*1 Aug. S004791. Crim. No. 26425. [No. 1993.] PEOPLE, THE Plaintiff and Respondent, CLARK,
RICHARD DEAN Defendant and Appellant.
Counsel Paul G. Bower and Lee under Mary Wegner, appointments by Supreme Court, Jacobson, William R. Daniel S. Howard A. Chad S. Lindsay, Floyd, Hummel, Frederiksen, Zelkind, Karen N. Barbara G. Shauna Weeks and Gibson, Dunn & Crutcher for Defendant and Appellant. General, Williamson,
Daniel E. Lungren, Attorney George Chief Assistant General, General, Attorney John H. Ronald Sugiyama, Attorney Assistant S. Niver, General, Matthias and Ronald E. Plaintiff and Deputy Attorneys for Respondent.
Opinion PANELLI, J. convicted, Richard Dean Clark was following Defendant trial, Code, of the first jury murder and degree (Pen. of Rosie Grover. rape 261.)1 The allegations true the circumstance jury special found §§ 190.2, (§ the murder the course subd. during rape he committed the intent so (a)(17)(iii)), bodily that he inflicted with to do injury 1203.075, (§ (a)(1)), used a the commis deadly subd. that he weapon (§ fixed (b)). of the murder at death. jury penalty sion subd. verdict, penalty After for modification of the the court denying motion Const, VI, (Cal. entered art. judgment accordingly. This is automatic. appeal 11; 1239, (b).) subd. § § affirm
We its judgment entirety.
I. Guilt Phase Facts A. Prosecution’s Case-in-chief
1. Introduction 19, 1985, During early morning of July Rosie Grover was raped, screwdriver, with stabbed a sharpened repeatedly bludgeoned about face and neck with two pieces Although of concrete. the crime occurred Mendocino County, change of venue was on granted defendant’s motion *20 and trial was held in Santa Clara County. Defendant was convicted of murder. Victim,
2. The Rosie Grover Rosie Grover was a 15-year-old high school student at the time her 19, 1985, death. On July she took a bus that Greyhound left San Francisco around and midnight arrived Ukiah around 4 a.m. After unsuccessfully attempting to obtain a ride home from bus she depot, began to walk Her home. body was found the next in the morning rocky, bed of dry Doolan Creek.
3. Defendant, Richard Clark In early defendant met David (Smith), Smith a who paraplegic, hired later, defendant to care for him. a About month moved they to Ukiah. 19, 1985, On July 18 and and defendant Smith were with staying Smith’s Stevens, stepsister, Michelle at 778 South State Street.
Defendant and Smith bar, some spent part afternoon a local where each man drank three or four beers. Sometime that Smith day, traded statutory
1All further references are to the Penal Code unless otherwise indicated. a small amount of for cocaine. returned to Michelle methamphetamine They house, where men Stevens’s both the cocaine. Smith had ingested Although seen defendant in the did use defendant not use it methamphetamine past, Defendant, Smith, others, Smith’s on presence July 1985. and perhaps five smoked between two and marijuana cigarettes. an
During evening, argument arose between defendant and Matt Williams, Williams, Michelle Stevens’s boyfriend. defendant According violent, like he “looked was on kind something” “got boxing shadow left, around the house and throwing Around 10 punches.” p.m., announcing that “was going to beat rob them.” Dino somebody up (Stevens), Stevens Michelle’s left with defendant. stepbrother, Munchie’s, Stevens and defendant went to hall located on State pool minutes, Street. After playing pool for 30 to 40 tire men left and walked to the home of a friend Robyn Boyd, of Stevens. lived at 304 Robyn Cooper Lane, near the Stevens and defendant arrived at Greyhound depot. Boyd’s friends; house around was midnight. Boyd entertaining marijuana several have been may available. The men remained at for 10 to 30 Boyd’s minutes. Upon leaving Stevens and Boyd’s, appellant parted company. evidence,
Little (which other than defendant’s statements to will be police below), discussed was to establish presented defendant’s location and move- ments between the time he left house and the time he entered the Boyd’s Ron-Dee-Voo Restaurant on July 19.
4. Discovery Body About 6:15 a.m. on July defendant entered the Ron-Dee-Voo Restau- rant, which is located on South State Street near Doolan Creek. He was wearing mirrored sunglasses holding *21 wine cooler partially empty Mertle, waitress, bottle in his hand. Defendant told Karen a had found a a girl nearby ditch. The girl was hurt “real bad” and “maybe Mertle raped.” offered defendant coffee order “hold him to there until the arrived.” police Defendant handed the wine cooler bottle that he had been carrying to Mertle. She later gave the bottle to the police.
The witnesses at the present Ron-Dee-Voo that morning testified that defendant did not appear intoxicated. Several witnesses also testified that he did not appear suitably upset by his discovery.
5. Investigation The Officer McBride Wayne of the Ukiah Police arrived at the Department restaurant at 6:34 a.m. Officer McBride had an intermittent conversation with the defendant that this During lasted 40 minutes. approximately conversation, defendant how while taking he discovered the explained body a on He buy cigarettes “shortcut” convenience store State Street. volunteered that he checked the and body pulse may for have touched Although defendant was and luggage. wearing sunglasses and spoke rapidly McBride, excitedly when he first met Officer officer testified intoxicated, defendant did not to be did not be under the appear appear influence of did methamphetamines and not smell of alcohol. crime,
theAt scene of the Detectives Fred and Edward Gall Kelley collected of Rosie physical body evidence. Grover was clothed. partially buttoned, Her jeans were but a cloth belt was undone. Her and jacket blouse were her open, bra. Her exposing shoes and her tank pink lay nearby. top Her duffle and bag suitcase were 10 feet from the Two away body. bloody blocks, concrete the larger one 18.5 weighing pounds, near the lay body. victim had suffered severe to the injuries head and face. puncture Possible or stab wounds were evident on lower her right abdomen. portion scene,
During the search of the crime a bottle of wine cooler of the same brand and flavor as the one defendant had given to Mertle found in the victim’s duffle bag. scene,
After searching the crime Kelley Gall went to South State There, Street. they received permission from David Smith to search his car. Kelley discovered a pair jeans Levi’s 501 and a sleeveless vest-type jacket on the rear seat. Blood be appeared to splattered legs on of the jeans on wiped the lower part vest. Stevens and Smith identified the clothing as that worn by defendant the previous evening.
6. Statements to Police Defendant’s gave Defendant three custodial statements to the on police of his day arrest. The content of and circumstances surrounding these are statements more fully discussed later in the opinion. arrest,
Prior defendant spoke with Detectives and Gall. He Kelley waived his rights (Miranda Miranda (1966) 384 U.S. Arizona 436 [16 L.Ed.2d 86 S.Ct. 974]) A.L.R.3d basically repeated *22 story that he had told Officer McBride earlier in the morning.
Following arrest and booking, Detectives Kelley and Gall transported defendant the to hospital for a blood During test. the trip defendant con- claimed, fessed to killing however, Rosie Grover. He that the sexual inter- course with the encounter, victim was consensual. After the she said that she intention, Mm When he going
was for she tMs report rape. repeated decided he receive her quickly penalty killing that would a less severe for than her and to do so. raping proceeded station, return to the defendant
Upon police agreed provide tape- Kelley Attorney recorded statement. Detectives and Gall and District Deputy Al Kubanis were After a which defendant waived during present. colloquy Ms constitutional he a statement that differed somewhat from Ms rights, gave statement, In the that the prior during statement. defendant stated taped Valium, beers, mne previous evening ingested eight or several tablets of of and several one-eighth gram methamphetamine marijuana cigarettes. crime, When the time of time describing tMs reported periods when he “blacked out.” Physical
7. Evidence of the victim had and autopsy confirmed that she been stabbed raped, beaten. The Boyd was under the direction of Dr. autopsy performed the CMef Stephens, City County Medical Examiner and Coroner of the assault, of San With Francisco. to sexual Dr. that respect Stephens opined intercourse, the victim had suffered nonconsensual but could not vaginal had re- opine sodomy vagina occurred. Examination of victim’s vealed a laceration across the TMs posterior opemng. outer aspect is associated with injury nonconsensual intercourse. No trauma to the anal was observed. opening Sperm discovered on outside inside of A vagina. “rare” found in the sperm was anus. Blood contamination the mouth Mndered to locate there. attempts sperm
Ten stab were found wounds on were Two body. Eight superficial. back, deeper wounds were inflicted in the middle one of wMch penetrated and the other the heart. The lung wounds could have been inflicted a screwdriver found car. Smith’s These wounds preceded blunt trauma injuries to the victim’s head and neck.
WMle either stab wounds have deep could caused the independently death, victim’s the actual cause of death was blunt trauma to head and neck. Although Dr. was unable determine Stephens many how blows had struck, been areas of separate blunt trauma were visible. The vast trauma majority injuries these would have caused death. independently The damage was so extensive that the victim’s entire facial structure was collapsed flattened. two pieces of concrete found near the victim’s could body have inflicted the trauma skull.
There was no conclusive evidence of attempted strangulation, large part because blunt trauma injuries obscured any would nor- symptoms have been mally present.
A evidence. physical criminalist testified about tests on performed Analysis jeans enzymes of the blood on defendant’s Levi’s revealed splatters Defendant’s consistent with both the victim’s defendant’s blood. shoes A were with hair found one of the shoes splattered human blood. on defendant’s hair. consistent with victim’s hair inconsistent with Defendant “could be ruled the source the semen found in not out” as victim’s hair with panties. panties Pubic found was consistent sample provided by defendant.
The concrete blocks found near victim bore traces of blood consistent victim, with that of the as well as human head and hair. eyebrow A screwdriver sharpened was found David car a Smith’s approximately week after the murder. screwdriver was and bore traces hand-sharpened human blood. The quantity of blood was not type. sufficient screwdriver have made could marks jacket found victim’s puncture and blouse.
