THE PEOPLE, Plaintiff and Respondent, v. SOCORRO SUSAN CARO, Defendant and Appellant.
S106274
SUPREME COURT OF CALIFORNIA
June 13, 2019
Ventura County Superior Court CR47813
Justice Cuéllar authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Kruger, and Groban concurred. Justice Liu filed a concurring
Opinion of the Court by Cuéllar, J.
In April 2002, defendant Socorro Susan Caro was sentenced to death for killing three of her four children. This is her automatic appeal. We affirm the judgment below.
I. BACKGROUND
Caro and her husband, Dr. Xavier Caro (Xavier1), had four children: Xavier (known as “Joey“), Michael, Christopher, and G.C. On November 22, 1999, Joey, Michael, and Christopher were shot to death in the family home in Camarillo, California. Joey was 11, Michael was 8, Christopher was 5, and G.C. was 1. The Ventura County District Attorney filed a felony complaint against Caro on December 17, 1999, and an information on April 24, 2000. Caro was charged with three counts of murder (
Early on in their relationship, Caro began working as Xavier‘s office manager. In August 1999, Xavier fired Caro because, according to Xavier, she had been providing more money than expected to her parents while allowing the medical office‘s rent to go unpaid. Xavier had also been having an affair with someone who worked in his office. Xavier and Caro had discussed divorce at various points in their relationship, and after firing Caro, Xavier consulted a divorce lawyer. Xavier testified he did not actually want a divorce. Indeed, Xavier thought their marriage had improved after Caro and he agreed in August 1999 to go to counseling, and Caro agreed to take Prozac.
On the night of the shootings, November 22, 1999, Xavier returned from work between 6:00 and 6:30 p.m. Xavier had dinner with Caro, and they drank margaritas. Joey made a negative comment about his parents’ drinking. Xavier and Caro argued: Xavier wanted to discipline Joey, but Caro did not. Later, after Xavier removed the television and videogame system from Joey‘s room as punishment, Xavier and Caro continued their argument. Caro accused Xavier of not loving her, and not respecting her. Xavier said he was leaving. Caro grabbed him by the shoulders, slid to the floor, and held his ankles as he pulled away from her. Juanita came up the stairs and yelled, “Get out, you brute.” Xavier entered the garage, got in his 1989 maroon Mercedes, and drove away.
Juanita‘s testimony about the end of the fight that evening was similar, though she testified that Xavier kicked Caro “on the legs” when Caro was on the ground. Juanita told police that after Xavier left, Caro said, “Now, Mom. I have no money now. I don‘t know what I‘m going to do,” and “Mom, we‘re going to starve now.” Caro also told Juanita that night, “Well, I guess I‘m crazy like he says I am” and “Mom, he says I‘m crazy.” Around 9:00 p.m., Juanita left the house to return to her home. Caro seemed normal. Juanita returned a few minutes later because she forgot her glasses and left again soon after.
Xavier testified that he drove to his office in Northridge, which was 40 to 46 minutes away from the house. Caro called Xavier multiple times on his car phone and at the office. When Xavier answered the phone at the office, Caro was crying and agitated and asked Xavier to come home. Caro then calmly stated, “That‘s the thing I‘ve always admired about you, X. You
When Xavier returned home, he found Caro lying on her right side in a semifetal position on the floor of their master bedroom. Xavier noticed a bloodstained froth around her mouth and thought she had overdosed. Xavier called 911 from a phone in the bedroom at 11:21 p.m. He told the operator that Caro might have overdosed or slit her wrists. Xavier rolled Caro onto her back and noticed a .38-caliber revolver underneath Caro, and several expended shell casings. Xavier had previously purchased the gun for Caro, along with a gun for himself, for self-defense. Xavier picked up the gun and saw a single shell casing in the five-round cylinder.
The 911 operator asked if there were any children in the house. Xavier went to Joey‘s bedroom and found him lying face up covered in blood. Xavier checked for a pulse but found none. He then entered Michael and Christopher‘s room and saw them lying together in the bottom bunk of the bunk bed. Their faces were ashen and neither boy was breathing. Xavier returned to the master bedroom and told the 911 operator that his children had been shot. Xavier kicked Caro and yelled at her.
The 911 operator asked how many children were in the home. Xavier went to G.C.‘s crib, found G.C. unharmed, and told the 911 operator, “We‘ve got one alive here.” Xavier picked up G.C. and went to check the other children again. Joey and Christopher were not breathing, but Michael was taking deep gasping breaths. Xavier attempted to perform CPR on Michael, until a fragment of Michael‘s skull came off in his hands. Xavier ran out of the room and told the 911 operator that first responders needed to get there fast. He called Juanita on a second phone line at 11:26 p.m. and told her that Caro “shot the babies.” Xavier went to the front door where he encountered two Ventura County Sheriff‘s deputies, who ordered him outside. Xavier had G.C. in his arms and was distraught.
When officers found Caro in the master bedroom, she was surrounded by several pools of blood, a pool of vomit, and expended shell casings. Caro was airlifted to a hospital. Meanwhile, back at the family‘s home, Juanita had arrived. In a conversation between Xavier and Juanita that an officer recorded, Xavier alternated between a calm and visibly upset demeanor. He stated: “Why did she do this?“; “She killed my best friend. She killed my Joey“; and “She wasn‘t messing around. She shot them all in the head.”
Caro underwent surgery on the night of the shootings for a gunshot to the head. Caro also had bruising on her right bicep, bruising on the inside of her thighs, and a fractured foot that was swollen and bruised. The forepart of the foot had broken away from the middle part of the foot and was repaired surgically a week later. Such an injury most commonly occurs by landing on a pointed foot so that the foot is twisted, which can happen when falling down stairs. The injury may also occur from a person falling on his or her foot with the person‘s own weight, or if someone else stands on the foot as the person falls.
The day after the shootings, Detective Cheryl Wade went to Caro‘s hospital room and recorded the entire two-and-a-half to three-hour visit. Wade asked Caro if she had taken a fall, and Caro said she was not sure and could not remember. Caro said at one point that she “might have fallen down the stairs,” and that she was bruised by “wrestling with a boy.” But she reiterated on multiple occasions that she did not remember how she had been hurt. A defense expert enhanced the audiotape and believed Caro said, “You have to ask the boys” rather than “wrestling with the boys.”
Detective Wade told Caro that her boys had been hurt, that they had died, and that Caro was a suspect. Caro began crying and screaming. Caro asked what Xavier had said and asked where G.C. was located and whether he was okay. Detective Wade later brought Juanita into Caro‘s room and recorded Juanita‘s conversation with Caro. Caro said that “X is going to need somebody.” Juanita asked, “Why did you do this?” Caro replied, “My babies. My babies. I‘m sorry. I‘m sorry.”
Lisa VanEssen worked at Xavier‘s office. She testified that Caro had previously said she did not think Xavier loved her and was worried that Xavier would leave her and the boys with nothing. Around September 1999, VanEssen asked Caro how she was and Caro replied, “Not good. Sometimes I think it would just be better if I wasn‘t here.” When VanEssen reminded Caro of her “four boys that need [her],” Caro replied, “What would it matter?”
Investigators found a gun safe in Caro and Xavier‘s master bedroom closet; the safe showed pry marks that could not be dated. The door to the gun safe could be opened without entering a combination. There were no testable fingerprints on the gun, but the gun was also stained, so it was
In the master bedroom, investigators found bullet fragments or evidence of bullet fragments on the floor, on the bed, in the wall above the bed, and in the ceiling. A forensic scientist opined that the wall and ceiling damage was consistent with the gun being held to the side of Caro‘s head, and fired in an upward direction. The doctor who performed surgery on Caro on the night of the shootings confirmed that the bullet had traveled “upward on the side of the defendant‘s head.”
Investigators found two bloody handprints on the doorjamb between Joey‘s bedroom and the bathroom that matched Caro‘s hand, and blood above one of the handprints matched Joey‘s blood. Stains on the pajama shorts and T-shirt Caro was wearing tested positive for blood. DNA testing matched some of the stains to Joey, some to Christopher, and some to Caro. According to a forensic scientist, projected blood caused some of the stains on Caro‘s shorts. He opined that one of the stains on Caro‘s shorts contained Christopher‘s brain matter, and a piece of Joey‘s scalp may have caused one of the other stains. Two blood stains in the master bathroom contained Joey‘s blood, one of those stains had potential contributions from Christopher. Material under Caro‘s fingernails tested positive for blood and contained DNA from Caro, Joey, and Christopher.
