concerning Circumstantial Evidence
Defendant contends that certain standard instructions given at his trial undermined the requirement of proof beyond a reasonable doubt, impermissibly lightened the prosecution’s burden of proof, and denied him his rights to trial by jury, to due process and to a reliable capital trial.
“We have previously rejected each of the claims that defendant makes, and we decline to reconsider these decisions. Contrary to defendant’s arguments, CALJIC Nos. 2.01 [and] 2.02 . . . , which direct the jury to accept
c. Asserted Dilution of the Reasonable Doubt Standard
Defendant points to five other standard instructions that he asserts individually and collectively diluted the constitutionally mandated reasonable doubt standard: CALJIC Nos. 1.00 (the respective duties of the judge and jury), 2.21.1 (discrepancies in testimony), 2.21.2 (willfully false witnesses), 2.22 (weighing conflicting testimony), and 2.27 (the sufficiency of evidence of one witness). He maintains the instructions, by directing the jury to decide material issues by determining which side presented relatively stronger evidence, implicitly replaced the reasonable doubt standard with a preponderance of the evidence standard.
Again, we have repeatedly rejected the same challenges to these instructions. (People v. Jones, supra,
d. Instruction Concerning Motive
The jury was instructed with CALJIC No. 2.51, on motive, as follows: “Motive is not an element of any of the crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”
e. Instruction Concerning Possession of Recently Stolen Property
The jury was instructed with CALJIC No. 2.15, regarding a defendant’s possession of recently stolen property, as follows: “If you find that the defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of robbery, home invasion robbery in concert, or carjacking. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt, [¶] As corroboration, you may consider the attributes of possession— time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, or any other evidence which tends to connect the defendant with the crime charged.”
Defendant contends this instruction unconstitutionally lightened the prosecution’s burden of proof in that it created an improper permissive inference and also because it permits only “slight corroboration” to establish guilt. He argues further the instruction allowed the jury to use evidence of his possession of the stolen property as to one crime to convict him of other crimes as to which he was not in possession of such property; specifically, he claims the jury could have used evidence of his possession of property from Martinez to convict him of the murder of Witters, from which crime scene no property was recovered. Finally, he also argues the evidence was insufficient to support the instruction.
We have previously rejected the claim that the instruction creates either a mandatory or a permissive presumption that lowers the prosecution’s burden of proof. (People v. Gamache (2010)
f. Instruction Concerning Juror Misconduct
The jury was instructed with CALJIC former No. 17.41.1, regarding jury deliberations, as follows: “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 the 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.”
In People v. Engelman (2002)
g. Instruction Concerning Felony Murder; Deficiency in the Information
Defendant raises another claim we have repeatedly rejected. He “contends the trial court erred in instructing the jury on first degree murder because the information charged him only with one count of murder in violation of section 187, subdivision (a). He characterizes that provision as a statute defining second degree murder. Because, according to defendant, the information charged only second degree murder, the trial court lacked jurisdiction to try him for first degree murder. Defendant’s argument is premised on his reading of People v. Dillon (1983)
h. Instruction Concerning the Reasonable Doubt Standard
Defendant contends that CALJIC No. 2.90, the standard instruction defining reasonable doubt given in this case, is constitutionally defective and violated his federal due process rights. His claim is meritless. As given here, CALJIC No. 2.90 stated: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. The presumption places upon the People 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 is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
“Tracking the language of section 1096, the standard instructions describe the presumption of innocence and the requirement of proof beyond a reasonable doubt, and provide the legislatively approved definition of reasonable doubt. A court satisfies its statutory obligation to instruct on these principles by giving CALJIC No. 2.90 . . . .” (People v. Aranda (2012)
Defendant asserts that CALJIC No. 2.90 required the jurors to articulate a reason for their doubts. As defendant concedes, the instruction contains no such requirement. Thus, CALJIC No. 2.90 is distinguishable from the reasonable doubt instruction condemned in People v. Antommarchi (1992)
Next, defendant contends that the language of the instruction informing the jury that reasonable doubt is not mere possible doubt was unconstitutional because it failed to adequately limit the scope of possible doubt. This language was expressly found constitutional in Victor v. Nebraska, supra,
In a pair of related claims defendant complains that the instruction failed to inform the jury the presumption of innocence continued throughout the trial. We have previously rejected a similar claim. (People v. Lewis (2001)
Finally, defendant faults the instruction for failing to affirmatively inform the jury that (1) he had no obligation to present or refute evidence; (2) any defense evidence he did produce did not shift the burden of proof; and (3) a conflict in the evidence or a lack of evidence could give rise to a reasonable doubt. CALJIC No. 2.90 clearly places upon the state the burden of proof beyond a reasonable doubt. “We presume the jury understood and followed the instruction.” (People v. Homick, supra,
Accordingly, we reject defendant’s challenges to CALJIC No. 2.90.
5. Effects of Asserted Guilt Phase Errors
Defendant claims cumulative prejudice arising from the asserted guilt phase errors requires reversal. In three instances we have assumed error — the trial court’s apparent ruling that the criminal conduct underlying Gladys Santos’s misdemeanor convictions could be established only by third party testimony (ante, at pp. 866-867), Anjali Swienton’s testimony about the results of DNA testing she did not personally conduct (ante, at p. 873), and the admission of the autopsy report (ante, at p. 874) — but found each to be harmless under the applicable standard. Apart from these three instances, we have found no error. Considering their cumulative effect, the assumed errors furnish no basis for reversal of the judgment. (People v. Homick, supra,
1. Proportionality
Defendant contends his death sentence violates the proportionality requirement of the Eighth Amendment to the federal Constitution and international law because the death penalty was imposed on him without a finding he intended to kill or acted with reckless indifference to human life. We have previously considered and rejected the Eighth Amendment claim and, in the absence of a persuasive argument why our precedents are in error, do so again. (People v. Letner and Tobin, supra, 50 Cal.4th at pp. 191-194; People v. Smithey, supra, 20 Cal.4th at pp. 1016-1017.)
We have also repeatedly rejected defendant’s claim that the death penalty statute violates international norms generally or, specifically, the International Covenant on Civil and Political Rights. (People v. Turner (2004)
2. Other Constitutional Challenges to the Death Penalty Statute
Defendant contends California’s death penalty statute and accompanying instructions are constitutionally invalid in numerous respects. We have repeatedly rejected similar claims, and, in the absence of a persuasive argument why our precedents are in error, do so again here as follows:
“The death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing, deprive defendant of the right to a jury trial, or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating circumstances or findings beyond a reasonable doubt that an aggravating circumstance (other than § 190.3, factor (b) or (c) evidence) has been proved, that the aggravating factors outweighed the mitigating factors, or that death is the appropriate sentence. . . . ‘Written findings by the jury during the penalty phase are not constitutionally required, and their absence does not deprive defendant of meaningful appellate review.’ ” (People v. Maciel (2013)
Nor is CALJIC No. 8.88 unconstitutional because (1) the instruction’s use of the phrase “so substantial” is impermissibly vague; (2) the instruction’s use of the term “warrants” is so overbroad it misleads the jury to believe it may impose the death penalty even when it concludes it is not the appropriate remedy; (3) the instruction fails to inform the jury that if the mitigating factors outweighed those in aggravation it must return a sentence of life without possibility of parole; or (4) the instruction fails to inform the jury that defendant did not have to persuade them that death was not the appropriate penalty. (People v. Linton, supra,
“ ‘The failure to require intercase proportionality does not guarantee “arbitrary, discriminatory, or disproportionate impositions of the death penalty.” ’ . . . [1] Defendant contends that his death sentence violates international law and therefore his rights under the Eighth and Fourteenth Amendments to the federal Constitution. Defendant points to no authority that ‘prohibits] a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.’ ” (People v. Edwards, supra,
E. Noncapital Sentencing Claims
1. Asserted Error Under Cunningham v. California
Defendant contends the trial court violated his Sixth and Fourteenth Amendment right to a jury trial when it sentenced him to the upper terms on the noncapital counts of which he was convicted as well as on the firearm use allegations in connection with those counts.