B. The Case Defense Grover,
Defendant did dispute not that he killed argued Rosie but did not intend to kill her. He asserted that his emotional difficulties and chronic drug usage culminated in a “rage night reaction” on the counsel, murder. As argued his “a by who person goes rage into a [reaction] is acting with intent.”
Defendant called numerous witnesses testify usage his regarding drug Cote, and depression. Both Kathryn case supervising manager employed Health, by Solano Mental County (Robert), Clark Robert defendant’s brother, testified that began to use at an early Cote drugs age. found defendant to be severely depressed and attributed drug usage fact. this that,
Friends testified in the months prior to his move to immediately Ukiah, alcohol, defendant regularly ingested marijuana and methamphet- amine. Robert stated that defendant ingested Defendant’s drugs daily. friends respectively testified that had each they observed defendant inject methamphetamine, on as five many as Many occasions. of these witnesses also testified to defendant’s nonviolent character.
In February defendant attempted suicide ingesting over 30 tablets of Valium. Following suicide attempt, Robert substance Buley, *24 treated defend- Agency,
abuse counselor with Shasta Mental Health County with “heavily methamphet- ant. testified that defendant was involved” Buley amine and that he was depressed paranoid.
A who a mental status evaluation County therapist, performed Mendocino crime, “defi- on defendant after the concluded that defendant was a shortly nite” suicide risk and should be observed. Based defendant’s state- upon him, in that defendant was ments to also noted his therapist report in the of from various detoxifying drugs. possibly process Baselt, regarding analysis Dr. Randall a forensic testified toxicologist, of a blood that was taken from the defendant after his arrest. sample shortly in October of revealed traces of the metabo- analysis, performed alcohol, (Valium), lites of but evidence of marijuana no diazepam (PCP). cocaine or A by test done a labora- phencyclidine previous separate revealed tory Dr. Baselt that the presence methamphetamine. opined absence of traces of with ingestion alcohol cocaine was not inconsistent Rather, of these substances. because of the rate of these decomposition in drugs, would not them to The amount of the expect appear sample. marijuana metabolite was consistent with the of one or two mari- smoking juana hours to the blood extraction. cigarettes during twenty-four prior The amount of the with the diazepam ingestion metabolite was consistent Valium, “a small very during dose no more than five or ten milligrams” the same 24-hour The level of in the at the period. blood methamphetamine or, words, time of the the middle sample therapeutic range, other murder, an amount consistent with that found a diet At the time of the pill. the amount of in the in the “high blood would have been methamphetamine therapeutic” or “low abuse” range. Roberts,
Dr. Ronald a clinical of tests psychologist, performed battery on defendant. Dr. Roberts concluded that defendant has no neurological impairment, memory or disorder. Defendant has a low impairment, organic average intelligence of 92. Defendant tested on the quotient high psycho- pathic deviancy scale. Dr. Roberts also that defendant suffered opined from that he masked deep-seated depression by drugs. Dr. Roberts using diag- nosed defendant as from Defend- suffering “antisocial disorder.” personality ant also exhibited elements of a borderline disorder. personality Smith,
Dr. David the medical director of the Free Haight Ashbury Medical Clinic, testified extensively about the effects of abuse. Dr. methamphetamine Smith described how chronic can a bio- methamphetamine usage produce occurs, chemical impairment brain. When this the extent of debilita- tion cannot be determined the level of in the found methamphetamine blood, since the effect of the dosages taken over time is cumulative. *25 as lesser form of essentially
Dr. Smith described a reaction” a “rage biochemically in which the user reacts amphetamine impaired psychosis A or a true a irrationally violently sensory person experiencing stimulus. Smith rage definitely reaction acts without Dr. could thought. opine he the murder. The rage defendant was a reaction when committed suffering witness conceded cross-examination that defendant’s behavior was during not the a the rage goal-oriented of reaction killed victim for the product if of him her purpose her from as preventing identifying rapist. Raffle,
Dr. a and of medicine at Uni- Stephen the psychiatrist professor California, Francisco, versity of San several provided opinions regarding psychiatric disorders suffered at by defendant the time of the murder. Most significantly, Dr. Raffle Dr. expanded upon testimony by opining Smith’s (i.e., defendant had suffered a and reaction disassociative state a rage short break from at the time of Dr. reality) the crimes. Raffle also diagnosed defendant as suffering at time of the murder from a borderline disorder, personality disorder with of an features antisocial and personality (2) an organic and personality syndrome intoxication caused by amphet- cross-examination, amine abuse. On Dr. Raffle diagnosis conceded that his of rage reaction disassociative state could be invalid if had lied himto about the extent of his the course of the memory lapses during murder. Dr. Raffle further conceded that in the inconsistencies versions of events that defendant related and to police mental health experts them, and, therefore, a provided basis for believing that defendant lied to that his of memory the killing was not impaired.
C. Rebuttal
The prosecutor’s rebuttal case addressed the primarily defense’s expert Dr. testimony. Frederick a Meyers, professor of Uni- pharmacology at the California, Francisco, of versity San testified that neither drug defendant’s nor his history observed behavior at the Ron-Dee-Voo supported rage reaction defense and that defendant was not under the probably influence of drugs Coleman, or alcohol at the time that he killed Rosie Lee Grover. Dr. took issue psychiatrist, with of the many propositions underlying diag- noses defense experts explained potential drawbacks of psychiat- ric expert testimony. Dr. Coleman disagreed with Dr. Raffle’s diagnoses that appellant experienced rage reaction or disassociative state the time of the murder.
II. Guilt Phase Issues A. Motion Suppress Clothing
Defendant contends that the search and seizure of his clothing, car, found in Smith’s violated his rights under the Fourth Amendment to the I, United States and article section 13 of the California Consti- Constitution car, first, Smith, did not have tution for two reasons: owner of second, failure clothing; to consent to the search of defendant’s authority to search his vitiates police request clothing defendant’s permission Smith’s consent. We conclude the search of the did not violate clothing defendant’s and that rights clothing any constitutional suppression evidence derived from it was not required.2 Court, venue in change Mendocino to the County Superior prior *26 case,
this held a on defendant’s motion to section 1538.5. hearing pursuant Gall, Ukiah Police Officers Fred Ed McBride Department Kelley, Wayne and Charles Durfee testified at the An and a hearing. audiotape cassette transcript of a statement the defendant were also admitted tape-recorded by into evidence. The facts to the search of Smith’s car as relating presented during hearing this are as follows: in
Based the coincidence of the victim’s a bottled upon finding luggage defendant, wine cooler of the same brand and flavor as the one carried the Detective asked another officer to that defendant return to the Kelley request station for Defendant with the police questioning. complied request. defendant, Prior to and Gall went to 778 South State questioning Kelley Street, There, absence, where defendant was in guest. a defendant’s they Michelle and questioned Stevens Smith. The officers learned that defendant 19, had returned in early the but had locked out of the morning July been car, house. Defendant told Stevens arid Smith in that had Smith’s slept which in parked front house. Michelle Stevens told the policemen that did she not the permit any beverages alcoholic on and she premises showed them that there were in no such her beverages refrigerator. Kelley then from Smith requested permission to search his car for that “anything might help out and Smith investigation” agreed. [him] [his] car, While the searching noticed a the Kelley pair jeans a vest on back seat. the Kelley removed clothes from the of the car the interior into sunlight and noticed what appeared to be blood below the knees of spatters jeans and blood on the vest.3 Detective swipes Kelley showed the Smith, to Stevens and clothing who told him that defendant was wearing clothes when he left the house on the night of murder. seized the Kelley clothes returned to the to interview police department defendant. reason, 2For this we need not address upon defendant’s claims that his arrest was based lawfully acquired probable cause and subsequent police that his custodial statements arrest, were inadmissible as the tainted illegal arguments fruit of the premised since these are upon illegality of the search and clothing. seizure of his 3Subsequent analysis chemical revealed that the stains on the vest were not human blood. had car to Smith that Smith Defendant concedes that the belonged Matlock United States (See authority Kelley to search car. permit 249-250, 242, (1974) 415 94 S.Ct. U.S. 170-171 L.Ed.2d 988] [Matlock]; People Boyer 276-277 [256 however, 610].)4 movement and Kelley’s Defendant argues, for examination of the clothes found the car constituted a search separate which Smith’s consent was disagree. not sufficient. We
The United States Court the basis Supreme explained has for third use valid consent search as ... on mutual party “rest[ing] or control most property by persons generally having joint access for so is purposes, that it reasonable to co-inhabitants recognize any of right has the in his own and that the permit right others inspection have assumed the risk that of their number might one common permit (Matlock, supra, 415 U.S. at area to be searched.” fn. 7 L.Ed.2d Thus, 249-250].)5 pp. left an area of common use control objects or be within the may of the consent a third scope given by for search of party *27 LaFave, (See the (2d 1987) 8.5(c), common area. 3 Search Seizure ed. § 299-304.) pp. car,
As the owner of the'searched Smith had a unquestionably in possessory interest it. gave Smith the the police consent search car for anything might in prove helpful the of the investigation By murder. car, his clothes leaving readily on the seat displayed of Smith’s defendant assumed the risk that Smith would consent to a search of the car its contents. Defendant retained in simply no the legitimate privacy interest as against clothes Smith or Smith’s The invitees. Fourth is Amendment not violated unless a legitimate expectation (E.g., Illinois infringed. of is privacy v. Andreas (1983) 463 U.S. 1003, 1010, 771 L.Ed.2d S.Ct. 103 [77 3319].)