Various blood stains were found on Xavier‘s sweatpants, shirt, and jacket. Blood stains on Xavier‘s sweatpants, G.C.‘s socks, the carpet, and the stair railing matched Michael‘s DNA. Most were transfer stains, but drops of blood caused stains on Xavier‘s sandals and on the knee of his sweatpants.
Based on blood spatter patterns, Rod Englert, a crime scene reconstructionist, opined that Joey was facedown in bed when shot. He testified that Michael was face up when shot. Christopher, who was sleeping next to Michael, sat up and was shot twice, as the first shot failed to kill him immediately. The jury saw an animation depicting Englert‘s opinion on how the shootings of Michael and Christopher occurred. Englert testified that the inner thigh of Caro‘s shorts showed a high velocity spatter — the kind associated with gunshots. Englert opined that the person wearing the shorts shot Christopher and he expressed confidence “beyond a reasonable degree of certainty.” Englert found transfer stains and no evidence of blood from a gunshot on Xavier‘s jacket. Englert concluded that the person wearing the jacket was “not involved” in “a shooting.” He concluded gunshot spatter did not cause the blood stains on Xavier‘s pants and sandals.
The defense presented evidence that the white truck Xavier saw outside the gate while leaving the hospital had entered hospital grounds around 10:00 p.m., that Joey and Michael had died at 10:00 p.m. or later, and that it only took 30 minutes to drive home at night — implying Xavier had enough time to kill the children and shoot his wife before the 11:21 p.m. call to 911. Defense expert Herbert MacDonnell reviewed the forensic evidence. He examined the shorts Caro was wearing under a microscope and did not find any high velocity impact spatter or mist. He did find projected blood on the inner crotch but opined that it was not the result of the shootings because of the confined spread of the stains and the small amount of blood. MacDonnell found transfer stains on Xavier‘s jacket, socks, and pants.
Dr. Frederick Lovell, a medical examiner, reviewed evidence concerning Caro‘s head wound. He testified that the gun was held tightly against Caro‘s head, at a right angle to the bone above Caro‘s ear. The gun would have been pointed “[v]ery slightly downward.” When asked how Dr. Lovell would explain a bullet fragment found in the ceiling, he testified to previously saying that he did not know how it got there. He testified that it was “highly unlikely” that the gunshot wound was self-inflicted. It would have been difficult to hold the gun against the skull at the slightly downward angle. The bruises on Caro‘s arms were consistent with finger grab marks. A criminalist found hair in Caro and Xavier‘s master bedroom that looked like it had been pulled out, though some, maybe all, of the hair belonging to Caro came out by the force of the gunshot.
The defense presented a number of character witnesses. They testified that Caro was an admirable, friendly, nice person who loved her children. Caro‘s parents testified about their financial arrangements with Xavier and Caro. Juanita testified that, after the shootings, Xavier told her: “Wait til you hear the 911 call, Juanita. You‘re gonna blow your mind.” Later, Xavier told Juanita, step by step, how Caro killed the boys.
Caro testified in her own defense. Caro was forthcoming with Xavier about expenditures while she served as office manager, and wrote checks to her parents for family trip expenses only after discussing them with Xavier. Caro
Caro and Xavier were having marriage difficulties. In June 1999, Caro stayed at a hotel for three days to get away from the family. In August 1999, after Xavier fired Caro, he told Caro that they should separate. Later that month, Xavier told Caro that he was going to a divorce lawyer and discussed with Caro division of assets. Caro did not believe Xavier kept the appointment with the divorce lawyer, but later found notes from the meeting. Caro wanted to make the marriage work and was unaware of Xavier‘s affair.
Xavier had purchased Caro a firearm for home protection, as well as lessons for her to learn how to use the gun. Xavier never told Caro the combination to the gun safe and would get the gun out for her before he would go out of town. Caro would pop the safe open with the prong end of a hammer to put the gun back. Caro had not fired the gun since before Christopher was born and denied ever brandishing it at Xavier.
Caro had only partial memories of the day on which the shootings occurred. She remembered the fight she had with Xavier. She remembered Xavier saying he was leaving, and she thought he meant he was leaving for good, though Caro did not remember Xavier actually leaving to go to the office. Caro could not remember what she wore that night. But she would not have been wearing the shorts she was found in because they were maternity shorts that were too big for her. She had never seen the T-shirt she was found wearing. Her last memory of that night was standing in the master bedroom closet, looking at a pitcher of margaritas. Caro had no memory of hurting her children. When she woke up she thought they had been in a car accident because she was injured, and Detective Wade said the boys were hurt. When she was told her boys were dead, she did not know how they died. Caro was sure she did not kill her children.
On November 5, 2001, the jury found Caro guilty of three counts of first degree murder, found the firearm enhancements true, and found true the multiple-murder special circumstance. On November 6, 2001, Caro withdrew her plea of not guilty by reason of insanity.
The penalty phase began on November 27, 2001. In aggravation, the prosecution presented evidence of prior acts that Caro allegedly committed. On June 30, 1992, Caro and another woman argued over a parking space.
Xavier narrated a family video showing scenes of the three boys who had been killed. Xavier testified about the boys and their character traits.
In mitigation, the defense presented evidence that Caro was a happy, obedient child. Her parents never used physical punishment. Caro played basketball and volleyball, was a cheerleader, and graduated from high school with a “C” average. Xavier was the second boyfriend Caro ever had. Caro‘s first boyfriend testified that she was never violent with him or anyone else. Extended family members described Caro as a good, patient mother. Caro‘s cousin, a pastor, and the Ventura County Jail chaplain, testified that Caro was a person of compassion, caring, and genuine Christian faith. Caro never admitted in her confidential sessions with the pastor and chaplain to killing her children. The children‘s teachers testified that Caro spent hours volunteering in her children‘s classrooms, and observed that she was a friendly, caring, and affectionate mother.
Caro had a blood-alcohol level of 0.138 percent on the night of the shootings. According to a defense toxicology expert, Caro would have been staggering, would have felt sedated, and would have been impaired in her ability to process information. Her blood tested positive for Prozac and Xanax. Caro suffered from depression at the time of the shootings. A forensic psychiatrist attributed the killings and suicide attempt mostly to Caro‘s depression. He believed Caro fell in the class of depressed and suicidal women who “primarily commit[] suicide” and kill their children as “a secondary act” to “prevent something bad from happening to the children they love.” A clinical neurologist testified that Caro suffered residual brain effects seven months after the shootings. He diagnosed Caro with chronic
On December 10, 2001, following the penalty phase, the jury returned a verdict of death. On April 5, 2002, the trial court denied a motion for new trial and a motion to modify sentence. The trial court sentenced Caro to death on each count of murder, with concurrent sentences of 25 years to life for the firearm enhancements.
II. DISCUSSION
A. Jury Screening Issues
i. Caro‘s Presence for Stipulated Excusals of Jurors
Caro contends she was entitled, as a matter of constitutional and statutory law, to be present when counsel for both sides discussed juror hardship in chambers and agreed by stipulation to excuse 62 potential jurors in an e-mail to the trial court. Jury screening in this case began on July 17, 2001. On that day, the trial court started introducing groups of prospective jurors to the facts of the case, soliciting applications for hardship excusals, and directing prospective jurors to fill out comprehensive juror questionnaires. The next day, the parties and the trial court discussed the prospect of stipulating to the excusal of some jurors for cause. On July 23, 2001, the prosecution stated it had begun “informal discussions with the defense” about jurors “who both sides think will be challenged, likely successfully, for cause.” Later that day, the trial court scheduled the parties to return on July 27, 2001, to address such stipulations. Defense counsel indicated she would exchange her list of potential “for cause” stipulations with the prosecution. On July 26, 2001, defense counsel sent an e-mail to the trial court identifying 62 prospective jurors both parties agreed the court could excuse “due to either hardship or cause.” Fourteen of the excusals included the notation “(hardship).” The e-mail did not indicate specific reasons for the remaining 48 prospective jurors. On July 27, 2001, the trial court stated that the e-mail stipulation had been filed and placed in the record. Caro was present at the proceedings before and after the e-mail stipulation. We assume Caro was absent from the informal discussions and agreement on stipulations.