In Cunningham v. California (2007)
In this case, the trial court imposed the upper term for counts 2 (§ 459; burglary), 3 (§ 211; robbery of Koen Witters), 4 (§§ 211, 213, subd. (a)(1)(A); robbery in concert of J.S.), 5 (§§ 211, 213, subd. (a)(1)(A); robbery in concert of E.G.), 6 (§ 288a, subd. (d); forcible oral copulation in concert of J.S.), 7 (§ 288a, subd. (d); forcible oral copulation in concert of J.S.), 8 (§ 264.1; forcible rape in concert of J.S.), 10 (§ 215, subd. (a); carjacking of J.S. and E.G.), 12 (§ 211; robbery of Ruth Weir), 13 (§ 211; robbery of Patrick Weir), 14 (§ 215, subd. (a); carjacking of Ruth Weir), and 16 (§ 211; robbery of Michael Martinez). As to count 9 (§ 264.1; forcible rape in concert of J.S.), defendant was sentenced to 25 years to life, pursuant to section 667.61, the jury having found true the specified circumstances that the offense was committed while defendant was engaged in the commission of a burglary and that the victim was tied or bound during the commission of the offense. (§ 667.61, subd. (e)(2), (5).)
The trial court also selected the upper term for all firearm use enhancements. (Former § 12022.5, subd. (a).)
The trial court indicated it had selected the upper term for the substantive offenses because “each crime was, in the court’s view, planned and premeditated. Each of the victims was particularly vulnerable, and they were surprised and outnumbered by [defendant] and [his] associates. They were imprisoned, essentially, in their own homes. They were bound, and in some cases, gagged. Further [defendant] occupied a position of leadership, that [he] induced minors to participate in each of these crimes, that [he had] served at least one prior prison term, and that [he was] on parole from the state prison at the time” the crimes were committed.
Ultimately, only the upper terms for count 4 and the firearm use enhancements alleged in connection with counts 4 and 9 were actually imposed. The sentences on the remaining counts (5, 10, 12, 13, 14, and 16) were recalculated to one-third the midterm and made consecutive to count 4.
Among the reasons given by the trial court for imposing the upper term on count 4 was defendant’s criminal history, which included at least one prison term and the fact he was on parole when he committed the offenses. Defendant’s pattern of recidivism as evidenced by this criminal history constitutes a legally sufficient circumstance in aggravation justifying imposition of the upper term without violating his Sixth Amendment right to a jury trial. (People v. Black, supra, 41 Cal.4th at pp. 818-820; id. at p. 819 [recidivism exception to Apprendi-Blakely-Cunningham line of authority “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”]; see People v. Thomas (2001)
With respect to imposition of the upper term for the firearm use enhancements (former § 12022.5, subd. (a)) on counts 4 and 9, among the reasons given by the trial court was that the use of the firearms in each case was planned and premeditated. The evidence related to those two counts, both of which involved J.S. and E.G., shows that defendants and his cohorts arrived at the victims’ residence already armed with guns and used them to threaten and subdue the victims. Given this evidence, we conclude the jury would “unquestionably” have found true this aggravating circumstance had it been submitted to it, thus rendering any Cunningham error harmless beyond a reasonable doubt. (Sandoval, supra,
To the extent defendant challenges on constitutional grounds the trial court’s decision to impose consecutive sentences on counts 5, 10, 12, 13, 14 and 16, that contention is foreclosed by the high court’s decision in Oregon v. Ice (2009)
Defendant contends the trial court violated section 654 by sentencing him to consecutive sentences on the robbery and carjacking counts involving E.G. and J.S. (counts 4, 5 and 10) and the Weirs (counts 12 and 14). Defendant argues here, as he did in the trial court, that in each incident the carjacking and robbery were part of a single transaction and, therefore, he could be punished only once for these offenses. He contends his sentences on the carjacking counts — counts 10 and 14 — should have been stayed. We reject the claim.
As relevant here, at sentencing, the trial court selected count 4 (robbery in concert of J.S.; §§ 211, 213, subd. (a)(1)(A)) as the principal term and sentenced defendant to nine years plus the upper term of 10 years for the firearm use enhancement (former § 12022.5). The sentences on all remaining relevant counts were to be served consecutively to the sentence on count 4. On count 5 (robbery in concert of E.G.), defendant was sentenced to three years four months, and on count 10 (carjacking of J.S. and E.G.), to three years.
Defendant does not advance a section 654 challenge to the multiple sentences imposed on the four robbery counts; his quarrel is with the consecutive sentences on the carjacking counts.
Section 654 states in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (See § 215, subd. (c) [specifically prohibiting punishment for a carjacking and a robbery that are “the same act”].) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Rodriguez (2009)
In this case, defendant was convicted of two distinct offenses in the E.G/J.S. and Weir incidents, home invasion robbery and carjacking. With respect to home invasion robbery, the jury was instructed, and required to find, that defendant, “acting in concert with two or more other persons, commit[ted] [a] robbery within an inhabited dwelling house.” (§213, subd. (a)(1)(A).) Thus, this was not mere robbery, but robbery involving the particular circumstances of multiple perpetrators and the invasion of the victims’ home.
“ ‘ “Carjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.’ ” (People v. Ortega (1998)
Defendant attempts to cast his carjacking convictions as vehicle thefts that were part and parcel of a single course of conduct, beginning when the victims were removed from their cars and ending only when defendants left with the stolen items, which included the vehicles. Accordingly, defendant argues, the trial court erred when it declined to stay execution of the sentences on the carjacking counts. (See People v. Ortega, supra,
We disagree. Defendant was charged in each incident with, and the jury convicted him of, two distinct crimes of violence against the victims, robbery and carjacking. The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. Rather, viewing the evidence in the light most favorable to the trial court’s ruling, we affirm its conclusion that defendant harbored separate objectives for each offense and was appropriately punished for both.
Defendant and his cohorts confronted the victims at two points. They first accosted them at their cars and then again, inside the victims’ residences when they demanded the victims’ money and property. Had defendant simply intended to commit a carjacking, he could have done so at the initial point of contact. The evidence reveals, however, that defendant had another, distinct purpose — -to rob (and commit other crimes) inside the victims’ homes. The elevation of the threat to the victims by forcing them into their homes where defendant committed additional crimes amounts to a separate criminal objective. (See People v. Green (1996)
3. Error in Abstract of Judgment
Defendant contends, and the Attorney General concedes, the abstract of judgment incorrectly reflects a sentence of life without the possibility of parole on count 15, the attempted murder of Michael Martinez. The sentence
III. Conclusion
The superior court is directed to amend the abstract of judgment to reflect that defendant’s sentence on count 15 is life with the possibility of parole and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
Cantil-Sakauye, C. J., Baxter, J., Chin, J., and Corrigan, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was tried with his codefendant, Michael Drebert, before separate juries.
As noted, defendant and Drebert were tried simultaneously before different juries to avoid Aranda/Bruton issues. (People v. Aranda (1965)
Defendant refused to provide a blood sample voluntarily, and it had to be obtained by a court order. Similarly, defendant refused to participate in the series of lineups at which J.S. identified Pritchard and Vera. He was ordered to participate at a later lineup, but J.S. did not identify him.