We have reviewed the authorities cited in by defendant of his support contrary position and conclude that none require that we reach a different We result. specifically hold that the general nature of Smith’s consent explains why defendant’s is cause by advanced reliance upon Arizona Hicks case, 321 1149], 480 U.S. L.Ed.2d In S.Ct. bullet fired the through floor of the defendant’s apartment injured a man on the floor The below. police entered the defendant’s without a apartment prosecutor 4The conceded that standing challenge defendant has the search. we While are concession, not bound this we choose to accept it address the merits of defendant’s claims, standing because the issue not fully was aired in trial For only, court. this reason we apply law of party third to the consent facts this case. case, 5In this post-Proposition defendant’s state and federal claims are reviewed under the (E.g., same standard. In re Lance W. Cal.3d 873 [210 shooter, in warrant order to search for the for other victims and weapons. for search, During officer noticed two sets of stereo police expensive stolen, equipment. Suspecting equipment the officer read and re- numbers, corded the serial in moving some of the order to do so. equipment After checking serial numbers by phone, officer seized certain police indeed components that were stolen. The held that the Supreme Court of the moving stereo was an unlawful equipment search. court reasoned: action, intrusion, “But unrelated taking objectives to the the authorized contents, which to view concealed exposed portions of the or its apartment did a new invasion of produce respondent’s privacy unjustified by (Id. exigent circumstances that validated the L.Ed.2d at entry.” p. 354], added.) case, italics in By contrast were present police consent granted to search the car for “anything” to the helpful investigation of Rosie Grover’s murder. The search of the contents of the car was within Therefore, scope granted consent to the unlike police. the search of Hicks, the stereo the search of the equipment found Smith’s car clothing was not a separate unlawful search.
Anticipating ruling, our argues the alternative that the search was invalid because the police obtained Smith’s consent as a result of “misconduct,” consisting removing defendant from the scene to the prior search and then failing to request defendant’s to search his permission clothing. Defendant’s is argument consent of one unpersuasive. person *28 with common or superior authority over the area to be searched is all that is required; consent of other interested is parties unnecessary. (E.g., Mat lock, 171, 249-250, supra, 415 U.S. at pp. L.Ed.2d at pp. 253] consent, obtained [roommate’s after defendant arrested and removed from scene, sufficient]; v. Haskett 855-857 consent, obtained after 776] [wife’s husband ar rested and removed from the sufficient].) premises,
B.
Suppress
Motion to
Incriminating Statements
Defendant’s
Prior to trial and pursuant to Evidence Code section
defendant moved
to
certain
suppress
statements
he
that made to the
police.
challenged
statements, referred to
by
parties as the “Patrol Car Statement” and the
Statement,”
“Taped
amount to confessions to murder. Defendant contends
that use of the statements violated the Fifth and Fourteenth Amendments to
I,
the United
States Constitution and article
sections 7 and
in Miranda
rules set forth
well as the prophylactic
California Constitution as
Arizona,
Miranda) and its
(hereafter
progeny.6
supra,
The Santa Clara Superior documentary confessions. Both of defendant’s admissibility determine Ukiah Police included evidence was received. Witnesses and testimonial McBride, Durfee, Gall, Dr. and defense psychiatrist and Kelley Officers Baselt Dr. Randall testimony toxicologist Peter Mayland. stipulated defendant’s Statement Taped and the cassette and audiotape transcript were received in evidence. also con- generally
The evidence to the of the crime is relating investigation at hearing 1538.5 during sistent with evidence section presented trial; Rather, we told story it will not be set forth detail recount again. evidence at the of defendant’s first custodial hearing beginning point interrogation. re- defendant when they
Detectives and Gall first encountered Kelley Defendant turned to the station from their State Street. 778 South trip room, he had for the waiting moved from the where been fingerprinting detectives, to the office. sergeant’s room,
At the beginning sergeant’s Kelley of the conversation advised defendant of waived rights. rights his constitutional Defendant stated that would with the officers. and Gall were both speak Kelley room, in the only but asked Defendant Kelley questions. essentially repeated that he had told McBride the crime In story at scene. response Kelley’s defendant claimed that he had the wine cooler questioning, bought few earlier and had taken it from Michelle Stevens’s days refrigerator before he left his activities of the morning, buy cigarettes. Referring Munchie’s, he had previous evening, pool explained played *29 bar, a with in He local Stevens until a.m. and then had Smith’s car. slept also stated that he had changed day. clothes since the previous accused defendant he knew
Kelley told defendant that lying. Kelley Michelle that Stevens in her and that defendant had kept no alcohol house wearing been he in Defend- bloody clothing that had found Smith’s car. ant that he no he replied longer wished to with officers and that speak statements, challenges admissibility 6Defendant also as a prior these well as statement, Statement,” “Sergeant’s ground they referred to as the Room that were the on lawful, fruit of an unlawful arrest. we we previously Because concluded that the arrest was do ante, (See, argument not consider this further. at fn. wanted to talk a lawyer. ceased. Interrogation Kelley placed under arrest for murder. asked defendant if he had an Kelley attorney. Defendant that he did not. if he replied Kelley asked defendant wanted a call. Defendant he place phone did not. The responded interrogation began at 10:51 a.m. and ended at 11:10 a.m. forms,
Following and interrogation, Kelley Gall filled out booking removed appellant’s clothing, completed kit. rape sample
About noon Gall and Kelley to the local transported appellant hospital, station, located one-eighth about of a mile from to obtain a blood police car; sample. Gall was driving was seated the rear with the Kelley defendant, who was handcuffed. There was no conversation until appellant asked, this, “What can get someone for like Gall something thirty years?” responded, “Probably not unless were a mass murderer.” Gall you explained during hearing that I’ve years been a officer and police prior “[i]n that it’s been my experience watching court whether it is on TV processes, or, itself, serve, in actual process or I’ve courtroom never seen anybody know, you more than seven and a half I years. have never seen anybody serve thirty years or more.” testified Kelley knew that murder California could be death life punished by or without possibility parole, but did not correct Gall’s remark. He testified that was no particular “[t]here reason” he did why not do so. Gall,
Fifteen to twenty-five seconds this with defend- following exchange said, ant “I sighed audibly want this I’m I on the record. killed guilty. her. What do want you to know?” Kelley reminded defendant that he had an requested attorney asked whether he still wanted to consult with a lawyer before talking to them. The complete Miranda were not warnings advisement, repeated this time. Defendant replied negatively Kelley’s “I adding: just want to tell you the truth.” lot,
As drove into the they hospital parking asked defendant what Kelley narrative, had Defendant happened. gave a which inter- Kelley occasionally with rupted questions. Defendant stated that he had met Rosie Grover early in the on State morning Street. She “came him on” to and “flashed her titty.” bed, They left for the creek where had they consensual intercourse. Prior to intercourse, him gave she a wine cooler which she took her from cloth intercourse, bag. After had they she threatened to accuse defendant of rape. her, screwdriver, He then choked her in stabbed the back with a which he *30 bed, found the creek and bashed her head with a piece of concrete. He fled back to 778 South State Street changed and clothing bloodstained Smith’s car. He then decided to return to the creek bed and report “finding” was Defendant’s narrative himself. deflect from body suspicion the to calm, emotional with no inappropriate in a manner delivered deliberate or of intoxication. signs outbursts sample for blood hospital then defendant into the
The officers took time, suicidal defendant began express At that fingernail scrapings. for,” if he live he “nothing He had thoughts. told officers him told Kelley kill himself. Detective were the chance that he would given him in No other mention jail. for that mental health care would be available time. Based any made the defendant at of or of was help promise help suicidal possible at the Gall noted hospital, defendant’s comments upon returned to the station. they tendencies on defendant’s sheet when booking station, in the was taken return to the a statement tape-recorded Upon A1 Attorney District office of the chief of Gall police. Kelley, Deputy were Kubanis present.
The defendant for the second interrogation advising with began Kelley of this rights. During colloquy, time of his Miranda the course complete At remarked: to do for me?” repeatedly lawyer going “What’s discussion, he he end confusion and At the of points expressed self-pity. “Yeah, I’ll I stated: talk. don’t care.” told story during story told Statement is similar to Taped time, however, car. that he had patrol This defendant told police Valium,
ingested of tablets of couple one-eighth gram methamphet- amine and several as more beer than had marijuana cigarettes, as well revealed. He previously during also claimed to have “blacked out” murder and denied that he with a remembering stabbed Rosie Grover In screwdriver. that he was response hungry, defendant stated questioning, but otherwise right. began was all Statement at 12:41 feeling Taped p.m. and ended at 1:16 There with was no unrecorded conversation p.m. defendant. facts,
In addition to these evidence bearing trial court considered upon First, defendant’s state mind at the time of the statements. records jail under the prepared direction of Mendocino were admitted County jail into evidence. These records showed that the defendant under a suicide watch for a time after he was first and that mental health incarcerated officials had visited him observing defendant and had also recommended for possible symptoms drug withdrawal.
Second, the testimony of Dr. Baselt was received into evidence. stipulated This testimony was consistent with his trial described. testimony previously *31 that, Dr. Baselt also opined during although drugs this hearing defendant’s system might have affected defendant’s at the time judgment statements, he could not an give regarding degree of opinion any such impairment, drug because their reactions to people vary combinations. that,
Finally, Dr. testified at certain Mayland length based upon psycho- childhood, logical factors from defendant’s arising life-style poly-drug use, whether possessed “significant regarding doubts” defendant could understand and waive Dr. intelligently rights July Mayland on 1985. testified, however, also that the observations of defendant police officers at the time of the statements constituted the most reliable evidence on the issue before court. After certain examining self-serving inconsis- cross-examination, tencies between three defendant’s statements under Dr. Mayland further admitted if all the statements that to be appeared fabrications,7 were self-serving fabrications indeed defendant would have “moderate intellectual possessed with at the time functioning raggedy edges” statements. 2. The Patrol Car Statement
a. Rights Miranda Defendant offers several reasons his Patrol Car Statement should why be Miranda, deemed under inadmissible 436. We find merit 384 U.S. no in defendant’s claims.