Caro argues she had the right to be present for these stipulation discussions and the stipulations. The federal Constitution provides a defendant the right to be present if “(1) the proceeding is critical to the outcome of
Caro fails to distinguish our prior decisions denying similar claims. In Ervin, the defendant challenged his absence from counsels’ jury “screening” discussions about stipulating to the excusal of “prospective jurors whose questionnaires showed they were probably subject to challenge and excusal.” (Ervin, supra, 22 Cal.4th at p. 72.) We found that the defendant‘s presence at such discussions “would have served little purpose.” (Id. at p. 74.) The same is true here. Caro argues “she might have discouraged” the stipulated excusals. But even if such an argument could establish that Caro‘s presence was necessary, such a contention does not establish prejudice: It is “unduly speculative” because nothing in the record indicates Caro would have actually discouraged the stipulations. (Virgil, supra, 51 Cal.4th at p. 1234.)
Caro asks us to reconsider our precedent in light of the Washington Supreme Court‘s decision in State v. Irby (2011) 170 Wash.2d 874 [246 P.3d 796]. But in Irby, neither the parties nor their attorneys were present on the first day of jury screening, when the trial court administered juror questionnaires. (Id., 246 P.3d at pp. 798-799.) During that first day, the trial court e-mailed the parties and suggested that reason existed to excuse certain jurors — some for cause. (Ibid.) The e-mail indicated that the trial court wanted to confirm the excusals that same day, and the parties agreed by e-mail to dismiss some of the suggested jurors within the hour. (Ibid.) Irby is distinguishable from this case. The trial court here did not rush an out-of-court for-cause jury excusal proceeding within an hour, nor did it otherwise fail to provide a material opportunity for Caro to even see the prospective jurors. Irby thus gives us no occasion to reconsider our precedent in this case. We conclude the parties’ stipulation to excuse jurors by e-mail did not violate Caro‘s right to be present or cause her prejudice.
Caro asserts the trial court erred by accepting the parties’ stipulated excusals, identified in defense counsel‘s July 26, 2001, e-mail, without further inquiry. She argues that the trial court should have determined whether each juror was properly excusable for cause. She contends the trial court‘s failure to make these determinations led to the improper excusal of qualified jurors and produced a biased jury.
We find Caro‘s challenge to the stipulation procedure forfeited and without merit. Although Caro attempts to characterize trial counsel‘s e-mail and subsequent conduct otherwise, we find it clear in the record that counsel stipulated to these excusals. Counsel then expressed no objection to the court‘s dismissing the listed prospective jurors based on the parties’ agreement. These actions forfeited her challenges on appeal. (E.g., People v. Duff (2014) 58 Cal.4th 527 (Duff); People v. Booker (2011) 51 Cal.4th 141, 161 (Booker); see also People v. Visciotti (1992) 2 Cal.4th 1, 38; People v. Mitcham (1992) 1 Cal.4th 1027, 1061 (Mitcham).)
Even if Caro‘s argument were not subject to forfeiture, we find it unpersuasive on the merits. As we have held time and again, trial courts commit neither constitutional nor statutory error when they permit counsel to prescreen juror questionnaires and stipulate to juror dismissals. (See, e.g., Duff, supra, 58 Cal.4th at p. 540; Benavides, supra, 35 Cal.4th at pp. 88-89; Ervin, supra, 22 Cal.4th at p. 73.) Stipulations benefit all parties “by screening out overzealous ‘pro-death’ as well as ‘pro-life’ venirepersons, and by substantially expediting the jury selection process.” (Ervin, at p. 73.) Here, as in other cases where we have found no error, “once the preliminary screening process had concluded, the court and counsel then conducted the usual voir dire examination of the remaining prospective jurors in selecting the actual jurors who would serve on defendant‘s jury.” (Ibid.) Caro fails to establish error on these facts or persuade us to overrule our prior precedent.
Finally, to the extent Caro complains that this procedure resulted in the improper excusal of jurors for cause, she is not entitled to relief. (See People v. Potts (2019) 6 Cal.5th 1012, 1052-1053 (Potts); Duff, supra, 58 Cal.4th at p. 540; Booker, supra, 51 Cal.4th at p. 161; Mitcham, supra, 1 Cal.4th at p. 1061.)
iii. Dismissal of Two Prospective Jurors for Cause
Caro argues the trial court improperly dismissed Prospective Jurors J.W. and D.S. for cause because of their views on the death penalty.
a. Standard of Review
On appeal, we review the trial court‘s “for cause” juror excusals deferentially. If the juror‘s voir dire responses conflict or are equivocal, we accept the trial court‘s findings if supported by substantial evidence. (E.g., People v. Duenas (2012) 55 Cal.4th 1, 10 (Duenas).)
Initially, Caro disputes this standard of review, asserting the trial court deserves no deference here because it misunderstood the applicable law. (Cf. People v. Cunningham (2015) 61 Cal.4th 609, 664 [de novo review appropriate where trial court applied incorrect standard in determining whether racial discrimination motivated prosecutor‘s peremptory strike].) At times, the trial court described the inquiry as concerning whether a juror could be “neutral” as between life imprisonment without parole or death. We agree with Caro that on their own, such statements could misleadingly suggest a juror cannot serve if he tends to disfavor the death penalty. Instead, “[t]he critical issue is whether a life-leaning prospective juror — that is, one generally (but not invariably) favoring life in prison instead of the death penalty as an appropriate punishment — can set aside his or her personal views about capital punishment and follow the law as the trial judge instructs.” (People v. Thompson (2016) 1 Cal.5th 1043, 1065 (Thompson).)
Nonetheless, we find that in context, the trial court‘s statements about neutrality were consistent with the proper inquiry: whether the prospective juror could “faithfully and impartially” follow the law (Thompson, supra, 1 Cal.5th at p. 1066; accord, Lancaster, supra, 41 Cal.4th at p. 78), and ” ‘conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate’ ” (Thompson, at p. 1064). In discussing whether J.W. could be “neutral,” the trial court expressed doubt that J.W. could “reasonably consider both punishments” as instructed by the court. The court, too, considered D.S.‘s “ability to be neutral” to mean his ability to “give serious consideration to both potential punishments.” When the court explained the purpose of voir dire to prospective jurors on several occasions, it conveyed –– correctly –– that it could only
b. Prospective Juror J.W.
Prospective Juror J.W. stated in his questionnaire that he “strongly support[s]” the death penalty where “clearly warranted.” He believed the death penalty was sought “[t]oo seldom.” J.W. indicated that the death penalty should not automatically apply for the murder of children because it “depends on circumstances,” though he “tend[s] to favor” the death penalty in such cases. Nonetheless, J.W. wrote that he “can‘t help but have [a] gut reaction against [application of the death penalty to women] — unless clearly warranted.” J.W. wrote that his wife was “adamantly against” the death penalty. J.W. indicated that he would be able to listen to all the evidence and give honest consideration to both death and life, but also
wrote that “a conviction with death penalty could damage my marriage. My wife has deep convictions.”
During voir dire, J.W. stated that his views had changed since filling out the questionnaire. He stated that “it‘s very unlikely I would vote for the death penalty in this case, but it‘s not impossible” because of “[p]ersonal concerns and just convictions.” When defense counsel asked him to explain, J.W. stated, “I haven‘t changed my convictions regarding the death penalty per se. Knowing what I know about this case and just being honest, I think it would be difficult for me to apply it.” J.W. stated that he did not have preconceived notions about the case, could conceive of a case where he would impose the death penalty, and stated he could be fair and impartial to both sides. But he indicated that his wife‘s opposition to the death penalty “might” affect him. J.W. told his wife that he might sit as a juror on a capital case but did not give her any other details about the case. When asked if he could set aside his wife‘s beliefs, J.W. stated, “I think so, but it‘s — it‘s a very difficult decision, and when there are personal ramifications, it‘s hard to guarantee.” When pushed whether he could “forget about” his wife‘s opinions, he said, “Yes.”
The prosecution challenged J.W. for cause, and the trial court excused J.W. because of his statements that he was unlikely to impose death and his feelings about imposing death on women. Based on J.W.‘s responses, the trial court concluded J.W.‘s “mind-set” would “substantially impair[] his ability” to “reasonably consider both punishments as a reasonable possibility in this case.” The trial court also relied on the fact that J.W. violated the court‘s admonition not to talk about the case by telling his wife that he might sit as a juror in a capital case.
Substantial evidence in the record supports J.W.‘s excusal for cause. J.W. said he would worry about potential damage to his relationship with his wife when acting as a juror and said that it “[p]erhaps” would impair his ability to “impose death in a case that called for it.” We disagree with Caro that Wainwright v. Witt (1985) 469 U.S. 412 requires the juror‘s own views, not those of a third party such as his wife, to prevent or substantially impair his performance. This is an overly rigid reading of Witt. The inquiry is whether “the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” (Id. at p. 426.) On this record, J.W.‘s marital concerns justified such an impression.