In a bench conference before the testimony of the officer who detained Rodriguez, the prosecutor noted the car had been detained because it and the occupants matched the description of the vehicle involved and the people who had committed a series of street
Defendant argues that the prosecutor’s offer of proof regarding the cross-admissibility of evidence, made in opposition to defendant’s severance motion, was not supported by the record of the preliminary hearing. Defendant did not object to the offer of proof, so we may assume the prosecutor’s representations about the evidence were accurate and made in good faith. Moreover, defendant fails to cite any authority that would limit the prosecutor’s offer at a pretrial hearing on severance to the record of the preliminary hearing.
To the extent defendant is asserting that the prosecutor committed misconduct by misstating the evidence in his closing argument, that claim is forfeited by his failure to have lodged a timely objection to the statements at issue. (People v. Linton (2013)
The Attorney General contends defendant has forfeited this claim because he failed to specifically object to the adequacy of the trial court’s voir dire of the prospective jurors. Defendant objected twice to the trial court’s excusai of the prospective jurors. In any event, at the time of defendant’s trial, a no-forfeiture rule was in effect with respect to Witherspoon/Witt claims. (People v. McKinnon, supra,
“As to this and virtually all other appellate claims, defendant contends that an issue raised and decided in the trial court resulted in constitutional violations, but he did not present those constitutional theories below. In such instances, it appears that (1) the appellate claim is the kind that required no trial court action to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the United States and California Constitutions. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. (People v. Boyer (2006)
To the extent Aranda “require[d] the exclusion of relevant evidence that need not be excluded under federal constitutional law, it was abrogated in 1982 by the ‘truth-in-evidence’ provision of Proposition 8.” (People v. Fletcher (1996)
The Attorney General contends defendant forfeited any objection to these instructions because he failed to object to them in the trial court. Where, however, a defendant asserts that an instruction is incorrect in law an objection is not required. (People v. Smithey (1999)
This version of CALJIC No. 2.90 was the post-1994 version omitting the phrase “moral certainty” criticized by the United States Supreme Court in Victor v. Nebraska (1994)
Defendant had been charged with a separate count (count 11) of carjacking against J.S., but that count was dismissed pursuant to defendant’s motion under section 1118.1, and the prosecution was permitted to amend count 10 to add J.S. In sentencing defendant, however, and for reasons not apparent on the record, the trial court did not impose a separate sentence on the carjacking count as to J.S.
The trial court found that the carjacking offenses against E.G. (count 10) and Ruth Weir (count 14) were completed before those victims were forced into their respective residences where the home invasion robberies occurred. We do not agree with the trial court’s reasoning because, as we concluded in a case decided after defendant’s trial, a completed carjacking requires asportation. (People v. Lopez (2003)
Concurrence Opinion
Concurring and Dissenting. — Since the United States Supreme Court authorized reinstatement of the death penalty in 1976, the ultimate punishment has been governed by the principle that its imposition must be rationally guided by law, not left to the sentencer’s unfettered discretion. Accordingly, the test for whether an individual is qualified to serve on a capital jury is whether he or she can faithfully apply the law in accordance with instructions given by the court. Neither strong support for the death penalty nor strong opposition to it is by itself disqualifying. The crucial inquiry is whether prospective jurors can set aside their personal views on the death penalty and follow the law.
This inquiry is not one that most people have thought much about. Most people never have reason to confront such a question apart from the rare circumstance of being evaluated for jury service in an actual death penalty case. When ordinary people are put in that situation, it may be the first time that they are being asked — under oath, by a person of authority, in a proceeding that really matters — to state their views on the death penalty and to consider whether their views should yield to their sense of civic duty or allegiance to the law.
Unsurprisingly, quite a few people do not find the question to be an easy one, and trial courts face the necessary but “difficult task of distinguishing between prospective jurors whose opposition to capital punishment will not allow them to apply the law or view the facts impartially and jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial.” (Wainwright v. Witt (1985)
I.
For nearly four decades, the constitutionality of the death penalty has rested on the principle that its imposition must reflect a determination of culpability by the sentencing authority that is “reasoned” and “rational,” not “capricious or arbitrary.” (Gregg v. Georgia (1976)
From this principle, it follows that eligibility to serve as a juror in a capital case does not turn dispositively on whether a person supports or opposes the death penalty. In capital cases, “as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts.” (Witt, supra,
In conducting this inquiry, trial courts must take a practical approach to assessing a prospective juror’s fitness to serve. “[Determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” (Witt, supra,
The high court applied these principles in Darden v. Wainwright (1986)
In upholding the trial court’s ruling, the high court said: “The precise wording of the question asked of Murphy, and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty.” (Darden, supra, 477 U.S. at p. 178.) Instead, Darden looked to “the context surrounding Murphy’s exclusion to determine whether the trial court’s decision that Murphy’s beliefs would ‘substantially impair the performance of his duties as a juror’ was fairly supported by the record.” (Id. at p. 176.)
The crucial context in Darden was that “[djuring voir dire, but prior to individual questioning on this point, the trial court spoke to the entire venire . . . saying: [(J[] ‘Now I am going to ask each of you individually the same question so listen to me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question?’ ” (Darden, supra, 477 U.S. at p. 176, second italics added.) Murphy was present in the courtroom when the trial court “repeatedly” asked this more detailed and correct formulation of the question to other prospective jurors. (Id. at pp. 176-177; see id. at p. 177, fn. 3 [trial court further asked one juror: “ ‘[I]n the event that the evidence should be such that under the law that should be the legal recommendation you would be unwilling to return such a recommendation because of your conscientious beliefs?’ ”].) Thus, by the time the trial court questioned Murphy, he had been “present throughout an entire series of questions that made the purpose and meaning of the Witt inquiry absolutely clear.” (Id. at p. 178.) In addition, the high court explained, “[n]o specific objection was made to the excusai of Murphy by defense counsel. Nor did the court perceive, as it had previously [with other prospective jurors], any need to question further. Viewing the record of voir dire in its entirety, we agree . . . that the trial court’s decision to exclude this juror was proper.” (Ibid.)
Thus, Darden held that Murphy’s answer to the single question posed to him was not adequate by itself to justify excusing him for cause. But the record as a whole showed that Murphy would have understood that the trial court was asking whether he was willing to follow the law despite being personally opposed to the death penalty, and the trial court was entitled to interpret his answer accordingly. (Darden, supra, 477 U.S. at p. 178; see Uttecht, supra,
II.
The case before us presents the converse of Darden: Here the trial court excused 16 prospective jurors on the basis of their answers to a single question without any indication that those jurors understood the question to be asking whether they were “willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart, supra,
In assessing the qualifications of prospective jurors, the trial court used a two-step process. First, prospective jurors underwent an initial group screening before being asked to fill out written questionnaires. Then, after filling out the questionnaires and being instructed on the law and procedure governing capital sentencing trials, the jurors were subject to individualized voir dire led primarily by the attorneys. The venire was divided into four panels, and the trial court used the same procedure with each panel. The first and second panels were screened on Friday, October 10, 1997; the third and fourth panels were screened on Tuesday, October 14, 1997. In addition to summarizing the process here, I have reprinted the transcript of the screening process for each panel in an appendix to this opinion. Before going further, the reader may wish to read the transcript in order to see exactly what the trial court did. As explained below, the precise sequence of events — in particular, the difference between the trial court’s approach to the October 10 panels and its approach to the October 14 panels — is critical to understanding what went wrong in this case.