Defendant first contends that Gall’s to his response inquiry regard ing possible for penalties like this” constituted “something interrogation violation of Edwards v. 451 U.S. 484-485 L.Ed.2d Arizona 378, 385-387, case, (hereafter Edwards). S.Ct. In that the Su 1880] Court preme announced the rule: Once a custodial following prophylactic suspect invokes his right to an he “is attorney, subject to further him, interrogation by the authorities until counsel has been made available to communication, unless the accused himself initiates further or exchanges, example, during 7For the Patrol Car Statement defendant stated that he stabbed Rosie response Grover in the back. In question by Kelley regarding stabbing during to a Statement, that, Statement, Taped during claimed the Patrol Car Kelley must have brought up subject of the stab wounds just in the back and that he must have assumed that time, however, he did it. Kelley At that body had not observed the back of the and had no independent knowledge body. strong the stab wounds in that area of the A inference therefore during arises that defendant Taped reasoning ability Statement had the fabricate and had fabricated at part least of the “black out” that defendant described in the Statement, Taped but did not mention at patrol all in the car.
985 that found {Ibid.) The trial court specifically with the police.” conversations court’s We review the trial did not interrogation. Gall’s statement constitute evidence or for substantial whether occurred finding regarding interrogation 564, 629, 2 (1992) Cal.Rptr.2d Cal.4th 678 [7 clear error. v. Clair 612, 705]; (1991) 649 People Mickey v. [286 84].) support is evidence to P.2d We conclude that there substantial 818 finding. the trial court’s in Ed Miranda and has a as used
Interrogation meaning specific but also to any Interrogation only express questioning, wards. “refers not know . . . that the should police police words or actions on part are to elicit an from the reasonably likely incriminating response suspect.” 297, 308, 100 (Rhode v. 446 301 L.Ed.2d Island Innis U.S. [64 omitted; accord, Clair, 1682], 679.) 2 Cal.4th at supra, p. S.Ct. fns. v. The whether recognized deciding partic Court has also Supreme “[i]n ular conduct is we must remember the behind police interrogation, purpose our in officials government decisions Miranda Edwards: preventing using from coercive nature of confinement to extract confessions (Arizona would not be an unrestrained v. Mauro given environment.” 458, 468-469, 1931].) 481 U.S. 529-530 L.Ed.2d 107 S.Ct. [95 Where government actions do not this is not implicate purpose, interrogation (Ibid.) present.
Clearly, not all conversation between an and a constitutes officer suspect interrogation. long to a as as police may speak suspect custody would not speech reasonably incriminating be construed as for an calling (See People Mickey, 54 response. supra, Cal.3d at pp. [no interrogation found when defendant’s police responded regarding question the burial of his victims and the defendant his subsequently composure lost Innis, statements]; and made incriminating cf. Rhode Island v. case, 319-321].)
U.S. at In pp. 300-303 L.Ed.2d at this pp. substantial evidence that there was no for supports conclusion reason Gall to have known that his casual estimate of would possible penalties produce an incriminating from this defendant. Defendant response phrased question abstract terms and the in the officer same terms. responded The response contained no that if suggestion defendant confessed would treatment, receive more favorable if or that he did not confess the penalties would be more harsh. Defendant in effect told that the officer it thought crime, be, was likely that the who committed person whoever that may time, would serve substantial albeit less than prison years, whether or not confessed.8 record does not establish that defendant was person influences, subject to “compelling or direct psychological ploys, question- Mauro, (Arizona ing.” supra, 481 U.S. at L.Ed.2d at p. Rather, the record demonstrates defendant’s desire to unburden himself the murder. confessing Defendant’s volunteered expression guilt was *33 was the result (Ibid.)9 not of impermissible police interrogation.
Next, defendant contends that his waiver of his Miranda rights Miranda, (See car was neither patrol knowing, intelligent voluntary. nor accord, supra, 706-707]; 444 384 U.S. at L.Ed.2d at p. Colorado v. pp. [16 564, 566, 954, 960-961, (1987) Spring 479 U.S. 572 L.Ed.2d 107 S.Ct. [93 851]; 412, 420-421, 410, (1986) Moran v. 421 Burbine 475 U.S. L.Ed.2d [89 Court, 1135].) 106 S.Ct. to the this has “two According Supreme inquiry Burbine, (Moran distinct dimensions.” v. 421 supra, 475 U.S. at p. [89 “First, 420-421].) L.Ed.2d at pp. right must relinquishment have been in the voluntary sense that it was the of a free and product intimidation, Second, coercion, deliberate rather choice than or deception. the waiver must have been made with a full awareness of both the nature of the right abandoned and the being of the decision to abandon consequences if it. of the Only ‘totality circumstances surrounding interrogation’ reveals both an uncoerced choice and the level requisite of comprehension a court may conclude that the Miranda have properly been waived. rights 707, (Ibid., quoting (1979) Fare v. Michael C. 442 [Citations.]” U.S. 725 [61 197, 212-213, L.Ed.2d 2560].)10 99 S.Ct.
Defendant
that his waiver
argues
was not
and
knowing
intelligent,
he
because was deceived by Gall’s statement as to
and
possible punishment
it was not
because
him
voluntary
Gall’s statement induced
to waive his
8Contrary
argument,
to defendant’s
Gall’s statement did not serve to “minimize the moral
offense,”
Miranda,
seriousness
prohibited by
of the
as
supra,
page
Although defendant contends that he did not under he never contends knowing intelligent, was not him he invoked to effectively stand the that were read to and which rights Rather, he con terminate his Room Statement. Sergeant’s he faced and for that tends that was misled regarding penalties was not rights whether he should waive his regarding reason assessment *34 knowing intelligent.11 waiver by
Defendant misunderstands
the nature of the
required
Miranda.
All
“all of the
that is
is that the defendant
required
comprehend
(Moran v.
Miranda.
information that the
are
to
police
required
convey” by
Burbine,
supra,
We rights conclude that defendant’s waiver of in the car was whatever patrol knowing intelligent, applicable standard of proof.12
Defendant
also contends
Car
was
that his Patrol
Statement
not
within the
Miranda.
voluntary
of
He
that his
meaning
argues
inexperience
right
11Defendant has no
penal consequences
charges
to be advised about the
that he
959,
475,
prior
interrogation.
(1992)
faces
to
(People v. Hill
Cal.Rptr.2d
3 Cal.4th
982 [13
984],
1993,
92-8798;
P.2d
cert. applied May
Supreme
839
for
Ct. Dock. No.
cf. Colorado v.
Spring, supra,
pp.
suspect may knowingly
U.S. at
575-577
L.Ed.2d at pp.
479
[93
966-968] [a
intelligently
rights
waive his Miranda
even if
is
told
about
not
of all of the crimes
Burbine,
interrogated];
which he will be
v.
p.
pp.
Moran
b. Due Process
Defendant also contends that his Car Patrol Statement invol within the untary of the due the federal and state meaning process clauses of and, thus, A Constitutions. statement if is inadmissible it is involuntary *35 obtained by threats or of whether promises leniency, or express implied. Benson, 778-782; (People supra, v. 52 People Thompson Cal.3d at v. pp. 134, 309, (1990) 857]; 50 Cal.3d People 166-170 785 P.2d v. Cal.Rptr. [266 815, 817, (1982) 93]; Hogan 31 Cal.3d 647 P.2d cf. Cal.Rptr. [183 Burbine, supra, 420-421].) Moran v. A 475 U.S. at L.Ed.2d at p. pp. [89 of coercive finding is a for a that a police activity prerequisite finding confession was under due involuntary clauses of the federal or process Benson, 778; state (People supra, Constitution. v. 52 Cal.3d at Colorado v. p. Connelly, supra, at 484-485].) 479 U.S. L.Ed.2d at p. pp. record,
After we reviewing do not find the coercion. Even requisite accurate, though Gall’s statement was not the circumstances it surrounding admissibility of incriminating defendant’s to beyond statements had be shown a reasonable Jimenez, (See People supra, doubt. 608). v. 21 Cal.3d coercive, attempts argue 13Defendant trip designed to that the car was a psychological ploy compel to his confession because stranger purpose he was a in town and not know the or did However, length estimated trip. of this rely purportedly defendant did not on the coercive trip nature of the car suppression hearing trial court. The record of the devoid any is questions testimony relating or purpose any whether defendant knew the had trip or trial, regarding other information the trip. party argument may When a does not raise an at appeal. v. Raley not do so on Cal.Rptr.2d 2 Cal.4th 830 P.2d 892 [8 712]; 754, 782, v. Benson fn. 5 event, trial, any argument In we find the to be without merit. Kelley At Detective testified that defendant purpose prior was informed of the of the trip leaving the station. (See People Thompson, demonstrate none of the indicia of coercion. 167; also, ante, 985-986, 988.) supra, 50 Cal.3d at see p. pp. statement, (see Peo- Gall’s whether considered or objectively subjectively Benson, 780), or ple leniency 52 Cal.3d at was not a promise an offered his inducement.14 Viewed Gall’s statement objectively, merely that the crime like the one for which who committed a opinion person defendant was under time in but prison, arrest would serve substantial than less There was no mention of the effect of probably years. cooper- threat, ation the time to be served. There was upon promise, psycholog- no ical in the trickery physical Nothing or violence used to a confession. prompt exchange between the officer and the defendant rise to the inference gives that an was Viewed Gall’s implied message being conveyed. subjectively, statement was not shown to be a an promise During or inducement. followed, Statement that defendant that no or threats Taped stated promises had him been made to that Dr. testified police. Although Mayland defendant was more than the a average suggestion susceptible person confession, he would get lighter return for a it is clear punishment defendant did not view containing between himself and Gall as exchange circumstances, In promise of all of the we conclude that leniency. light defendant’s Patrol Car Statement voluntary was a reasonable beyond doubt.15
3.