In addition, J.W. had a “gut reaction” against imposing the death penalty against a woman, a belief he stated in his questionnaire and repeated, unprompted, when asked whether he personally could impose death on a
Given the substantial evidence supporting the trial court‘s determination, we defer to its conclusion that J.W.‘s statements amounted to substantial impairment.
c. Prospective Juror D.S.
Prospective Juror D.S. stated in his questionnaire that the death penalty “should be used only in the most extreme cases[.] I do not believe that killing the defendant is a solution for the first killing, so I would strongly object to the death penalty unless overwhelmingly convinced of intent free of mental impairments.” D.S. wrote that he supported life imprisonment without the possibility of parole “over the death penalty.” He indicated that he did not believe the death penalty serves any purpose. D.S. thought the death penalty was sought “[t]oo often” and “[r]andomly,” and that it is applied to “[t]oo many minorities and women, few white men.” When asked whether D.S.‘s feelings about the death penalty were so strong that he would always vote against the death penalty, he placed a question mark in the “No” checkbox and wrote, “But almost always.” D.S. similarly indicated he “would require sufficient evidence to convince me that the death penal[ty] will serve a purpose beyond retribution.” When asked if he could listen to all the evidence and instructions and give honest consideration to both death and life imprisonment without parole, he placed a question mark in the “No” checkbox and wrote that he “would begin from the position that life without parole is enough punishment and no more is needed.” However, D.S. saw no reason why he could not be a fair and impartial juror.
During the defense‘s voir dire, D.S. stated, “If I understand the proceeding correctly, I would have no objection to deciding guilt or innocence. But when we got to the next phase, I would have some very definite thoughts on it.” When defense counsel asked whether D.S.‘s thoughts would prevent him from keeping an open mind and considering all the evidence, D.S. replied, “I have some feelings that it seems to me might be in — in conflict with — I don‘t know with what . . . .” After another question, he continued, “The problem is
During the prosecution‘s voir dire, when asked whether D.S. could “ever impose death” in “this case,” D.S. responded, “I have yet to hear anything.” D.S. also noted there “[c]ertainly” existed a case where he would be able to impose death. D.S. indicated that his ability to vote for death in the case depended on the prosecution showing more than a “simple set of facts.” The prosecutor then asked D.S. whether life in prison would accomplish the goal of protecting society from a threat. D.S. replied, “Aren‘t you saying that — in other words, you can‘t prove that it — that it‘s a threat to society, that the only thing you can prove is an actual murder and you want me to forecast what I would judge on what you may or may not prove? I can‘t do that.” When pushed further on whether he could impose death on a person if life imprisonment without the possibility of parole would protect society, D.S. said, “Even — okay. That‘s a tough one. There would be — it would be very difficult. . . . Very difficult. I don‘t know exactly what the answer is. But I certainly will say it will be very difficult.” D.S. said he did not “have an answer,” whether there was any justification for the death penalty besides “protecting society.” He said he could impose death on another human. When asked if he could impose death on a defendant knowing the other option was life imprisonment without parole, D.S. said, “I can‘t answer that kind of question. That‘s too ethereal.” When pushed further on this topic, D.S. responded, “I cannot say that absolutely I would never do it” and that “[i]t‘s possible. But I certainly have expressed hesitation.”
The prosecutor challenged D.S. for cause. The trial court excused D.S. because of his hesitation to impose the death penalty and the limited society-protection rationale, which the court believed D.S. “unequivocally stated” would be “the only time” he would vote for death. Based on D.S.‘s questionnaire and voir dire answers, the court “was left with the definite impression that the prospective juror would be unable to faithfully and impartially apply the law.” The trial court specifically noted D.S. “hesitated” when faced with the possibility that life imprisonment without the possibility of parole would satisfy D.S.‘s society-protection rationale.
Caro argues that D.S.‘s responses show the picture of a thoughtful person who had not prejudged the evidence. But D.S.‘s thoughtfulness could be reasonably understood to indicate unsureness whether his beliefs would allow him to ever impose the death penalty in a particular case. (Duenas, supra, 55 Cal.4th at pp. 11-12 [“Many prospective jurors . . . ’ “simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’ ” ’ “].) As the trial court noted, that equivocation became especially pronounced when the prosecution pointed out that life imprisonment without the possibility of parole might eliminate any potential threat to society.3 (Cf. People v. Rountree (2013) 56 Cal.4th 823, 847
[upholding juror excusal where answers could “hardly have been more equivocal“]; cf. People v. McKinzie (2012) 54 Cal.4th 1302, 1342 (McKinzie) [upholding for cause excusal of jurors who would only impose the death penalty in narrow circumstances not at issue in the case].) In these circumstances, we defer to the trial court‘s determination that D.S. would have been substantially impaired in carrying out his duties in the penalty phase.
iv. Prosecution‘s Files on Prospective Jurors
Caro contends that the trial court should have required the prosecution to turn over its investigatory materials on prospective jurors. The trial court agreed with the prosecution that such materials were undiscoverable work product. In People v. Murtishaw (1981) 29 Cal.3d 733, we gave trial courts “discretionary authority to permit defense access to jury records and reports of investigations available to the prosecution.” (Id. at p. 767.) In June 1990, California voters approved Proposition 115, which added section 1054.6 to the Penal Code. It provides that “[n]either the defendant nor the prosecuting attorney is required to disclose any materials or information which are [privileged] work product . . . .” (
B. Issues at Trial
i. Clothing Seized from Emergency Room
Caro argues the trial court erred by allowing the introduction of the clothing that Caro was found wearing the night of the shootings. In the
Caro argues that the trial court should have excluded the clothing-related evidence because Miller did not have a warrant. Caro concedes, however, that defense counsel never brought a suppression motion related to this evidence or objected to its introduction on these grounds. This claim is thus forfeited. (See People v. Miranda (1987) 44 Cal.3d 57, 80.)
In the alternative, Caro argues that her counsel at trial was ineffective for failing to bring a suppression motion. To establish ineffective assistance of counsel, Caro must show that her counsel‘s performance was deficient and that she suffered prejudice from the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) On direct appeal, if the record ” ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ ” we must reject the claim ” ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Wilson (1992) 3 Cal.4th 926, 936.) Where a defendant claims ineffective assistance based on counsel‘s failure to litigate a Fourth Amendment claim, Strickland‘s performance prong requires her to show that it was objectively unreasonable — “that is, contrary to prevailing professional norms” — to forgo the motion. (Kimmelman v. Morrison (1986) 477 U.S. 365, 385 (Kimmelman); see also People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez) [the defendant bears the burden of showing counsel‘s performance ” ’ “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms” ’ “].) Examining the Fourth Amendment claim‘s merit has a role to play here. For example, “[c]ounsel is not ineffective for failing to make frivolous or futile motions.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) The prejudice prong of Strickland then requires the defendant to “prove that [the] Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” (Kimmelman, at p. 375; accord, People v. Coddington (2000) 23 Cal.4th 529, 652 (Coddington); People v. Wharton (1991) 53 Cal.3d 522, 576 (Wharton).)
Caro fails to establish that a motion to suppress the clothing would have been meritorious. Under the plain view doctrine, an officer may seize an item without a warrant if (1) the officer was lawfully in a place where the object could be viewed; (2) the officer had a lawful right of access to the seized item; and (3) the item‘s evidentiary value was immediately apparent. (See Horton v. California (1990) 496 U.S. 128, 136-137; Payton v. New York (1980) 445 U.S. 573, 586-587; Arizona v. Hicks (1987) 480 U.S. 321, 327; People v. Bradford (1997) 15 Cal.4th 1229, 1295; see also U.S. v. Cellitti (7th Cir. 2004) 387 F.3d 618, 623.) The doctrine does not amount to a full exception to the warrant requirement, but merely allows a warrantless seizure where an officer lawfully views, and can lawfully access, contraband or incriminating evidence. (Bradford, at p. 1295; Horton, at p. 137, fn. 7 [holding that even if incriminating evidence is in plain view in a suspect‘s home, an officer cannot enter the home and seize the contraband without a warrant, absent exigent circumstances].) In this situation, the incriminating nature of the clothing —— covered in bloodstains after the shooting —— was immediately apparent. Caro raises the possibility that because she had shot herself in the head, the stains could have been her own blood. Yet that possibility does not eliminate the strong likelihood that some of the stains would link her or some as-yet-unidentified assailant to her or her sons’ injuries.