After the first panel was sworn in, the trial court told the prospective jurors that this was a capital case and that “[i]f the jury in this case finds [defendant] guilty of murder in the first degree, and further finds that the special circumstances allegation is true, the jury in this case will be asked to determine the penalty in this case. [¶] The jury will have two options, and two options only, and that will be life without the possibility of parole, that will be life in prison, or death.” The trial court later gave the same information to the second panel and added: “Now, people do tend to have strong opinions when it comes to the death penalty, and people are certainly entitled to have those opinions, and no such opinion is right or wrong, but we do need to find out what your feeling is in general on the death penalty before
After this brief introduction, the court began its screening of each panel by asking the following question, which I will refer to as the initial screening question: “Because of your feelings about the death penalty in general, is there anyone who would be unable to vote to impose the punishment of death in this case or in any case, regardless of the evidence? [¶] If the answer is yes, if you’d rise.” (This is what the trial court said to the second panel. The version that the court posed to the first and fourth panels did not include the words “in general,” and the version posed to the first panel did not include the words “or in any case.”)
Up to that point in the screening of each panel, the trial court had not given the prospective jurors any information about the legal framework that governs the death penalty in California. It had not explained that capital trials are bifurcated into a guilt phase and penalty phase, and that the jury at the penalty phase determines the appropriate sentence only after the parties have had the opportunity to present mitigating and aggravating evidence about the defendant and his crime. (Pen. Code, §§ 190.1, 190.3; all undesignated statutory references are to this code.) Nor had it explained that state law authorizes a death sentence only if the jury “concludes that the aggravating circumstances outweigh the mitigating circumstances.” (§ 190.3.) In other words, before answering the initial screening question, the prospective jurors had not been informed that a capital jury decides on punishment in a proceeding separate from its determination of the defendant’s guilt, that a jury chooses between death and a life sentence only after the parties have the opportunity to present new evidence not presented at the guilt phase, or that the law structures the jury’s decision by setting forth relevant aggravating and mitigating factors, and by requiring the jury to find that aggravating circumstances outweigh mitigating circumstances before imposing a sentence of death. In addition, the trial court never mentioned that the duty of jurors is to follow the law notwithstanding their personal views on the death penalty.
Ten prospective jurors on the first panel rose in response to the initial screening question. The court proceeded to ask essentially the same question or a portion of the question to each juror individually. For example, the court asked Prospective Juror T.L., “[Y]ou would be unable to vote to impose the punishment of death in this case, regardless of the evidence?” And the court asked Prospective Jurors C.M. and S.C., “[Tjhat is regardless of what the evidence is; is that correct?” The court excused nine of the 10 prospective jurors after they answered “Yes,” “Right,” “Correct,” or “That is correct” to such questions. The 10th prospective juror, K.O., was dismissed after saying,
The court repeated this process with the second panel. This time, six prospective jurors rose in response to the court’s initial screening question. Again, the court asked essentially the same question or a portion of it to each juror individually, and after answering, each was dismissed. After the first prospective juror was dismissed, the court asked defense counsel, “I assume you’re making the same objection as before?” When counsel responded in the affirmative, the objection was overruled. Only one of the six prospective jurors, A.W., said more than “Yes” or “That is correct” in response to individual questioning. Before the court could question A.W., she said, “I just don’t believe — .” The court interrupted to ask her name. After hearing her name, the court asked, “And Miss [W.], you would be unable to impose the death penalty in this case or any case, regardless of the evidence; is that correct?” A.W. answered, “Yes,” and she was dismissed. The court then distributed questionnaires to the remaining panel members.
The court allowed voir dire of the remaining prospective jurors from the first two panels after they had filled out their questionnaires. Before doing so, the court explained to those jurors the bifurcated nature of capital proceedings. It also explained that at the penalty phase “the jury will then be given the opportunity to consider additional information, and the jury will be guided by the application of certain principles of law, which I will now read to you.” The court then read the statutory aggravating and mitigating factors that a penalty phase jury must consider if relevant, and it explained that the weighing of these factors “does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them.” It also explained that “to return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that they warrant death instead of life without parole.”
The first two panels did not yield a sufficient number of prospective jurors, so the court summoned more prospective jurors four days later. The court repeated the screening process with two additional panels. As before, the court began by asking the same initial screening question. Six prospective jurors on the third panel stood up in response. At the start of each individual colloquy, however, each of these jurors summarized his or her death penalty views before the court asked any questions. Then, in the case of all the jurors except Prospective Juror G.L., the court posed questions that differed from the initial screening question. The court asked Prospective Juror J.L., “There
The court used a similar procedure to screen the fourth panel. Three prospective jurors rose in response to the initial screening question. After being questioned in a manner similar to the third panel, only one of the three, A.M., was dismissed. Prospective Juror E.B. initially told the court that he “could not participate in a jury that would be asked to impose death in any case.” The court asked further, “So you could not conceive of a case where the death penalty might be appropriate?” E.B. replied, “I could conceive — I could conceive of a case, but I don’t know that I’d want — I—I don’t know that I would want to be part of that case.” Based on this response, the court decided that E.B. needed to fill out a questionnaire. A similar colloquy ensued with Prospective Juror L.T., who initially said, “I would not like to be the one to decide on taking a person’s life.” The court asked, “So you would not want to participate?” L.T. replied, “No.” The court then asked, “Could you conceive of a case that would be so horrendous that you would vote to impose the death penalty?” L.T. replied, “Yes.” Finally, the court asked, “So depending on the circumstances or the evidence, you might be willing to vote to impose it?” L.T. replied, “Yes.” At that point, the court decided that she too needed to fill out a questionnaire. Eventually, after full voir dire, E.B. was not challenged for cause, and the defense stipulated to L.T.’s dismissal.
As with the first two panels, the court provided a detailed explanation of capital sentencing law and procedure to the remaining prospective jurors from the third and fourth panels after they had filled out their questionnaires and before full voir dire began.
In describing the trial court’s questioning of prospective jurors who stood up in response to the initial screening question, today’s opinion says, “Some
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III.
In assessing the trial court’s screening process, I begin by discussing the proper standard of review. I then show that the October 10 screening process did not adequately probe the crucial question under Witt: whether a prospective juror’s death penalty views would substantially impair his or her performance as a juror in accordance with the law. The inadequacy of the screening process, I explain, is confirmed by precedents of this court and others.
A.
Although a trial court’s excusai of a prospective juror for cause is typically afforded deference on appeal, there is no basis for deference to the trial court’s excusai of the 16 prospective jurors from the two October 10 panels. Deference is warranted where a finding of substantial impairment “is based upon determinations of demeanor and credibility that are peculiarly within a
Recall that the trial court, in questioning each prospective juror who stood up on October 10, simply repeated the initial screening question or a portion of it: “[T]hat is regardless of the evidence; is that correct?” “Your answer is that you would be unable to vote to impose the penalty of death, regardless of the evidence?” “And that would be in any case; is that correct?” Fourteen of the 16 jurors were excused after saying nothing more than “Yes,” “Right,” or “Correct” in response to such questions. Prospective Juror K.O. said, “I just don’t believe in the death penalty,” and the court did not inquire further. When Prospective Juror A.W. tried to explain her views by saying, “I just don’t believe — the trial court interrupted her and continued with the same questioning. In light of the rote and rapid process by which the trial court excused the 16 prospective jurors from the two October 10 panels, it strains credulity to suggest that the trial court based its rulings on an evaluation of “their credibility and their conviction.” (Maj. opn., ante, at p. 858.)