Taped
Statement
Defendant advances two reasons
Statement was inadmis-
why
Taped
First,
sible under Miranda.16
that he
counsel
argues
requested
statement,
prior
giving his
but that
ignored
and interro-
request
Edwards,
Second,
did
gation
not cease as required by
supra,
Defendant first that invoked argues defendant to points In argument, his of his being rights. support advised of “I’m comment do for me” and his attorney his “what can an phrase repeated confused, mean, do.” I I what the fuck to don’t know really a factual question, counsel is right Whether defendant invoked his to (E.g., evidence or clear error. for substantial which is reviewed this court People Hayes Cal.Rptr. v. 38 Cal.3d 784 [214 People v. question]; counsel is a factual right to 1259] [invocation Bestelmeyer Cal.App.3d 605] [invoca (9th Borg Robinson v. a factual but see right question]; tion of to counsel is 1990) defendant’s words constitute Cir. 918 F.2d 1390 [whether novo].) The record de determination reviewed legal for counsel is a request did invoke the defendant not finding the trial court’s supports implicit during his to counsel this right colloquy.17 true, “need be for counsel
It as defendant that a urges, request is (E.g., to call a halt to right questioning.” to invoke defendant’s unequivocal numerous 165.) Defendant cites Thompson, supra, 50 Cal.3d at p. right sufficient to invoke language cases which have found equivocal 165), Thompson, supra, In counsel. context however, even to an did not amount defendant’s statements this case counsel. right assertion of his equivocal he should defendant evaluated whether
It is clear from the record that the reasons that Statement. He spoke waive his rights give Taped him him evaluate his would to do so. He asked questions help prompt the defendant detailed avoiding giving while position. interrogators, advice, his The interro- information legal provided responsive questions. courteous, Although all times and restrained. gators were at polite, with morning his connection experience was aware from if he his rights questioning Room Statement that invoked Sergeant’s cease, fact, In his vocalized notwithstanding he did not do so. would three times rights prior the record reflects that waived soul-searching, *37 to the initiation of substantive questioning. can a lawyer the effect of “what
With to the comments to respect specific cassette, me,” the tone and including for a review of the and the transcript do review, not invoke his de novo we would reach the same result: defendant did 17Applying counsel, rather, giving Taped to Statement. right effectively right prior to but waived that voice, inflections were of defendant’s reveals that defendant’s “questions” in rhetorical nature and linked the reasoning to his repeated explanation (See behind the rights. People Thompson, supra, waiver of his v. 165.)
p. Defendant that he did not feel that a repeatedly explained lawyer could him he assist since was and had revealed this fact to guilty previously reasons, For these he without police. willing to talk assistance of counsel. confusion,
Similarly, defendant’s statement regarding his both context face, and on its cannot be construed as a The reasonably request for counsel. Statement Taped demonstrates that defendant understood that he had a right counsel; irrelevant, coercion, it is in the absence of that he had difficulty whether deciding to exercise his right. comments, tandem, Even that assuming these separately or could counsel, be construed as an ambiguous for request conduct of interrogators was and proper defendant’s waiver subsequent was valid.18
When the
under
person
an
interrogation
ambiguous
makes
statement
counsel,
that could be construed as a request for
the interrogators may clarify
of,
waive,
the suspect’s
and
comprehension
desire to invoke or
the Miranda
99, 102,
rights. (E.g., People
Carey (1986)
Cal.App.3d
813],
denied
cert.
We next turn to defendant’s waiver contention his of his rights was not knowing and intelligent. Defendant provides why two reasons his First, waiver was deficient. he argues that he had an insufficient understand ing Second, of the function of an attorney. argument renews his that his mental state rendered him incapable providing knowing intelligent waiver of his rights. trial court found that explicitly defendant did knowingly intelligently waive rights prior giving Taped Statement. After an review independent of the record Mickey, 649), 54 Cal.3d at we agree.
The Miranda warnings given defendant at the beginning Taped Statement were complete accurate. all Again, that is for required 18Defendant does not appear argue unambiguous his statements were an request for record, counsel. Based upon the we argument find that such an would have been futile. *38 he a valid waiver of these is that the defendant understand that could rights mute, he did could be say stand and that choose to request lawyer anything Burbine, (Moran supra, him 475 U.S. used to secure a conviction. against 421-422].) reveals that 422-423 L.Ed.2d at record pp. pp. [89 fact, In defendant defendant these the record reveals that rights. understood in order was with more information than the Constitution provided requires him in evaluating rights. to assist the wisdom of waiving contends, however, deficient he Defendant that his waiver was because did what a for him. There is no lawyer could do adequately comprehend constitutional that the defendant understand the of assist requirement types (Cf. U.S. ance that an can Patterson v. Illinois attorney provide. 261, 272-274, Sixth [addressing 293-294 L.Ed.2d 108 S.Ct. 2389] counsel].) which the Amendment Unadorned Miranda right warnings, received, defendant give necessary sufficed to all information him for to make a choice to waive or invoke his knowing intelligent ibid.; Burbine, 422-424 (Cf. supra, to counsel. Moran v. 475 U.S. at right pp. 421-423].) L.Ed.2d at pp. him Defendant was not with the for only provided necessary information to make an informed waive his but the record reveals rights, decision to he information. As we beyond reasonable doubt that this comprehended stated, to the relating have we have reviewed all of the evidence previously taken, defendant’s mental at the re state time Statement Taped viewed the of the statement and listened to the audiocas transcript carefully sette tape-recording effectively statement. Defendant understood and invoked his Miranda At the time of the rights Taped earlier day. Statement, he was the date when thinking rationally enough provide Detective excul could not remember it. addition to his Kelley partially crime, of his well favorable patory story during blackout as as other embellishments, mentally also lead us to conclude that defendant was not so impaired recognize as to be unable to make a valid waiver of his We rights. that the defendant felt a the situation degree hopelessness regarding which he found himself as well as from his unfortunate self-pity arising family life. At the initial he confusion points some colloquy, expressed Nevertheless, regarding what should do. we find a reasonable beyond doubt that defendant was and did understand his capable understanding Therefore, Miranda rights. we conclude that defendant’s waiver was know Breaux, 301.) ingly made. Cal.4th at intelligently Suppress Analysis C. Motion to Blood of Defendant’s Defendant contends that the Mendocino Court County Superior violated his under the Amendment the United States Con rights Fourth I, failing stitution and article section 13 of the California Constitution by *39 the results of tests on the of his blood that was suppress performed sample drawn after his arrest. We conclude that the results of the tests shortly blood were admitted. properly
We need not address the merits defendant’s of contentions relating to the existence or absence of cause to draw defendant’s probable drawn, blood at the time it was because we conclude that the of doctrine inevitable discovery would validate the lower court’s in event.19 ruling any
As the
General
Attorney
persuasively argues,
approximately
drawn,
minutes after defendant’s blood was
gave
Taped
in
Statement which he admitted that he had
several different
ingested
drugs
murder,
Valium,
night
on the
of the
including
marijuana,
methamphetamine,
and alcohol. The
Statement was
Taped
legally obtained. As
result of
defendant’s revelations
in
concerning his
on the
drug usage
night
question,
Furthermore,
the police
would have drawn
inevitably
defendant’s blood.
these
following
revelations there was probable cause to draw defendant’s
blood and exigent circumstances
an
re
creating
exception to
warrant
quirement were also
since
present
defendant’s
body
metabolizing
evidence and
could have
in
delay
resulted
of
destruction
the evidence
(See
sought.
Schmerber v.
(1966) 384 U.S.
770-771 [16
California
908, 919-920,
L.Ed.2d
1826].)
S.Ct.
We recognize that metabolization
in
of the substances
defendant’s blood-
stream would have
in
continued
the 30 minutes to an hour
the time
between
that defendant’s blood was actually extracted and the time it inevitably
would have
common,
been extracted following his
Statement. It
Taped
is
however, for experts to take into account the metabolization rate of a
substance and
from the
extrapolate
amount
substance
a blood sample
to arrive at an opinion regarding the amount
substance in the blood at
Indeed,
a critical
point
time.
expert testimony
this case was based
upon this
methodology.
expert
on the
testimony
metabolization rates of
the drugs detected in defendant’s blood sample
Gen-
supports
Attorney
eral’s argument that the blood
sample
would have
inevitably
been drawn
following
Taped Statement would have provided essentially the same
information revealed
by
blood sample that was actually drawn.
Court,
19In the
County
Mendocino
Superior
little time was
by
party
devoted
either
explaining the
why
reasons
grant
court should
deny
or
suppress
motion to
the results
of defendant’s blood tests. The doctrine of inevitable discovery
argued
was not
by either side.
Nevertheless, as we
previously
have
recognized,
eyes
close our
to the
applicability
“[t]o
clear
discovery
inevitable
doctrine
contrary
would run
principle
the settled
appellate
review that a correct decision of the trial court must be
appeal
affirmed on
even if it is based
on erroneous reasoning.
(Green
Superior
Court
[Citations.]”
Furthermore,
Government Code section 68081 is not
decision,
implicated by our
arguments
because the
found
in the brief filed
the Attorney
provide
General
a sufficient basis for
upon
our reliance
the inevitable discovery doctrine.
reasons,
court’s
was correct
ruling
these
we conclude that the trial
For
*40
(1984)
v.