Given the clothes’ evidentiary value, trial counsel would need to establish Officer Miller did not have lawful access to them in order to block their admission from trial. But the record is inconclusive on this point, as it fails to reveal where Miller was when he saw and seized the clothing from the board on which emergency personnel transported Caro. That ambiguity makes it quite difficult to assess the legality of Miller‘s actions viewing and seizing Caro‘s clothes. On this record, then, we cannot say the plain view doctrine was inapplicable, and Caro has not carried her burden to “establish that [her] Fourth Amendment claim ha[d] merit.” (Coddington, supra, 23 Cal.4th at p. 652.)
ii. Fifth Amendment Challenge to Caro‘s Hospital Room Statements
Caro argues that two statements she made to Detective Wade at the hospital should have been excluded from trial because (1) she did not receive
The two statements in dispute occurred at different times. At some point in the first hour and a half of questioning, before the codeine injection, Caro stated that she “might have fallen down the stairs,” but also indicated that she did not remember. About 45 minutes after the codeine injection, Detective Wade heard Caro say she was bruised by “wrestling with a boy.”
After the second statement, Detective Wade continued to ask Caro questions about what happened, but Caro indicated that she did not remember, and asked whether her boys and Xavier were there. Wade told Caro that her boys were hurt and asked if she knew how they were hurt. Caro asked if it was “something serious.” Wade told Caro that she was investigating the death of Caro‘s boys, and that Caro was suspected of hurting them. Wade then gave Caro Miranda warnings, and Caro invoked her right to counsel. In addition to Detectives Rivera and Wade, a psychologist hired by the district attorney, Susan Ashley, was present for much of the pre-Miranda-warning interview. After Caro said she might have fallen down the stairs, she noticed Dr. Ashley in the room, and asked who she was. Wade identified her as “Doctor Ashley” to Caro and may have mentioned she was a psychologist from the district attorney‘s office. Caro also noticed a man from the district attorney‘s office standing outside her door at one point, and Wade told her who he was. Caro asked why he was there and Wade told her he “was here because you got hurt. And we‘re trying to figure out what happened.” After
The evidence showed that Detective Wade failed to give Caro Miranda warnings before the two statements at issue. Nonetheless, it also showed that she did not threaten or make promises to Caro. The trial court also found that Wade did not interfere with Caro‘s medical treatment and did not do “anything to overcome the will of” Caro. The trial court ruled that Caro was not in custody for purposes of Miranda during the Wade interview, and that Wade did not coerce an involuntary statement from Caro. Caro now challenges both rulings.
Before they begin custodial interrogation of a suspect, the police have an obligation to deliver Miranda warnings. This familiar admonition warns the suspect of the right to remain silent, that any statement may be used as evidence against him or her, and that the suspect has a right to the presence of a retained or appointed attorney. (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1400 (Leonard).) The warning is meant to protect the suspect‘s privilege against self-incrimination, which is jeopardized by the inherently coercive nature of police custodial questioning. (Miranda, supra, 384 U.S. at pp. 478-479.)
The purpose of Miranda guides the meaning of the word “custody,” which refers to circumstances “that are thought generally to present a serious danger of coercion.” (Howes v. Fields (2012) 565 U.S. 499, 508-509.) Such a danger of coercion is usually present where there has been a ” ’ “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” (People v. Stansbury (1995) 9 Cal.4th 824, 830, quoting California v. Beheler (1983) 463 U.S. 1121, 1125; see also People v. Moore (2011) 51 Cal.4th 386, 394-395.) The key question is whether, under all of the objective circumstances, a reasonable person in the suspect‘s position would have felt free to terminate the interrogation. (Leonard, supra, 40 Cal.4th at p. 1400; Howes, at p. 509; Thompson v. Keohane (1995) 516 U.S. 99, 112.) But even if a person‘s freedom of movement has been curtailed, an “additional question” arises: “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” (Howes, at p. 509; see also id. at p. 510 [discussing Berkemer v. McCarty (1984) 468 U.S. 420].) All objective circumstances of the interrogation are relevant to this inquiry, including the site of the interrogation, the length and form of questioning, and whether the officers have
Statements taken in violation of Miranda are inadmissible in the government‘s case-in-chief. The prosecution may still use such statements for impeachment purposes. (E.g., People v. Pokovich (2006) 39 Cal.4th 1240, 1247; People v. Peevy (1998) 17 Cal.4th 1184, 1193.) What the government may not use against a defendant for any purpose are any of her involuntary statements. We consider statements involuntary — and thus subject to exclusion under the Fifth and Fourteenth Amendments of the federal Constitution —— if they are the product of “coercive police conduct.” (People v. Williams (2010) 49 Cal.4th 405, 437.) We evaluate this question by looking to the totality of the circumstances to determine “whether the defendant‘s ’ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion.” (Id. at p. 436.) The presence of police coercion is a necessary, but not always sufficient, element. (Ibid.) We also consider other factors, such as the location of the interrogation, the interrogation‘s continuity, as well as the defendant‘s maturity, education, physical condition, and mental health. (Ibid.)
When Detective Wade delayed giving Miranda warnings to Caro, she tread on perilous ground. True, Caro was not directly restrained by officers or informed she was under arrest. And she eventually received Miranda warnings — though only after two and a half hours of Wade‘s off-and-on questioning. Hospital staff moved freely in and out of her hospital room. Wade‘s urging one nurse to do “what [the nurse] would normally do” and the somewhat intermittent nature of Wade‘s presence and questioning as hospital personnel tended to Caro or Caro rested may well have indicated to a reasonable person that she could be left to herself, if desired. And yet certain exchanges between Wade and the staff, and between Wade and Caro herself, may have suggested to a reasonable person that the police exercised some authority over whether she could terminate the interview. Specifically, we note the constant presence of one or more law enforcement officers and the
Such circumstances heighten the risk of coercion. In Mincey v. Arizona (1978) 437 U.S. 385, the high court concluded a hospitalized suspect did not give voluntary statements after an officer engaged in “virtually continuous questioning” of a suspect who had requested to be left alone. (Id. at p. 401.) Because the officer persisted despite Mincey‘s being “weakened by pain and shock” and “barely conscious,” and the “clear” indications “Mincey wanted not to answer” his questions (id. at p. 401), the court concluded Mincey‘s “will was simply overborne” (id. at pp. 401-402).
The record of the trial court‘s decision indicates it made a contrary finding here — that Wade did not do “anything to overcome” Caro‘s will or interfere with her medical treatment. Unlike the defendant in Mincey, Caro gave no clear indications prior to the challenged statements that she wished to end her interaction with Wade. But unquestionably, Caro‘s situation here constrained her physical mobility: she was confined to her ICU bed with a broken foot and a drain in her head from brain surgery performed just hours before. She was fatigued and in significant pain. While a defendant‘s “compromised physical and psychological condition” alone will not render her statements involuntary (People v. Panah (2005) 35 Cal.4th 395, 471), that condition is relevant to the inquiry and presents an opportunity for abuse.
Whether the extent of Detective Wade‘s engagement was sufficient to violate Caro‘s constitutional rights is not a question we need to resolve. Even assuming the interview violated Miranda or the statements were involuntary, their admission was harmless beyond a reasonable doubt. The prosecution introduced the two statements to disprove the theory that Xavier inflicted the injuries. The prosecution also used these statements to argue that Caro remembered killing her children and was lying about her amnesia. But in retrospect, taking into account the full record of the proceedings, these statements did not have high value in the overall evidentiary calculus.