Noting that “the court asked more questions of some jurors and fewer of others,” the Attorney General contends that “the presumptive explanation for the difference in questioning lies in the demeanor of the jurors and the tone of their responses.” Today’s opinion makes a similar argument. (Maj. opn., ante, at pp. 857-858.) But the trial court did not simply ask more questions of some jurors and fewer of others. More precisely, the record shows a clear pattern: The court asked more questions in screening the prospective jurors who stood up on October 14 than it asked those who stood up on October 10. And whereas the court asked none of the 16 prospective jurors who stood up on October 10 any questions materially different from the initial screening question, it asked eight of the nine prospective jurors who stood up on October 14 at least one question, and sometimes several questions, different from the initial screening question. Demeanor cannot explain this pattern of disparate questioning unless one posits, implausibly, that all the prospective
On this record, deference may well be appropriate in reviewing the trial court’s dismissal of six prospective jurors from the October 14 panels. But no deference is owed to its excusai of the 16 prospective jurors from the October 10 panels. There is not the slightest hint that the trial court considered the demeanor of those jurors, which explains why today’s opinion must resort to the truism, applicable to every case on appeal, that “the trial court was present at the voir dire and we were not.” (Maj. opn., ante, at p. 860.) The trial court was present, but instead of using a screening process from which it could “ ‘glean[] valuable information that simply does not appear on the record,’ ” it relied on “the same information that is available on appeal” in excusing those 16 prospective jurors. (Avila, supra,
B.
For several reasons, it is unlikely that prospective jurors understood the trial court’s initial screening question to be asking whether they would be willing to set aside their personal opposition to the death penalty and follow the law.
The initial screening question posed to the first October 10 panel asked whether any prospective jurors had “feelings about the death penalty” that would make them unable to vote to impose death. Similarly, the initial
This problem is especially apparent with respect to the second October 10 panel, where the trial court prefaced its initial screening question by saying, “Now, people do tend to have strong opinions when it comes to the death penalty, and people are certainly entitled to have those opinions, and no such opinion is right or wrong, but we do need to find out what your feeling is in general on the death penalty before we can proceed any further, so I’m going to ask you first the following couple of very general questions.” (Italics added.) This comment, as well as the actual wording of the initial screening question posed to the second October 10 panel, informed prospective jurors that the court sought to probe their “general” feelings about the death penalty, not the specific issue of whether they could set aside their feelings in deference to the rule of law.
Moreover, it is particularly significant that the trial court, before questioning the prospective jurors, never informed them that the law provides a framework for deciding on the penalty in a capital case. Without such instruction, the prospective jurors had no reason or informed basis to consider whether they were so wedded to their personal views on the death penalty that they could not faithfully apply the law. Although it is true that many people have strong views on the death penalty in general, it is also true that most people think of themselves as dutiful and law abiding. One may well conclude, as in Darden and other cases (see post, at p. 904), that a prospective juror has decided her personal views would impair her ability to follow the law if she says she cannot vote for the death penalty after having been told what the law requires. But it is not realistic to think that the initial screening question here would have prompted prospective jurors, without any instruction on the law, to focus on how they would resolve any conflict between personal opposition to the death penalty and adherence to the law — a question most prospective jurors are unlikely to have considered before.
This last point illuminates the limited significance of the trial court’s inquiry into whether prospective jurors would be “unable” to vote for death “regardless of the evidence.” As noted, the high court in Darden upheld the dismissal of a juror based on his affirmative answer to a single question only after concluding that the juror “was present throughout an entire series of questions” — including questions that referred to what the law required — “that
Even if some prospective jurors had understood the initial screening question to ask whether they could set aside their personal beliefs and follow the law, we still could not presume that the phrase “regardless of the evidence” adequately conveyed what the law requires. Without instruction as to the existence or nature of a separate penalty phase in a capital trial, many prospective jurors would have no basis to properly understand what “evidence” the court was referring to. A layperson, unschooled in death penalty law, may well assume that after finding a capital defendant guilty, the jury must decide on the penalty without hearing additional evidence. Such a person could reasonably understand the phrase “regardless of the evidence” to mean regardless of the evidence of guilt. (See Witherspoon, supra,
Of course, we do not know what the 16 prospective jurors excused from the October 10 panels were actually thinking when they answered the initial screening question. That is because the trial court did not ask, and it appeared disinterested in anything more than one-word answers to its rote questioning. But were there any doubt that the initial screening question did not adequately probe whether prospective jurors could follow the law, we have in
As noted, E.B. initially said, “I could not participate in a jury that would be asked to impose death in any case.” But in response to further questioning by the court, E.B. said he “could conceive of a case [where the death penalty might be appropriate], but I don’t know that I’d want — I—I don’t know that I would want to be part of that case.” On that basis, E.B. survived screening. He filled out a questionnaire and heard the court’s instmctions on the law that governs capital sentencing proceedings. Then, during full voir dire, the court reminded E.B. that he had originally expressed opposition to the death penalty. E.B. explained, “when I came into, you know, the audience, as you put it, I wasn’t expecting, you know, such issues at that time. [][] But having time to look at the questionnaire and read the questions, and understanding and following the judge’s instructions, I still have an uneasy feeling, but I feel I could perform the job as a juror, basing my decision on the evidence only and on the law as instructed by the judge.” (Italics added.) In light of this exchange, E.B. was not challenged for cause.
Similarly, L.T. initially said she “would not like to be the one to decide on taking a person’s life” and agreed with the court that “[she] would not want to participate.” But when the court pressed her a little more, L.T. agreed with the court that she could “conceive of a case that would be so horrendous that [she] would vote to impose the death penalty” and that “depending on the circumstances or the evidence, [she] might be willing to vote to impose it.” On that basis, the court decided she should not be excused at the screening phase.
E.S. initially agreed with the court that she “couldn’t conceive of any instance where [she] would vote to impose the death penalty,” citing her religion. But the court went on to ask a series of questions that prompted E.S. to give some confusing answers. On that basis, the court decided that E.S. should fill out a questionnaire and receive instruction on the law. During full voir dire, the prosecutor said to E.S., “You said that you just don’t believe in the death penalty in your questionnaire. [][] Is that your honest opinion as you
These exchanges show that with only a bit of additional probing, prospective jurors who claim they are “unable” to vote for the death penalty “regardless of the evidence” may reveal that they do not actually hold such an absolute position. In addition, the voir dire answers given by E.B. and E.S. after they filled out the questionnaire and received instruction on the law show that prospective jurors who answered the initial screening question in the affirmative may have been able nonetheless to set aside their personal opposition to the death penalty and apply the law.
What happened with E.B. and E.S. is consistent with what occurs in many capital cases: Prospective jurors who give apparently disqualifying answers during voir dire or on a written questionnaire are often rehabilitated after being instructed that the law requires jurors to set aside their personal beliefs. Courts have certainly found this to be true of jurors who firmly believe that all murderers should get the death penalty or that the biblical principle of “an eye for an eye” should dictate punishment. (See, e.g., Whalen, supra, 56 Cal.4th at pp. 31-36; People v. Martinez (2009)
Indeed, not everyone who opposes the death penalty opposes it on the uncompromising ground that it is always wrong for the state to take a human
C.
In reaching a contrary conclusion, today’s opinion relies on Riccardi, supra,
In Heard, the prosecution challenged a prospective juror because he wrote in his questionnaire that he considered life without parole a more severe penalty than death. (Heard, supra, 31 Cal.4th at pp. 963-964.) Upon being informed during voir dire that the law required jurors to treat the death penalty as the more severe sentence, the juror said he would do “ ‘whatever the law states.’ ” (Id. at p. 964.) Still, the trial court excused the juror for cause. We said: “In view of [the prospective juror’s] clarification of his views during voir dire, we conclude that his earlier juror questionnaire response, given without the benefit of the trial court’s explanation of the governing legal principles, does not provide an adequate basis to support [his] excusai for cause.” (Ibid., original italics.)