(See,
Nix Williams
e.g.,
under the doctrine
inevitable discovery.
of
Court,
377,
2501];
v. Superior
104
Green
Defendant his under the Sixth and Fourteenth argues rights I, 15 section of the California ments of federal Constitution article of interest. by Specifically, Constitution were violated various conflicts Massini, his (1) created when Susan that: a conflict was complains defender, attorney county for and won the office of district first ran public him; the recusal the district (2) the time after of during she represented election, when the office a conflict created following attorney’s Attorney consult with the attorney court a district to permitted deputy case; office, (3) for had this prosecutor General’s which substituted as wit- existed of certain representation prosecution conflicts due to previous Defender; to (4) the court failed Public by County nesses Mendocino these For reasons valid from defendant conflicts. any obtain waivers below, reversal. we find no conflict explained requiring Principles 1. General ‘a assistance counsel is
“Included effective right interest.’ right correlative that is free from conflicts of representation 298, 808, (1989) (People v. Bonin 834 Cal.Rptr. [254 [Citations.]” accord, 86, 460]; 2 135 (1992) 765 P.2d v. Cal.4th Hardy [5 796, 781].) We that such recognized have Cal.Rptr.2d repeatedly to, or efforts attorney’s loyalty conflicts “embrace all situations which an of, behalf a threatened to another by responsibilities on client are his [or her] a third interests. client or or his own person [or her] [Citation.]” Bonin, accord, 835; 2 supra, v. People Hardy, v. Cal.3d at p. 47 135.) Cal.4th at p.
The standard
relief
the Sixth Amendment based
obtaining
upon
for
under
a conflict of interest
whether the defendant
depends upon
objected
conflict at trial. Where a trial court
the continuation of conflicted
requires
(Holloway
a
reversal is automatic.
timely objection,
over
representation
426, 436-437,
S.Ct.
Arkansas
435 U.S.
488
L.Ed.2d
98
hand,
trial
On the
‘“a defendant who raised no
objection
other
must demonstrate that an actual conflict of interest
affected
adversely
[(1980)
[Cuyler
The Court in
Sullivan
lawyer’s performance.’
v.]
[Citations.]
333, 346-347,
(64
1708)]
446 U.S.
100 S.Ct.
made clear
L.Ed.2d
a
represented
such
defendant must
that his counsel actively
‘show[]
interests,’ is
conflicting
possibility
impugn
‘the
of conflict
insufficient
Cal.3d
(People Easley
criminal conviction.’
[Citation.]”
490],
P.2d
original.)
italics
Constitution,
our
“Under
state
more
applied
have
somewhat
‘[w]e
*41
86,
(People
(1983)
standard of
v.
35
104
rigorous
review.’
Cal.3d
Mroczko
52,
835].)
an
“even a
Cal.Rptr.
objection,
672 P.2d
of
Regardless
[197
potential conflict
if
record
informed
may
reversal
“an
require
supports
speculation” that appellant’s right
representation
prejudi
to effective
was
105.)”
affected. Proof of
“actual
not
at
cially
(Id., p.
an
conflict” is
required.’
692,
618,
(1991)
Cox
v.
809 P.2d
654
Cal.Rptr.
[280
725,
As we
explained
People Easley,
46
Cal.3d at
is
page
“[i]t
important
recognize that ‘adverse
under
effect on counsel’s performance’
Sullivan,
[Cuyler
supra,
Under our “somewhat rigorous” more state showing alleged conflict affected prejudicially counsel’s of defend representation (See ant is required. also People (1986) Rodriguez Cal.3d Cal.Rptr. [232 to believe that grounds prejudice 202] [“some discernible”]; occurred must be v. Castillo 233 Cal.App.3d Cal.Rptr. [any “informed from speculation” prejudice 382] conflict dispelled by record]; examination of the trial People v. Marshall 196 Cal.App.3d 1257-1258 319] [“existence even a conflict interest potential must accompanied be evidence by some of ineffective representation before reversal is required”].) mind,
With these principles we turn to defendant’s specific claims. Resulting Campaign, Election Alleged 2. From Conflicts Recusal Background
a. Defender, (Massini), per- Susan Massini Mendocino Public County At of this case. inception the defendant from the sonally represented (Allen), Allen defense experienced capital an request, Joseph Massini’s Both to section 987.2. lawyer, attorney assistant appointed pursuant Massini Allen active roles in the defense. played record, run for Mendo-
At a in the Massini decided to time not disclosed does indicate whether cino District record County Attorney. with the defendant. Massini’s was discussed campaign office elected in June She took on Massini was district 1986. attorney *42 5, January 1987. election, 25, 1986, a Allen moved to recuse
On June few weeks after the 21, case. On office from defendant’s attorney’s prosecuting July district as motion. The General was substituted granted Attorney court prosecutor. trial, dire
To in voir on place jury began these events the context of the on March 1987. October 1986. Presentation of evidence began The Campaign b.
Defendant in the trial to register objection did not court any assertions, Therefore, to defendant’s representation. contrary Massini’s Arkansas, supra, rule in 435 U.S. Holloway automatic reversal enunciated v. (People Easley, supra, 46 (Holloway), is to this case. inapplicable 724; Cuyler Cal.3d at v. Sullivan 446 U.S. L.Ed.2d pp. 333, 346-347, 100 S.Ct.
Further, during defendant’s of conflict with Massini assertions an actual record, her On we do find that Massini’s unpersuasive. are this not campaign in threatened her interest for district personal winning attorney election a defendant. It the law a defender creates conflict loyalty public to is not by attorney’s of with the district office merely seeking employment interest even continuing or to assume while represent that office by campaigning Marshall, criminal defendants. Cal.App.3d attorney with does not counsel’s of district acceptance employment [defense interest].) conflict between an Any of actual conflict of require finding in his or her client’s obtaining interest attorney’s personal employment a in is too attenuated loyal impute interest and effective representation of such violation ethics each case. professional Moreover, alleged the record that Massini’s does conclusion support conflict Defend of interest affected defendant’s adversely representation.20 ant Allen did during campaign.21 was also Allen represented by Massini’s not suffer from not an any alleged employee conflict of interest was Allen Massini. was an death and criminal defense experienced penalty He attorney. for defendant the motions appeared during suppress his name on the appeared pretrial along numerous motions with Massini’s name. Allen’s the defense our participation supports conclusion that the was neither constitutionally inadequate defense nor tainted conflict.22 in a by alleged Allen was unique position observe whether representation Massini’s of defendant was af adversely fected her as result regarding Allen’s silence deficiencies campaign. any in his cocounsel’s their representation of mutual client reinforces our con clusion, record, which is based on our review of the that Massini’s represen tation of defendant adversely was not affected her by personal interest winning election.
Nevertheless, urges defendant two of instances where Massini’s examples First, representation impaired conflict interest.
points out that his motion to *43 did not suppress specifically argue that Detec- tive Kelley’s search of the in clothing found Smith’s car constituted an however, impermissible independent search. This merit. argument, lacks ante, (See, merit, at 979-980.) pp. This lack of rather than the conflict of 20During her campaign, apparent it was that if won Massini the election a conflict would potential case, result. This conflict does not affect the outcome of this since it did not prejudicially affect representation by received defendant. 21Defendant out points that Massini handled the preliminary hearing prior to Allen’s appointment. We reviewed the transcript preliminary hearing and are satisfied Ms. “pull any Massini did not punches” representation in her during of defendant hearing. (See People supra, v. Easley, 725.) 46 Cal.3d at p. reject 22We also unsupported defendant’s required assertion that reversal is because he was 987, entitled to two unconflicted (d). counsel under section appointment subdivision aof second capital counsel in a case is not an right protected by absolute either the state or the (People 264, v. Jackson (1980) 603, federal Constitution. 28 Cal.3d Cal.Rptr. 286-288 [168 149]; Superior 424, 489, 618 Keenan Court (1982) P.2d v. 31 Cal.3d Cal.Rptr. 428-430 [180 Thus, 108].) error, 640 P.2d any, failing if to ensure that was represented by defendant two counsel must be judged under the People v. Watson standard enunciated in unconflicted 818, (1956) i.e., 243], 836 P.2d “reasonably whether it is probable” [299 a result more favorable to the defendant would have been reached had the error not occurred. Defendant does not contend that this standard has been met and we expressly find that it has not been met. 998
interest, argument is the reason this was not likely why specific pursued. Another reason to this failure could be that v. explain purported Arizona Hicks, motion 480 U.S. was not decided until defendant’s after Massini, Allen, heard. wielded the on this Finally, laboring was oar Defendant that Allen’s wisely contending representa- motion. refrains from tion was affected Massini’s conflict of interest. adversely alleged
Second, defense counsel’s failure to challenges explicitly argue that the necessary cause and circumstances were not probable exigent present justify taking of defendant’s blood without search warrant. While the record does not indicate that defense counsel raised this particular defense did argument, counsel that the blood should be argue sample on Fourth suppressed Amendment grounds.