For completeness, the jury heard testimony on Caro‘s other statements to Detective Wade before and after indicating she could not remember what happened. This included Wade‘s testimony that earlier in their conversation, she asked Caro whether she had “take[n] a fall or something,” and Caro asked Wade what had happened. In addition, both statements had plausible alternative explanations consistent with the defense‘s theory and Caro‘s purported lack of memory. Caro‘s statement that she “might” have fallen down the stairs did not foreclose the possibility that Xavier caused her falling
Had these statements been omitted, moreover, it would have been unlikely to affect consideration of the case‘s compelling forensic evidence. Expert testimony about the bloody clothes Caro was found wearing provided a wealth of incriminating information. Five blood stains on her shorts matched Christopher‘s DNA profile — Joey and Caro potentially contributed minor amounts of DNA to one of these stains each. One of these stains was yellow and appeared to be brain matter. Three other stains on Caro‘s shorts matched Joey‘s DNA. Some of the stains on the shorts appeared to come from projected blood. A prosecution witness testified that gunshot mist likely produced one of the stains that matched Christopher‘s blood. While a defense expert testified that it was a stain more consistent with a beating, the defense expert acknowledged that the only evidence of violence against the children in the case involved gunshots. The shirt Caro was found wearing had 29 blood stains — two matched Joey‘s DNA, with Christopher and Michael as possible minor contributors, a control sample taken for one stain matched Christopher, and 19 stains matched Caro‘s DNA profile. Evidence gleaned from the house completed the evidentiary picture. Two bloody handprints matching Caro were on the door jamb in the bathroom between Joey‘s room and Michael and Christopher‘s room. Blood on the doorframe next to the hand prints tested positive for Joey‘s blood, with minor contributions from Christopher. Blood on the sink in the bathroom matched Joey‘s DNA, and one sample also had a potential minor contribution from Christopher.
Further circumstantial support came from expert testimony regarding Caro‘s own gunshot wound. Prosecution experts opined that the bullet damage found in the ceiling and in the wall above the bed was consistent with the gun being fired at an upward angle. The surgeon who operated on Caro testified that the bullet travelled upwards, and all of the bullet fragments were above the bullet hole in Caro‘s head.
In contrast, the evidentiary support for the defense‘s alternative theory, which identified Xavier as the shooter, was comparatively weak. It ultimately
with Xavier’s testimony that he had tried to give CPR to Michael and was carrying G.C., whose socks had become soaked in Michael’s blood. Moreover, tests found gunshot residue, but no blood, on swabs of Xavier’s hands — though Xavier testified he rinsed them at some point in the night. On the other hand, a swab of Caro’s right palm did show the presence of blood.
Finally, the evidence showed that Xavier did not have much time between when he arrived home and called 911. A vehicle similar to Xavier’s Mercedes entered the parking area at 9:24 p.m. and left at 10:36 p.m. The surveillance tape captured no other Mercedes leaving during the relevant timeframe — making defense counsel’s assertion that Xavier left earlier implausible. The evidence largely showed that it takes 40 to 46 minutes to drive from Xavier’s office to the family home — only one witness, Caro herself, testified to a shorter time (30 minutes). And the 911 call was at 11:21 p.m. Based on the prosecution’s evidence, Xavier would have only 5 minutes maximum between arriving home and calling 911. If the jury accepted Caro’s self-serving estimated driving time, he still would have no more than 15 minutes. A reasonable jury would not have believed Xavier shot his wife and children, hid all the blood evidence that might link him to the crime, and staged blood evidence corroborating his testimony within that window. Even if the jury accepted the possibility of this unlikely sequence of events, it stood at odds with the forensic evidence.
In considering the picture that emerges from this evidence, we are persuaded beyond a reasonable doubt that the jury would not have reached a different result in this case had the court excluded the challenged statements.
iii. Ineffective Assistance of Counsel for Failure To File a Fourth Amendment Pretrial Suppression Motion
Caro argues her counsel was constitutionally ineffective for failing to bring a pretrial suppression motion based on the
While she was unconscious, Caro was transported from the crime scene to the hospital. There, Caro’s clothes were cut off and left on the backboard used to transport her, where an officer recovered them. A surgeon removed bullet fragments from Caro’s head. Detective Rivera and forensic criminologist Debra Schambra were in scrubs and present during the surgery. Pictures taken by Rivera, Schambra, and other officers were admitted into evidence. After the surgery, a nurse gave the bullet fragments to Rivera, who later gave them to Schambra. Before the surgery, hospital staff placed bags over Caro’s hands and feet to preserve evidence, and in the recovery room, Schambra took fingernail scrapings and performed a gunshot residue test. Rivera testified to statements Caro made in the recovery room and her ICU room. Later, Detective Wade asked Caro a number of questions in her hospital room, and Dr. Ashley, a psychologist, listened to a portion of that questioning.
We have already addressed Caro’s ineffective assistance of counsel claim arising from the failure to move to suppress Caro’s bloody clothing. In this part, however, we address a different set of issues implicated by Caro’s arguments. The
Caro’s primary contention is that Detective Wade violated the
As we earlier concluded, the first two statements were harmless beyond a reasonable doubt. Any claim of ineffective assistance of counsel based on these statements necessarily fails for the same reason. (See, e.g., Wharton, supra, 53 Cal.3d at p. 576 [defendant must show prejudice to prevail on a claim of ineffective assistance of counsel].) We also conclude that excluding the third statement, concerning G.C., would not produce a reasonable probability of a different result in light of the compelling forensic evidence and implausibility of the defense’s alternative theory. Counsel’s failure to have these statements excluded on
Caro also asserts pictures taken of her in the operating room and in the recovery room violated her
Nonetheless, we need not consider whether or in what circumstances the government’s taking of surgical images may invade a defendant’s privacy. Caro fails to adequately explain why the exclusion of these pictures would have, with a reasonable probability, altered the outcome of the case. Caro’s bloodstained clothes, with the high-velocity spatter and the potential piece of scalp, also established Caro’s presence around her children when they were shot, and, in the testimony of the prosecution expert, that she pulled the trigger.
Caro similarly offers only cursory, unpersuasive arguments regarding any prejudice from the fingernail scraping and gunshot residue evidence police collected. To the extent those fingernail scrapings indeed showed the blood of Caro’s children, there was other evidence that Caro came in contact with her children’s blood.
Finally, Caro argues that the recovery of bullet fragments from her head during surgery was an illegal seizure. The
Caro argues that the evidence addressed here was cumulatively prejudicial. But for some she fails to show that the evidence should have been excluded, and she does not persuade us other allegedly excludable evidence was cumulatively prejudicial. Caro’s Strickland claim must fail. (See Kimmelman, supra, 477 U.S. at p. 375.)
iv. Denial of Request for Continuance
Caro argues the trial court abused its discretion and violated due process by failing to continue a hearing on a motion to strike evidence that Caro asked about G.C. At trial, on September 17, 2001, Detective Wade testified that Caro asked about where G.C. was located, but not the three children who had been killed. On the next day of trial, September 18, 2001, Caro moved to strike Wade’s testimony about G.C., asserting the statement violated Miranda and her
The next morning, on September 21, 2001, Priebe testified that she was a social worker at the hospital, and worked in the ICU on the day Detective Wade questioned Caro. Priebe heard screaming from Caro’s room (likely right after Wade told Caro that her children had died), but did not go in because a nurse, Debbie Anderson, had told her that “police had asked us not to comfort” Caro. The prosecution objected on hearsay grounds, and the trial court sustained the objection.
After Priebe’s testimony, defense counsel stated that she wanted to call Nurse Anderson as a witness, but indicated that she had been unable to contact her, and wanted to consult with an investigator. Anderson had testified in the case previously as a prosecution witness. But defense counsel stated she had been unable to contact Anderson because the only contact information defense counsel had was Anderson’s work phone number, and Anderson had not been to work the prior two days. The court denied the request because “[a]ll parties knew today was the day we were going to have the hearing“; defense counsel “had ample opportunity to have [her] witnesses present[;] . . . [a]nd the Court ha[d] been I believe extremely generous in allowing time for this hearing and for other hearings that have been occurring at the — the last minute.” Caro now argues the denial of a continuance was an abuse of the trial court’s discretion and a violation of due process.
The decision to continue a hearing so a party can secure the presence of a witness is one within the trial court’s discretion. (People v. Roybal (1998) 19 Cal.4th 481, 504.) A trial court does not abuse its discretion in denying a continuance unless the defendant establishes good cause for a continuance. (Ibid.) Good cause requires a defendant to show that he or she exercised due diligence in
We conclude the trial court did not abuse its discretion. As the trial court observed, counsel for both parties knew that the final part of the hearing would occur on September 21, 2001, a schedule somewhat determined by prosecution witness availability. Defense counsel did not raise the possibility of calling Anderson until the last minute. And Priebe’s testimony that Anderson said that police told Anderson hospital staff should not comfort Caro was clearly hearsay if offered for the truth of the fact that police made that statement to Anderson. So counsel could have predicted the need for Anderson’s testimony. Defense counsel asserted that she had no way of contacting Anderson because she had not been at work for two days, but defense counsel failed to explain what steps she had taken to contact Anderson, when those efforts were made, and whether Anderson could be found in a reasonable time. Defense counsel also failed to argue that Anderson was the sole witness who could establish a police policy against comforting Caro that night. So the trial court did not abuse its discretion by denying a continuance.