In Stewart, the trial court excused five prospective jurors for cause based solely on their written answers to a questionnaire item that asked, “ ‘Do you
We first explained that the single item on the questionnaire was inadequate because it asked prospective jurors only whether they would find it “very difficult” to vote for a death sentence. “[A] prospective juror who simply would find it ‘very difficult’ ever to impose the death penalty, is entitled— indeed, duty bound — to sit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performance of his or her duties as a juror.” (Stewart, supra,
We then addressed the prospective jurors’ written comments. In discussing the prospective juror who wrote that he did not believe in taking a person’s life, we said; “Absent clarifying follow-up examination by the court or counsel. . . — during which the court would be able to further explain the role of jurors in the judicial system, examine the prospective juror’s demeanor, and make an assessment of that person’s ability to weigh a death penalty decision — the bare written response was not by itself, or considered in conjunction with the checked answer, sufficient to establish a basis for exclusion for cause.” (Stewart, supra,
Our decision in People v. Wilson (2008)
We held that the trial court’s exclusion of two prospective jurors for having selected option (b) was proper in context. (Wilson, supra, 44 Cal.4th at pp. 785-789.) Excluding those jurors was “consistent with the import of the questionnaire as a whole. The prefatory statement at the beginning of the section of the questionnaire concerning the death penalty [citation] gave prospective jurors the basic outline of the penalty phase procedures involved, including the need for a fair assessment and weighing of aggravating and mitigating circumstances. This written outline reinforced the trial court’s oral statement, delivered before the jurors were given the questionnaires, which provided similar background information.” (Id. at p. 788.) Further, “by checking [option (b)],” the prospective jurors “necessarily chose not to check [option (c)].” (Ibid.) “In short, a fair reading of the questionnaire demonstrates that [the prospective jurors] must have known the scope and nature of the discretion they would wield in the penalty phase, but nonetheless checked [option (b)], indicating that they would always vote for life over death irrespective of the facts and circumstances.” (Ibid., first italics added.)
In Avila, we held that the trial court properly dismissed four prospective jurors for cause based solely on their juror questionnaires. (Avila, supra, 38 Cal.4th at pp. 527-533.) The 24-page questionnaire in Avila consisted of 108 questions; “[s]everal pages . . . focused on the prospective jurors’ views concerning the death penalty.” (Id. at p. 528.) As today’s opinion notes (maj. opn., ante, at p. 857), items 97, 98, and 99 on the questionnaire “asked whether a prospective juror held such conscientious objections to the death penalty that, regardless of the evidence or the strength of proof, he or she ‘automatically’ would refuse to return a first degree murder verdict, find a special circumstance true, or impose the death penalty.” (Avila, at p. 531; see id. at p. 528, fn. 23.) What today’s opinion does not mention is that items 97,
Riccardi is similar. Today’s opinion focuses on question No. 68 of the juror questionnaire in Riccardi, which asked: “ ‘Do you have such an opinion concerning the death penalty that, regardless of the evidence that might be developed during the penalty phase of the trial . . . you would automatically and absolutely refuse to vote for the death penalty in any case?’ ” (Riccardi, supra,
Here, no additional question akin to item 91 in Avila or question No. 65 in Riccardi informed prospective jurors that the trial court’s initial screening question was intended to probe whether they could set aside their personal views and follow the law. Our case law applying Witt requires trial courts to do more than elicit one-word answers to a single, isolated question that neither follows nor contains any mention of jurors’ duty to follow the law.
Other courts applying Witt have taken a similar view. In State v. Sexton (Tenn. 2012)
In Fuselier v. State (Miss. 1985)
Finally, in U.S. v. Chanthadara (10th Cir. 2000)
IV.
To sum up: This is not a case where the question posed to prospective jurors tracked the language of Witt or directly asked whether they could set aside their personal views and follow the law. This is not a case where prospective jurors had been instructed on the law or on the duty of jurors to follow the law before answering what the trial court deemed a dispositive
As this court has unanimously observed: “When first called to the capital venire, prospective jurors frequently know little about death penalty law and procedure and have reflected little on their own attitudes; their responses often change between the questionnaire and voir dire as well as during examination.” (People v. Brasure (2008)
I join the portions of today’s opinion affirming defendant’s convictions and rejecting his noncapital sentencing claims.
Peña, J.,
APPENDIX TO CONCURRING AND DISSENTING OPINION
First panel — October 10, 1997
“THE COURT: As I started to say, one of the charges against Mr. Capistrano in this case is murder, and it’s alleged that it’s murder in the first degree.
“If the jury in this case finds Mr. Capistrano guilty of murder in the first degree, and further finds that the special circumstances allegation is true, the jury in this case will be asked to determine the penalty in this case.
“The jury will have two options, and two options only, and that will be life without the possibility of parole, that will be life in prison, or death.
“The reason I’m mentioning that is this: Now, without knowing anything at all about this case, is there any juror sitting in the audience right now that, regardless of what the evidence might be, has such feelings about the death penalty that he or she would be unable to vote to impose the death penalty in this case?
“If the answer is yes, if you’d rise, please.
“I need to know your name.
“PROSPECTIVE JUROR [C.M.]: [C.M.]
“THE COURT: Miss [M.], that is regardless of what the evidence is; is that correct?
“PROSPECTIVE JUROR [C.M.]: Yes.
“THE COURT: All right. You are excused. Thank you.
“Your name, sir?
“PROSPECTIVE JUROR [S.C.]: [S.C.]
“THE COURT: And Mr. [C.], that is regardless of the evidence; is that correct?
“PROSPECTIVE JUROR [S.C.]: Yes.
“THE COURT: You are excused.
“[DEFENSE COUNSEL]: Your Honor, for purpose of the record, we ask that the jurors not be excused, object to their being excused, and ask in the alternative that they be allowed to participate in a pool of jurors that determine the guilt phase, at least, of the trial.
“Your name, ma’am?
“PROSPECTIVE JUROR [D.G.]: [D.G.]
“THE COURT: Miss [G.], your answer is that you would be unable to vote to impose the penalty of death, regardless of the evidence?
“PROSPECTIVE JUROR [D.G.]: Yes.
“THE COURT: You are excused. Thank you.
“And you, Miss [O.]?
“PROSPECTIVE JUROR [K.O.]: Yes.
“THE COURT: And your answer would be the same?
“PROSPECTIVE JUROR [K.O.]: Yes, sir.
“THE COURT: Regardless of the evidence, you would be unable to vote to impose the punishment of death?
“PROSPECTIVE JUROR [K.O.]: Yes. I just don’t believe in the death penalty.
“THE COURT: Thank you. You are excused.
“PROSPECTIVE JUROR [K.O.]: Thank you.
“PROSPECTIVE JUROR [A.U.]: [A.U.]
“THE COURT: Miss [U.], regardless of the evidence in this case, you would be unable to vote to impose the punishment of death; is that correct?
“PROSPECTIVE JUROR [A.U.]; Correct.
“THE COURT: And that would be in any case; is that correct?
“PROSPECTIVE JUROR [A.U.]: Right.
“THE COURT: You are excused, as well.
“PROSPECTIVE JUROR [A.U.]: Thank you, sir.
“PROSPECTIVE JUROR [C.A.]: Yes.