Defendant contends that his counsel’s failure to raise the specific argu- ment that he has raised on must be attributed to Massini’s desire not appeal anger with whom she be We police might closely working. soon cannot ascertain from this record the was not why argument reasons however, pursued. To this decision impute campaign, to Massini’s would be sheer engage speculation. For we would have to assume that example, Allen, Massini, as well as under laboring divided and harbored loyalties some reason not to Such anger an does not make police. assumption sense, Allen since no even longer regularly Northern California practiced “ record, the time in during question. On this we do not find that ‘it is demonstrated . . . that the nature defense afforded deprived ” defendant of a right.’ (1983) constitutional v. Cal.3d Mroczko 835], Cal.Rptr. People quoting Keesee Cal.App.2d
We also reject defendant’s related contention that the conflict alleged warrants a se reversal of his per conviction and sentence based upon rule public policy announced Rhodes Cal.3d 180 [115 *44 235, Rhodes, (hereafter Cal.Rptr. Rhodes). P.2d In this court 363] reversed the conviction of a defendant represented who was aby part-time who city attorney, simultaneously discharged in prosecutorial responsibilities the in county which the In defendant was tried. so this court an doing, nounced a declared rule judicially of criminal that procedure city attorneys, who exercise prosecutorial responsibilities, may not criminal defendants. represent (I 186, Rhodes, however, 187.) Since pp. we have recognized d. in cases where the conflict between prosecutorial and criminal defense direct, is responsibilities less reversal is in the absence required 371, to the prejudice representation. (People (1979) v. Pendleton 25 Cal.3d 649].) Cal.Rptr. 599 P.2d The serial nature [158 of Massini’s removes case from criminal defense and this prosecutorial responsibilities Marshall, (Cf. supra, Cal.App.3d the ambit of the Rhodes rule. 1257-1259.) at pp.
c. Wood Error
Defendant further contends that the trial court erred
to
failing
inquire
alleged
knowing
about Massini’s
conflict of interest and
to obtain a
failing
and
Defendant contends
intelligent waiver from the defendant of
same.
(1981)
that these
under
v. Georgia
failures constitute reversible error
Wood
1097],
As have a trial court knows or recognized, “[w]hen should know that defense counsel has a conflict of with his possible interest client, it must into the and matter act inquire response [or her] [citations] to what its (People discovers v. Jones inquiry [citation].” Failure court by trial to make the necessary inquiry or what its reveals is respond inquiry if reversible error only “that an actual shows conflict interest existed and that conflict affected counsel’s performance.” Bonin, 837-838.) 47 Cal.3d at pp. case,
In this we need not determine whether the trial court’s failure to into inquire circumstances continu- surrounding campaign Massini’s ing representation of defendant was error. Even assuming trial court’s error, seeks, omission was defendant is not entitled to the reversal that he since the record neither of actual conflict supports finding nor impaired representation. d. Attorney Consultation Between the General’s and the Office
District Attorney’s Following the Recusal Office
Defendant argues that the trial court erred the recusal by modifying order permit consultation and assistance district office to attorney’s the Attorney General’s office. Briefly, these modifications permitted district attorney’s office to clerical and provide logistical to the support General, and Attorney (2) the General consult Attorney with Robert (Hickok), Hickok the deputy attorney district who prosecuted prior case to the recusal. The court specifically direct prohibited any participation by in the Hickok trial any concerning communication between case Hickok Massini. We find no grounds upon which defendant would be entitled to relief.
The decision to recuse the Mendocino County District Office Attorney’s is not challenged on appeal. That decision governed by is section 1424 and 1000
requires showing “a conflict of interest exists such as render it would that the defendant unlikely would receive a fair trial.” The issue on is appeal limited effect of continuing contacts between the district attorney’s office and the General’s office Attorney following recusal.
We conclude that the recusal was not undermined by modifications to the order. While defendant has not harm specified any flowing purported from the continuing contacts between the district and the attorney’s office office, Attorney General’s we assume that objections his are premised upon possibility confidential information was made the prose- known to cution. We find no support for such a claim.
First, the modifications order protective safeguards incorporated protecting defendant’s confidential information. first two modifications to the recusal order for provided consultation with Hickok to end to the prior time that Massini was scheduled to assume her new office. The order as finally modified incorporated an ethical wall around Massini for purposes this case by prohibiting Massini from discussing the case with Hickok and limiting areas of consultation between Hickok and the General Attorney to events that occurred to Massini’s prior election. These were safeguards sufficient to protect defendant’s interests confidentiality of com- munications (See between defendant and Massini. v. Hernandez 674, (1991) 652]; 235 Cal.App.3d 680 People Lopez (1984) Cal.Rptr. [286 813, Cal.App.3d 333].) Cal.Rptr. [202 Second, no support exists for an inference that Massini violated actually the court’s orders her ethical breaching duties to defendant. Defendant virtue acknowledged, by of his stipulation to the recusal order finally as modified, that Massini would not violate her professional obligations by revealing his confidences or or strategy otherwise cooperating prose (Cf. cution. People v. Chadwick Cal.App.3d 864].) Hickok, Cal.Rptr. trial judge, who knew both Massini and expressed his “confidence in their professional and ethical integrity judg assessment, ment.” “That made from a vantage point close to circum involved, stances and people is entitled to our deference.” (People Lopez, supra, 155 Cal.App.3d citing People v. Conner 3. The Public Representation Prosecution Witnesses Defender’s When Massini relinquished position of Mendocino County Public Defender, Ronald (Brown) Brown assumed that position became co- trial, counsel with Allen this case. During course of several alleged
1001 Brown, in as Mendocino involving conflicts Brown arose. his capacity Defender, County Public had witnesses represented prosecution previously Smith, Brown had Boyd (Boyd), Stevens Matt Williams. also Robyn Williams. personally represented Boyd,
a. Smith and Stevens Defendant that in circumstances a conflict correctly contends some of result an attorney’s interest can from of to client and duty loyalty professional obligations attorney’s from or fiduciary arising present (See former of an witness in a different representation opposing proceeding. 448, Leversen Superior Court 538 Cal.Rptr. [194 reveals, however, 755].) P.2d record that no actual or potential conflict resulted from the representation Smith and Stevens Boyd, defender’s office. public
Brown, court, as an officer in was the best to assess position whether a conflict of interest existed or was likely (E.g., arise. (1988) 45 310].)
Belmontes Cal.3d Cal.Rptr. P.2d Brown represented to court that he no possessed confidential information ibid, relating to in any (See three witnesses actual or question. [no potential conflict found in similar in the circumstances context of arising firm under defender].) contract to county be conflict Both Brown public and Allen represented to that court the cross-examination of these witnesses would not be affected by any prior representation by the public Furthermore, defender’s office. neither Brown any nor office represented Therefore, of the witnesses at the time of her his or cross-examination. did not have any interest attempting to shield these from witnesses impeachment or to otherwise ensure that their testimony well-received. (Cf. In re Darr Cal.App.3d
We reviewed the instances where defendant claims cross-exami- nation of these so, witnesses was prejudicially deficient. After find doing we no reason to conclude alleged conflicts affected adversely defend- ant’s representation.
b. Williams
The purported conflict arising from of Matt prior representation Williams is more troubling. public defender’s office had represented Williams on several juvenile charges time during periods when neither Allen nor Brown was associated with the office. Brown also had personally represented Williams connection with a receiving charge stolen prop This erty. representation began February of to the time that prior *47 Brown became the defender and commenced work on defendant’s public case.
Upon learning Williams would be a in defendant’s likely witness case, Brown sought guidance regarding how to with proceed representation of his clients from the Mendocino He County Court. was advised to Superior Williams, terminate his Allen representation disclosing to refrain from Williams, confidential any information about and to for Allen to arrange conduct Williams’s cross-examination. above,
Unlike the prosecution other witnesses did discussed Brown per- in sonally represent Williams and was possession attorney-client informa- Therefore, tion. although Brown had withdrawn from his representation witness, this in likely would have been a situation of divided professional if duties he had cross-examined Williams or assisted that cross-examina- Court, (See tion. Leversen v. Superior supra, 538.) 34 Cal.3d at p. Brown, however, witness; did not cross-examine Allen this Allen did. was not a position of conflict with to this witness. Both as respect attorneys officers of the court that Brown did Allen represented with provide any confidential information obtained from or relating to Williams.23 Sworn have representations been held to be effective in the court that assuring insulation of confidential prior from present representation communications has occurred and will (See continue to People Lopez, supra, occur. also v. 827; Hernandez, at Cal.App.3d p. supra, Cal.App.3d p. 680.)
Allen also represented to the court that Brown’s conflict would not affect his cross-examination of the witness. Allen inwas the best to make position Belmontes, this determination. 776.) 45 Cal.3d at p. Upon record, reviewing we have no difficulty crediting Allen’s representation. We cannot find or hypothesize any failing on Allen’s that could part be attributable to information that any Brown have may received from Williams or any from solicitude Brown have felt may for his former client. There was no adverse simply effect on defendant’s representation resulting from Brown’s potential conflict of interest.24 23Even if Brown had breached doing, his ethical duties so we do not see how such
action, been, might as serious as it have have would worked to the detriment of defendant. 24Defendant contends that the deprived conflicts reviewed herein right him of his to two appointed pursuant (d). counsel to section subdivision For the same reasons this ante, argument rejected (see, previously 21), rejected fn. it must be in this context also.
c. Wood Error Wood connec- Defendant contends that the trial court committed error (Wood v. alleged tion with the above mentioned of interest. Geor- conflicts *48 261.) the trial supra, 450 U.S. we need not determine whether gia, Again, court’s the defendant’s conflicts was alleged into or waiver inquiry in with regard, sufficient. error this defendant fails to demonstrate Assuming to one of both the existence of respect any purported of conflicts interest Therefore, an conflict an actual adverse effect on his representation. Bonin, (People supra, defendant is not entitled to reversal ground. on this v. 837-838.) 47 Cal.3d at pp.
E. Tape-recorded Admission Statement to of of Defendant’s Refusal Handwriting Provide Exemplar
Defendant next contends that the into evidence a admission of statement, in tape-recorded which he to with refused a court order to comply provide handwriting violated his under the Fifth and exemplar, rights Sixth Amendments to the federal The Constitution. was handwriting exemplar in sought an to further link the attempt jeans bloodstained to defendant matching handwriting with notes in the found pockets. we
Preliminarily, (Evid. observe that claim defendant’s has been waived. Code, 353, (a).) subd. At trial objected § to introduction of the on the tape grounds of relevance prejudice.25 did not raise his Appellant constitutional claim.
Moreover, we would reject this claim the
even
on
merits
if it were not
barred.26
procedurally
of a
Compulsion
handwriting exemplar
permissible
is
under the Fifth
(Gilbert
Amendment.