Moreover, the trial court denied the motion to strike because (1) the statement at issue was “spontaneous” rather than the result of an interrogation under Miranda, and (2) the court had no jurisdiction to hear the
Nothing in the record shows that officers sought to limit Caro’s medical care or access to an attorney, and at the time the statement was made, Detective Wade was actively trying to find Caro’s mother so that she could come comfort Caro. Caro’s further contention that the testimony may have justified reconsideration of the trial court’s prior Miranda and voluntariness findings is purely speculative. If Anderson’s testimony would have warranted such an action, counsel might have obtained a declaration from Anderson and
v. Exclusion of Evidence Assertedly Implicating Right to Present a Defense
a. Records from Xavier’s Therapist
Caro argues that the trial court erred by refusing to review and order the disclosure of records from Xavier’s visits to a therapist. Before trial, Caro subpoenaed records maintained by Xavier’s therapist. The therapist moved to quash the subpoena, relying on the psychotherapist-patient privilege and the right to privacy. The therapist also argued that Caro did not have the right to pretrial in camera review of the records under People v. Hammon (1997) 15 Cal.4th 1117 (Hammon). Xavier supported the therapist’s motion. Caro opposed the motion. After a hearing, the trial court found that the psychotherapist-patient privilege applied and that our decision in Hammon prevented pretrial disclosure of privileged information. The trial court also found that Caro failed to establish “good cause” because she had not shown a “reasonable likelihood that the documents in question contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from nonpriv[i]leged sources.”
Before us, Caro argues she has a federal and California constitutional right to an in camera hearing to examine Xavier’s psychotherapy records, based on her right to confront and cross-examine witnesses. Caro contends that our decision in Hammon, which rejected such an argument, was wrongly decided. In Hammon, we declined to provide a pretrial right to discovery under the confrontation clause, and instead found that any such right under the confrontation clause attaches at trial. (Hammon, supra, 15 Cal.4th at pp. 1127-1128.) Although the advent of digitized, voluminous records may conceivably raise new and challenging issues in this context, we decline to reconsider Hammon on these facts, which involve psychotherapy records from the relatively short period of time from August 4, 1999, to November 22, 1999. Moreover, Caro does not argue that the lack of pretrial discovery prejudiced her ability to request psychotherapy records at trial, or somehow altered her trial strategy. Nor does Caro argue on appeal that any requests for psychotherapy records were improperly denied at trial. In addition, Caro’s primary contention on appeal that the records might have shown that Xavier fired Caro to consummate his affair rather than to fix the office’s finances is speculative at best. We cannot conclude that the trial court’s ruling interfered with Caro’s right to confrontation in this case.
Caro argues that four admitted autopsy photos showing the victims’ wounds were so gruesome and inflammatory that their admission was unduly prejudicial under
Each of these photos served an evidentiary purpose by supporting the expert’s explanation of how the shootings occurred. Although the cause of death was not disputed at trial, these photos provided valuable context for understanding how the expert reached her conclusions about the nature of the shootings. (See Booker, supra, 51 Cal.4th at p. 170 [“photographs of murder victims are relevant to help prove how the charged crime occurred“].) Photographic evidence that Joey and Michael were killed by contact gunshot wounds and that Christopher was shot twice tended to demonstrate premeditation, deliberation, and the intent to kill. Moreover, we cannot conclude that these photos were unduly prejudicial. Although these photos constituted graphic images of gunshot wounds, even showing the insides of the victims’ heads in the case of exhibits 42B and 44B, we do not believe they were ” ‘so gruesome as to have impermissibly swayed the jury.’ ” (People v. Burney (2009) 47 Cal.4th 203, 243, italics added.) The pictures were limited to the result of the gunshot wounds themselves. They included no gratuitous details, unlike the pictures at issue in cases where courts have found an abuse of discretion. (See, e.g., People v. Marsh (1985) 175 Cal.App.3d 987, 996 [finding prejudicial photos of a child’s dangling bloody scalp with, in the background, the child’s blood-spattered torso “with the ribcages rolled back to expose the bowels“].) On balance, we conclude that the trial court did not abuse its discretion in finding that the prejudice arising from the photographs did not substantially outweigh their probative value.
c. Rulings on the Parties’ Objections
Caro argues that the trial court erred in sustaining multiple prosecution objections and overruling multiple defense objections at trial. We review evidentiary rulings, including ultimate rulings on whether evidence should be excluded as hearsay, for abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 131, 132.) When a hearsay exception requires foundational findings of fact, we review such findings for substantial evidence. (Id. at p. 132.)
First, Caro contends that the trial court erred by allowing Xavier to testify that Caro gave more money to her parents than was documented by the checks in evidence. A lay witness must have personal knowledge of the facts to which he or she testifies. (
Second, Caro argues that the trial court erred by not allowing defense counsel to cross-examine Xavier about the location where he had sex with Laura G., the woman with whom he was having an affair, after the shootings. After the trial began, Xavier told the prosecution that he had sex with Laura at the Marriott Hotel where Xavier stayed for two or three months. Laura told the police that she and Xavier had not had sex at the Marriott Hotel, but had continued their affair. At trial, Xavier denied having sex with Laura at a hotel — a statement inconsistent with his prior statement. The trial court excluded this evidence because it considered the continued affair — but not its precise location — relevant to the case. The trial court alternatively excluded the evidence because its probative value was substantially outweighed by “its undue influence, bias, and consumption of time”
Third, Caro argues that the trial court erred by allowing prosecution expert Edwin Jones to testify that the prosecution made Caro’s underwear available to the defense. In Coddington, supra, 23 Cal.4th at page 606, we held the work product privilege is violated where the prosecution asks questions that “invit[e] the jury to infer that . . . other [defense] experts were not called because their testimony would not be favorable.” Here, Jones was a prosecution forensic scientist who testified on defense cross-examination that he examined Caro’s underwear on July 10, 2001. Defense counsel asked if that was the first time Jones had examined the underwear, and he replied that he examined it “on a date earlier than that when other examiners were looking at [it],” those other examiners being “Richard Fox or Herb MacDonnell. One of those two or both.” On redirect, the prosecution asked, “[W]ho is Richard Fox?” and defense counsel objected to the question under Coddington. Though, defense counsel said she would not object to testimony that the prosecution made the underwear available to the defense. The trial court sustained the objection. The prosecution then asked Jones if he “provide[d] access to that particular item to defense experts?” He replied, “Yes,” and defense counsel did not object. Defense counsel waived a claim challenging this question by saying she would not object to testimony that the prosecution made the underwear available to the defense. To the extent the question that was asked exceeded the scope of the waiver, Caro forfeited any claim by failing to object. (People v. Seumanu (2015) 61 Cal.4th 1293, 1365.) Moreover, the testimony was admissible. (See People v. Scott (2011) 52 Cal.4th 452, 489.) The trial court did not abuse its discretion.
Fourth, Caro contends the trial court abused its discretion by not allowing a police officer to testify that Xavier told him that a psychotherapist advised
The trial court held that the police officer could not testify to Xavier’s statement to police that a psychotherapist had advised Xavier on prescribing Prozac to Caro. According to the trial court, this was not an inconsistent statement that fell within a hearsay exception. To the extent this testimony was proposed for purposes of showing Xavier’s attempt to seem more credible to police, the trial court held that, on the record before the court, Caro had not established a statement that implied such an attempt. Indeed, defense counsel indicated that they had not yet “gotten to” that part of the transcript of the police interview.
We conclude any error was harmless. If the evidence was admitted for its truth, it would not have harmed — and may have bolstered — Xavier’s credibility, as evidence that he received advice about Caro’s Prozac. Moreover, the purported inconsistency in the statement would have been unlikely to alter the jury’s evaluation of Xavier’s credibility because defense counsel’s question about what Xavier told police was general, and he added the caveat that he was responding to the “best of [his] recollection.” This evidence also would not have provided much support to the defense theory that Xavier sought to manipulate the police. Xavier simultaneously told police that he was the one who actually prescribed the Prozac; the advice of a family therapist not allowed to prescribe Prozac herself would not have added much legitimacy to his decision. Therefore, there is no reasonable probability this evidence would have changed the trial’s outcome.