“THE COURT: And you would be unable to vote to impose the punishment of death in any case; is that correct?
“PROSPECTIVE JUROR [C.A.]: Yes.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [C.A.]: Yes.
“THE COURT: You are excused, as well.
“Your name, ma’am?
“PROSPECTIVE JUROR [J.W.]: [J.W.]
“THE COURT: Miss [W], you would be unable to vote to impose the death penalty in this case or any case, regardless of the evidence; is that correct?
“PROSPECTIVE JUROR [J.W.]: Yes.
“THE COURT: You are excused, as well. Thank you.
“In the back row, your name, please?
“Excuse me, the second row.
“PROSPECTIVE JUROR [T.L.]: [T.L.]
“THE COURT: Miss [L.], you would be unable to vote to impose the punishment of death in this case, regardless of the evidence?
“PROSPECTIVE JUROR [T.L.]: That is correct, sir.
“THE COURT: You are excused.
“THE CLERK: That was [T.L.]?
“THE COURT: [Repeats Prospective Juror TJL’s name.]
“THE COURT: Thank you.
“And the lady next to her?
“PROSPECTIVE JUROR [Z.M.]: [Z.M.]
“THE COURT: Yes. And you would be unable to impose the punishment of death in this case or any case, regardless of the evidence?
“PROSPECTIVE JUROR [Z.M.]: Yes.
“THE COURT: Thank you.
“And finally, your name, ma’am?
“PROSPECTIVE JUROR [A.S.]: [A.S.]
“THE COURT: And Miss [S.], you would be unable to vote to impose the — actually, I should say you would be unwilling to impose the death penalty in this case or any case, regardless of the evidence?
“PROSPECTIVE JUROR [A.S.]: Yes.
“THE COURT: Thank you. You are excused, also.”
* *
Second panel — October 10, 1997
“THE COURT: All right. The defendant in this case, ladies and gentlemen, is Mr. John Leo Capistrano. I’m not going to tell you too much about this case, for reasons that will be obvious in just a moment.
“I should tell you that Mr. Capistrano is charged with having committed a number of different felony offenses. One of those is the crime of murder in the first degree.
“It is alleged also that because of the manner in which the killing occurred, that special circumstances exist in this case.
“The jury will have two options and two options only. That will be the penalty of life in prison without the possibility of parole, or the penalty of death.
“Now, people do tend to have strong opinions when it comes to the death penalty, and people are certainly entitled to have those opinions, and no such opinion is right or wrong, but we do need to find out what your feeling is in general on the death penalty before we can proceed any further, so I’m going to ask you first the following couple of very general questions.
“The first question is this:
“Because of your feelings about the death penalty in general, is there anyone who would be unable to vote to impose the punishment of death in this case or in any case, regardless of the evidence?
“If the answer is yes, if you’d rise.
“PROSPECTIVE JUROR: Would you say that again?
“THE COURT: Would you be unable to vote to impose the punishment of death in this case or in any case, regardless of the evidence?
“All right. Let’s start with the lady in the — I guess that’s the second row, in blue.
“Your name, please?
“PROSPECTIVE JUROR [A.W.]: I just don’t believe—
“THE COURT: I need your name.
“PROSPECTIVE JUROR [A.W.]: [A.W.]
“THE COURT: And Miss [W.], you would be unable to impose the death penalty in this case or any case, regardless of the evidence; is that correct?
“PROSPECTIVE JUROR [A.W.]: Yes.
“THE COURT: You are excused. Thank you.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Made and overruled.
“And your name in the back?
“PROSPECTIVE JUROR [Y.B.]: [Y.B.]
“THE COURT: Miss [B.], you would be unable to vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feeling about the death penalty?
“PROSPECTIVE JUROR [Y.B.]: Yes.
“THE COURT: You are excused. Thank you.
“You are Mr. [N.]?
“PROSPECTIVE. JUROR [E.N.]: That is correct, your Honor.
“THE COURT: Mr. [N.], you would be unable to vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty?
“PROSPECTIVE JUROR [E.N.]: That is correct.
“THE COURT: You are excused, as well.
“PROSPECTIVE JUROR [J.S.]: [J.S.] [Spells name.]
“THE COURT: And your answer would be the same, Miss [S.]?
“PROSPECTIVE JUROR [J.S.]: Yes.
“THE COURT: You would be unable to impose — vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty in general?
“PROSPECTIVE JUROR [J.S.]: Yes.
“THE COURT: You are excused, as well.
“In the back row?
“THE COURT: Miss [J.], would your answer be the same?
“PROSPECTIVE JUROR [MJ.]: Yes, it would.
“THE COURT: You would be unable to — you would be unwilling, I should say, to vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty in general?
“PROSPECTIVE JUROR [MJ.]: That is correct.
“THE COURT: You are excused.
“And your name?
“PROSPECTIVE JUROR [L.E.]: [L.E.]
“THE COURT: Miss [E.], you would be unwilling to vote to impose the death penalty in this case or any case, regardless of the evidence, because of your feelings about the death penalty, in general?
“PROSPECTIVE JUROR [L.E.]: Yes, sir.
“THE COURT: You are excused, as well. Thank you.”
* * *
Third panel — October 14, 1997
“THE COURT: Ladies and gentlemen, the defendant in this case is accused of having committing [íz'c] a number of different felony offenses. One such offense is the crime of murder, murder in the first degree.
“If the jury in this case finds the defendant, whose name is John Capistrano, guilty of murder in the first degree, further finds that special circumstances exist, then the jury will have to determine the penalty in this case, and the jury will have two and two options only, and that will be life imprisonment without the possibility of parole or the penalty of death.
“Persons do tend to have strong opinions one way or the other about the death penalty. There is nothing wrong about having such opinions, but I do need to find out a little bit about those opinions at this time.
“All right. Beginning with the gentleman on my left, your name, sir? “PROSPECTIVE JUROR [J.L.]: [J.L.], [spells name],
“THE COURT: All right. I’ve found you.
“PROSPECTIVE JUROR [J.L.]: I am just against the death penalty.
“THE COURT: Regardless of the circumstances of the case? “PROSPECTIVE JUROR [J.L.]: Yes, sir.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [J.L.]: Yes, sir.
“THE COURT: There is no possible case that you would vote to impose the death penalty on?
“PROSPECTIVE JUROR [J.L.]: Yes, sir.
“THE COURT: All right. Sir, you are excused. Thank you.
“Ma’am, you stood up a little late, so I’ll come back to you.
“Your name?
“PROSPECTIVE JUROR [G.L.]: [G.L.]
“THE COURT: Your last name again?
“PROSPECTIVE JUROR [G.L.]: [Spells name],
“THE COURT: All right, ma’am.
“PROSPECTIVE JUROR [G.L.]: I am strongly against the death penalty. I’m against it.
“THE COURT: In any case?
“THE COURT: So you would be unable to vote to impose the death penalty in this case or in any case; is that right?
“PROSPECTIVE JUROR [G.L.]: Yes.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [G.L.]: Yes, sir.
“THE COURT: Is that yes?
“PROSPECTIVE JUROR [G.L.]: Yes, sir.
“[DEFENSE COUNSEL]: Your Honor, our position would be the same as previously stated.
“THE COURT: I assumed that.
“All right. Miss [L.], thank you.
“You are excused, also.
“Your name?
“PROSPECTIVE JUROR [L.W.]: [L.W.], [spells name],
“THE COURT: [L.W.], Jr., yes, sir.
“PROSPECTIVE JUROR [L.W.]: I’m opposed to it because back in ’76 my brother was convicted of murder in the first degree.
“THE COURT: So you would be unable to impose the punishment of death in this case or any case?
“PROSPECTIVE JUROR [L.W.]: Any case, yes, sir.
“THE COURT: Regardless of the evidence or circumstances? “PROSPECTIVE JUROR [L.W.]: Yes, sir.
“THE COURT: Is that right?
“THE COURT: You could not even conceive of an instance where you would vote to impose the death penalty?
“PROSPECTIVE JUROR [L.W.]: No, no, sir.
“THE COURT: Sir, thank you. You are excused.
“Your name, ma’am?
“PROSPECTIVE JUROR [R.C.]: My name is [R.C.].
“THE COURT: [Repeats name]?
“PROSPECTIVE JUROR [R.C.]: Yes. I am against the death penalty.
“THE COURT: So you could not vote to impose the death penalty in this case or in any case?
“PROSPECTIVE JUROR [R.C.]: No, sir.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [R.C.]: No, sir.
“THE COURT: Regardless of the circumstances?
“PROSPECTIVE JUROR [R.C.]: No, sir.
“THE COURT: You could not even conceive of a case where you would vote to impose the death penalty?
“PROSPECTIVE JUROR [R.C.]: No, sir.
“THE COURT: You are excused. Thank you.
“Okay. Ma’am, in the front row.
“PROSPECTIVE JUROR [N.H.]: ... [1] I’m vegetarian. I don’t even — I went fly fishing in the summer, and a fish died, and I cried, so no, there is no way I could even consider anything like that.
“THE COURT: Have you given this subject any thought before right now?
“THE COURT: You couldn’t conceive of an instance so terrible that you would vote to impose the death penalty?
“PROSPECTIVE JUROR [N.H.]: No, not at all.
“THE COURT: So you couldn’t vote to impose it in this case or any case? “PROSPECTIVE JUROR [N.H.]: Everything has a right to live.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [N.H.]: Regardless.
“THE COURT: Under no circumstances?
“PROSPECTIVE JUROR [N.H.]: No circumstances.
“THE COURT: You are excused, as well, Miss [H.] Thank you.
“And your name?
“PROSPECTIVE JUROR [E.S.]: [E.S.]
“THE COURT: [G.S.]?
“PROSPECTIVE JUROR [E.S.]: [K], [spells first name],
“THE COURT: Okay, I see.
“PROSPECTIVE JUROR [E.S.]: I’m against it, so maybe I would be able to voice my opinion on that.
“THE COURT: You couldn’t conceive of any instance where you would vote to impose the death penalty?
“PROSPECTIVE JUROR [E.S.]: I don’t think so.
“THE COURT: No crime could be horrible enough for you to do that?
“THE COURT: I’m having a hard time hearing you. Because of your religion?
“PROSPECTIVE JUROR [E.S.]: I said everything that has breath praise the Lord, and I — I just couldn’t be the one to say yes.
“THE COURT: So you could not vote to impose that penalty in this case or any case?
“PROSPECTIVE JUROR [E.S.]: No.
“THE COURT: Regardless of the evidence?
“PROSPECTIVE JUROR [E.S.]: No.
“THE COURT: Regardless of the circumstances?
“PROSPECTIVE JUROR [E.S.]: No.
“THE COURT: You couldn’t even conceive of a case where you would think that a death penalty would be appropriate?
“PROSPECTIVE JUROR [E.S.]: No, not for murder, no.
“THE COURT: Is there some other crime that you would think would be appropriate?
“PROSPECTIVE JUROR [E.S.]: Might be a possibility, but not murder, no.
“THE COURT: What crime would you think would be appropriate?
“PROSPECTIVE JUROR [E.S.]: In my case, maybe like a misdemeanor or something like that, something that’s not real bad.
“THE COURT: So you think that the death penalty would be appropriate for some lesser crime?
“PROSPECTIVE JUROR [E.S.]: Uh-huh, death penalty, yes.
* * *
Fourth panel — October 14, 1997
“THE COURT: All right. Ladies and gentlemen, I’m not going to tell you very much about this case, because in order for you to answer the first series of questions concerning your qualifications to serve as jurors, you don’t need to know anything about the case, other than to tell you that the defendant in this case, Mr. John Capistrano, is facing a number of felony charges in this case.
“One of them is the charge of murder in the first degree.
“Now, if the jury in this case returns a verdict of guilty of murder in the first degree, and further finds that the special circumstances that are alleged against Mr. Capistrano are true, there will then be a penalty phase in this case, in which the jury will be asked to determine the punishment.
“The jury will have two options and two options alone: life without the possibility of parole, life in prison, that is, without the possibility of parole, or death, so this is a death penalty case.
“Now, there are persons who have strong feelings about the death penalty in the State of California, and there is nothing wrong with having such opinions, but I need to know what those opinions are.
“So I’ll ask you first if any of you have such strong feelings about the death penalty that you would be unable to vote to impose the punishment of death in this case or in any other case, regardless of the evidence or the circumstances?
“If your answer to that is yes, if you would stand.
“All right. Let’s start with you, sir.
“PROSPECTIVE JUROR [E.B.j: [E.B.j
“THE COURT: Yes, sir?
“PROSPECTIVE JUROR [E.B.j: I could not participate in a jury that would be asked to impose death in any case.
“PROSPECTIVE JUROR [E.B.]: I could conceive — I could conceive of a case, but I don’t know that I’d want — I—I don’t know that I would want to be part of that case.
“THE COURT: Well, I think we’re going to need to ask you some more questions about that.
“Have a seat.
“Your name?
“PROSPECTIVE JUROR [AM.]: [A.M.]
“THE COURT: What was your name again?
“PROSPECTIVE JUROR [A.M.]: [Repeats name.]
“THE COURT: Yes, there you are. I’m sorry.
“PROSPECTIVE JUROR [AM.]: I can conceive of someone doing something wrong where people would consider that he deserved death. I don’t— I’m against the death penalty.
“THE COURT: In general?
“PROSPECTIVE JUROR [A.M.]: Flat out.
“THE COURT: So you could not conceive of a case where the death penalty might be warranted?
“PROSPECTIVE JUROR [A.M.]: My heart is racing just thinking about deciding to make that judgment.
“THE COURT: So are you indicating to me then that you could not vote to impose the death penalty in this case or in any other case, regardless of the evidence or circumstances?
“PROSPECTIVE JUROR [A.M.]: No.
“Life imprisonment without the possibility of parole; death, no.
“PROSPECTIVE JUROR [A.M.]: I could not vote for the death penalty.
“THE COURT: Under any circumstances?
“PROSPECTIVE JUROR [A.M.]: Under any circumstances.
“THE COURT: Appreciate your letting me know that, Miss [M.]. You are excused. Thank you.
“Your name, ma’am?
“PROSPECTIVE JUROR [L.T.]: [L.T.]
“THE COURT: Yes.
“PROSPECTIVE JUROR [L.T.]: I would not like to be the one to decide on taking a person’s life.
“THE COURT: Well, you wouldn’t be the only one. It would be twelve jurors who would have to agree.
“PROSPECTIVE JUROR [L.T.]: I—
“THE COURT: So you would not want to participate?
“PROSPECTIVE JUROR [L.T.]: No.
“THE COURT: Could you conceive of a case that would be so horrendous that you would vote to impose the death penalty?
“PROSPECTIVE JUROR [L.T.]: Yes.
“THE COURT: So depending on the circumstances or the evidence, you might be willing to vote to impose it?
“PROSPECTIVE JUROR [L.T.]: Yes.
“THE COURT: Okay. Have a seat.”
Associate Justice bf the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.