Fifth, Caro argues that the trial court erred by excluding the defense’s proposed question to Caro, during direct examination, about whether Xavier told her he had kept his appointment with a divorce lawyer. On defense objection, the trial court held that the question called for hearsay and the answer would not be relevant to Caro’s proposed inconsistent statement hearsay exception theory. Some questions later, Caro testified to believing Xavier had not kept the appointment with the divorce lawyer based on
Sixth, Caro argues that the trial court erred by allowing Detective Wade to testify to what Juanita said about Caro’s statements. In the hospital, Juanita asked Caro, “Why did you do this?” and then said a prayer over Caro. During the prayer, Caro said “My babies. My babies. I’m sorry. I’m sorry.” The prosecution sought to introduce evidence of Juanita’s later statement to Wade that recounted Caro saying that she was “sorry for what happened to my babies.” Defense counsel objected that the testimony constituted Juanita’s speculation about why Caro was sorry. The trial court disagreed and found that Juanita was not speculating, but rather was attributing the statement to Caro. In context, the trial court reasonably interpreted Juanita’s statement as reporting what she thought Caro had said in response to her question asking why Caro did it. To the extent another interpretation was possible, we cannot conclude that the trial court abused its discretion by resolving this factual dispute in a reasonable manner. (See People v. Thornton (2007) 41 Cal.4th 391, 429 [“The court’s ruling did not fall outside the bounds of reason“].)
Seventh, Caro argues that the trial court should have allowed her to introduce transcript excerpts containing statements Xavier made to Juanita after the shootings. In a conversation recorded by Deputy Anthony Tutino, Xavier told Juanita the following: “[Caro] shot them in the head. She wasn’t messing around.” Defense counsel argued that this statement was relevant inconsistent statement evidence because Xavier had never specifically testified about observing where Joey was shot in his direct testimony. Defense counsel also contended that this statement showed that Xavier had greater knowledge about how the children died than he should have had based on his direct testimony. The trial court ultimately denied the motion as to these transcript excerpts. Even if the trial court erred by excluding this evidence, any such error was harmless. Deputy Tutino had earlier testified to this same statement during the prosecution’s case, and defense counsel ultimately referenced it during jury argument. Admitting a transcript of Xavier’s exact words in addition to Tutino’s testimony would have been largely cumulative and unlikely to affect the outcome of the case.
d. Exclusion of Written Statement in Police Report
Caro argues the trial court erred by excluding a statement in a police report. Deputy Tutino wrote — in a paragraph concerning statements Xavier made to Juanita in the garage the day after the shootings — that “[Caro] told
Caro contends that the purpose for admitting the statements only implicated the third level of hearsay — the police report itself. Caro argues that the first two levels of hearsay could be avoided because the statement would not have been admitted for the truth of Caro committing the murders, or for the truth of Caro telling Xavier she committed the murders. Instead, Caro argues that Xavier’s statement would have shown Xavier’s attempt to place blame on Caro and impeach his credibility. Regarding the police report, Caro argues that it fell within
The Attorney General does not defend the trial court’s exclusion of the statement, but rather argues that any error was harmless. We agree any error was harmless for the limited purposes for which the statement would have been admitted. The statement’s purpose was to impeach Xavier’s testimony about what he said in the garage and to show that he was trying to lay blame on Caro. This statement that Tutino wrote down, but did not remember, and which was not on the tape recording of the conversation in the garage, had low evidentiary value. Juanita also never testified that Xavier made such a statement to her, and Xavier did not remember making the statement. The jury would be unlikely to find Xavier measurably less credible had this statement been admitted. Moreover, the theory that this statement showed Xavier’s attempt to lay blame on Caro does not hold up under scrutiny. It is unclear why Xavier would tell Juanita — but not the police — that Caro admitted to the crime if he shot his family and was trying to blame Caro. So for the limited purposes for which the statement would have been admitted, we conclude that any error was harmless.
e. Cumulative Error and Right To Present a Defense
Caro argues the trial court’s evidentiary errors are prejudicial when considered cumulatively, and also violated her
constitutional right to present a defense. To the extent we assumed error, but found harmlessness with respect to Caro‘s evidentiary arguments, we do not find that those errors are cumulatively prejudicial. Those assumed errors involved evidence that was so minor that it was unlikely to have affected the case, even in the cumulative,
vi. Admission of Computer Animation
Caro argues that the trial court abused its discretion by allowing the prosecution to show the jury a computer animation depicting the opinion of Rod Englert, a blood spatter expert, on how the shootings of Christopher and Michael occurred. We review a trial court‘s decision to admit demonstrative evidence for abuse of discretion. (Duenas, supra, 55 Cal.4th at p. 21.) Before trial, the prosecution moved to introduce the computer animation, and the defense opposed. The prosecution argued the animation was admissible as a visual depiction of Englert‘s expert opinion on what happened. Regarding prejudice, the prosecution asserted the animation would not show highly emotional details of the crime, such as the victims’ facial expressions and Winnie the Pooh paraphernalia. At the trial court‘s request, the prosecution played and narrated the animation for the court. The trial court found the animation to be admissible demonstrative evidence to the extent it represented only the prosecution expert‘s proposed testimony. Because Englert could not confirm whether Christopher‘s eyes were open during the shootings, the trial court ordered the prosecution to show them closed in the animation. The trial court also required Englert to provide a declaration confirmingthat the final version of the animation depicted his understanding of the evidence. The prosecution shared a copy of the final version of the animation with the defense.
The computer animation was presented to the jury in eight scenes during expert testimony by Englert, who spoke after each scene. The animation featured three-dimensional, mannequin-like recreations designed with relevant details, such as clothing and hair. Englert testified that the animation illustrated his opinion of how the shootings had to occur to produce the bloodstain patterns on the clothing that Caro was found wearing the night of the shootings. The court also delivered a cautionary instruction about the animation to the jury multiple times over the course of trial.6
It is true that courts must be mindful of the powerful impact computer animations may have on jurors. The potential for such impact does not, however, create “an unjustified ‘air of technical and scientific certainty’ ” if accompanied by proper limiting instructions. (Duenas, supra, 55 Cal.4th at p. 23.) The trial court gave such limiting instructions here. They informed the jury that the animation merely illustrated the expert‘s opinion, it did not exactly recreate the events on the night of the shootings, and it was the jury‘s role to evaluate the expert‘sopinion and its factual basis. While Caro argues that these cautionary instructions were ambiguous as to the animation‘s purpose, the instructions were quite clear: They stated that the animation was an aid for understanding an expert‘s opinion.
Further, the content of the computer animation is not itself so graphic that prejudice arising from those details substantially outweighs the animation‘s probative value. The animation featured mannequin-like representations of Christopher and Michael, with some facial features, hair, and clothing. The animation showed each gunshot fired, and the pattern of blood distribution after the gunshots, which was necessary to depict Englert‘s testimony. It featured only one personal possession of the children, a doll on the side of the
Caro also argues the animation was prejudicial because it was cumulative of other evidence. But in Duenas, we rejected a similar argument because it “misapprehend[ed] the animation‘s role as demonstrative evidence. The animation was not offered as substantive evidence, but as a tool to aid the jury in understanding the substantive evidence.” (Duenas, supra, 55 Cal.4th at p. 25.) Here, the animation is similarly not cumulative, as it is demonstrative evidence illustrating expert testimony — such demonstrative evidence provides noncumulative value over the testimony itself by encapsulating what may otherwise be a confusing series of events. Becausewhatever prejudice arising from the computer animation did not substantially outweigh its probative value, we conclude the trial court did not abuse its discretion.
vii. Prosecutorial Misconduct
Caro argues that the prosecution committed misconduct by making certain statements in the closing arguments of the guilt and penalty phases of trial. Under California law, to establish reversible prosecutorial misconduct a defendant must show that the prosecutor used ” ‘deceptive or reprehensible methods’ ” and that it is reasonably probable that, without such misconduct, an outcome more favorable to the defendant would have resulted. (People v. Riggs (2008) 44 Cal.4th 248, 298 (Riggs).) A prosecutor‘s misconduct violates the federal Constitution if the behavior is ” ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” (People v. Redd (2010) 48 Cal.4th 691, 733 (Redd).) To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and request an admonition. (E.g., id. at p. 734; People v. Hill (1998) 17 Cal.4th 800, 820.) An exception exists where the objection and request for admonition would have been “futile or ineffective.” (Riggs, at p. 298.)
a. Guilt Phase Closing Argument
Caro contends that the prosecutor committed five instances of misconduct during closing arguments of the guilt phase. To establish misconduct, Caro must show ” ‘a reasonable likelihood the jury construed the remarks in an objectionable fashion.’ ” (Potts, supra, 6 Cal.5th at p. 1036.)