(1967)
v.
388 U.S.
California
1178, 1182-1183,
266-267
L.Ed.2d
1951].)
[18
87 S.Ct.
The taking of an
“
not
exemplar is
‘critical’ stage of the
proceedings
criminal
entitling
to the
(Id.
assistance of counsel.”
[defendant]
L.Ed.2d at
p.
p.
[18
Furthermore,
the refusal of a defendant to provide an
in
exemplar
violation of a court order is admissible evidence
defendant’s con-
guilt. (See
sciousness of
People v.
(1966)
Ellis
536-539 [55
385, 421
P.2d
South Dakota
sample];
393] [voice
v. Neville
748, 756-761,
U.S.
560-566
L.Ed.2d
Defendant nevertheless insists in manner which the tape-recorded statement was elicited constituted both (Rhode impermissible interrogation does 25Defendant his objections grounds renew on these this court. claim, 26Because we find no merit to defendant’s we conclude that trial counsel was not ineffective failing for object during trial to the tape-recording grounds. on constitutional Innis, 291; Edwards, Island supra, 477) 446 U.S. supra, 451 U.S. and the deliberate elicitation of an statement incriminating violation of Sixth Amendment right (e.g., counsel Brewer v. Williams 430 U.S. 424, 437-538, 1232]). L.Ed.2d 97 S.Ct. record does not support these contentions. (Prodan), record shows that Michael Prodan a special agent for the Justice,
California Department A contacted defendant jail. defense investigator also Prodan present. requested exemplar explained that the court had ordered defendant to it. As he was produce required do Ellis, 539), 65 Cal.2d at Prodan advised defendant of the adverse evidentiary with consequences refusing the order. comply Prodan confirmed that defendant understood these consequences and that *49 nevertheless did not wish to the produce exemplar. At several points, defendant remarked that did not see he why should assist the district in attorney “putfting the away.” During Prodan did not colloquy, him] in engage impermissible interrogation or in- deliberately to elicit attempt criminating statements from defendant. The or com- spontaneous gratuitous ments made by defendant during his with Prodan exchange cannot be attributed to Prodan’s permissible to obtain the attempt handwriting sample. (See People Johnson 1224 Cal.4th Cal.Rptr.2d l].)27
F. Admission Psychiatrist’s Testimony Pretrial of Defense Defendant next the challenges trial court’s ruling permitting the prosecu- tor to the impeach of his testimony trial with the experts testimony, given statements, pretrial hearing to suppress defendant’s incriminating of Dr. Peter Mayland, a defense psychiatrist. Defendant claims that this decision violated his federal and state constitutional rights to counsel and against self-incrimination, as well as state laws the governing attorney-client privi- We find lege. no error the court’s ruling.
1. Background Dr. Peter Mayland (Mayland) was appointed to assist the defendant and his counsel investigating a defense based upon defendant’s mental Code, state at the time of (Evid. the crimes. 1017.) assisted Mayland §§ defense counsel throughout course of for and preparation during the trial. 27We find neither legal nor factual support for defendant’s contention that introduction of tape violated his rights constitutional because provide his “refusal to a handwriting exemplar wholly unrelated to the substantive counts with charged.” which he was In particular, we conclude that neither v. Hess Cal.App.3d 268, 43 A.L.R.3d nor United States v. Nix (2d 1972) 643] Cir. 465 F.2d supports defendant’s claim for exclusion tape of the on grounds. constitutional noted, as a witness during
As the defense called previously Mayland Mayland defendant’s confessions. hearing on the motion pretrial suppress he harbored doubt” that could have “significant appellant testified that making incriminating waived his constitutional his voluntarily rights prior that he first met defendant approxi- statements to He testified police. He two after the murder at the of defendant’s counsel. mately days request or continued to see the defendant on a basis for one weekly approximately during his two hours a visit. He testified about of the defendant impressions occasions, their On had meetings. at least two separate pro- cross-examination, vided detailed of the Under Mayland accounts crimes. crimes, recreated defendant’s accounts of the notes to refresh using his recollection. These notes were to the produced prosecutor. trial,
At the defense was that defendant was from a suffering “rage reaction” at him time crimes that from prevented formulating intent to kill. requisite Defendant called several experts testify support of his defense. Mayland was not called to at trial. The testify prosecution sought to impeach reliability defense conclusions experts’ referring to aspects various of defendant’s statements Mayland.
After extensive briefing argument on this the trial subject, court concluded that the could prosecutor use defendant’s statements to Mayland to impeach the defendant’s experts. the trial court ruled Specifically, that the “tendering defense” psychiatric waived Fifth Sixth Amend- any ment privileges. The trial court ruled also that defendant had waived the statutory attorney-client and psychotherapist-patient privileges.
2. Waiver Privileges
Since Mayland was appointed to assist defendant’s counsel under 1017, section all communications between defendant and were Mayland protected two by distinct privileges: psychotherapist-patient privilege Code, 952, 954, 1010-1027; the attorney-client (Evid. privilege. §§ 583, (1990) 399, v. Clark 50 Cal.3d 619-623 Cal.Rptr. 789 P.2d [268 127]; People 1035, 1060, (1988) v. Caro Cal.3d fn. Cal.Rptr. 757, 680].) 761 P.2d Defendant correctly concedes that at the time he trial, tendered his mental defense at he waived the applicable psychothera however, pist-patient privilege. Defendant argues, that the protection of the attorney-client privilege never was waived.
The Attorney General asserts that defendant waived the attorney-client privilege his protecting statements to when Mayland he called Mayland to testify during the suppression hearing. Attorney General is By correct. defendant hearing, the stand during suppression
calling Mayland revealed to Mayland his with be manifested an intent that communications (See, e.g., be waived. attorney-client privilege third and that parties 210, People v. Haskett case, that, of this the testi- Defendant counters under the circumstances the federal violation of impermissibly compelled mony question governing Defendant that the statute urges and state Constitutions. first state- excepts compelled waiver of the attorney-client privilege specifically (a) Evidence subdivision states ments from its Code section scope. waived with to a attorney-client respect relevant that the “is part privilege if the privilege, such holder of protected by privilege any communication coercion, the communication or significant without has disclosed a part anyone.’’28Relying primarily upon has consented to such disclosure made by L.Ed.2d Simmons v. United States 390 U.S. 393-394 [19 1258-1259, (hereafter Simmons), argues May- 88 S.Ct. 967] init land’s was coerced or when defendant testimony proffered compelled Fifth Amendment rights. order to protect rule
In the United States Court established a of use Supreme Simmons case, In a defendant’s in a immunity testimony hearing. for suppression A evidence the defendant was with armed critical charged robbery. piece defendant was a suitcase and fruits of against containing implements during The suitcase was seized without a warrant robbery. police search of the At a hearing, home of defendant’s mother. suppression defendant testified that he in order to establish his owned suitcase to assert Amendment exclude this evidence. The standing right his Fourth denied owner- testimony regarding motion was and defendant’s suppression *51 (Simmons, supra, of the ship guilt. suitcase was admitted at trial to his prove 1251-1252].) U.S. at L.Ed.2d at 390 379-381 pp. pp. [19 The the testimony Court ruled that defendant’s at Supreme ultimately was within the of the Fifth Amend- suppression hearing compelled meaning (390 ment and at guilt. could not be used at trial to his U.S. prove pp. 1258-1259].) 393-394 L.Ed.2d at pp. high court reasoned [19 in should not be sacrifice placed being of forced to one position (the right constitutional of the Fifth Amendment’s self-incrimi- protections clause) nation in order to to vindicate another attempt right constitutional 912, (c) 28Defendant also relies upon Evidence Code section subdivision to May- shield pretrial testimony. land’s This subdivision states: “A disclosure that is privileged itself is not any privilege." authority waiver of Defendant cites no for the applicability of this subdivi consideration, sion to the facts of case. this After we find the subdivision does not aid defendant’s position. sei- searches and (the Fourth Amendment’s on unreasonable prohibition 1258-1259].) zures). (390 L.Ed.2d at pp. U.S. at 393-394 pp. [19 the difficult facing court also to ameliorate choices sought This has in We have extended defendants wish to testify pretrial who proceedings. in immunity testimony use to defendants’ revocation pretrial probation occur trial. juvenile hearings status before hearings 384, 1024]; Coleman 13 Cal.3d Cal.Rptr. R. v. Superior Ramona Court 37 Cal.3d P.2d case Attorney provided
Neither defendant nor General as authority any in immunity which use for the of at a granted testimony psychiatrist After such pretrial suppression hearing. reviewing underlying policies immunities, use we decline find the rule to applicable Simmons Haskett, at (Cf. People situation hand. [rejecting for use retrial use request immunity during psychiatric testimony to bar of offered in by defense first trial lack authority on basis of support request].)
Assuming without that the deciding attorney-client waiver privilege is of constitutional pursuant dimensions Sixth Amendment and its state counterpart, we are not faced this case with an intolerable conflict between constitutional rights. Defendant was not to waive the compelled attorney-client privilege shielding his Mayland revelations to order to his support As suppression motion. illustrated health by fact mental trial, other experts Mayland than testified at were experts, who part team, the defense could have been readied called testify during pretrial hearing, thus obviating asserted constitutional dilemma. presentation Mayland’s testimony was a tactical choice that was not impermissibly coerced or compelled.
Defendant also appears to contend that his Fifth Amendment as rights, well as Sixth Amendment were rights, infringed the use of Mayland’s First, testimony. This argument is without merit. defendant’s statements to Mayland no were way coerced or nor did compelled, they any involve *52 action; Clark, state they were voluntarily (People made. supra, v. 50 Cal.3d 620, Second, at p. 30.) fn. defendant waived his Fifth rights Amendments with respect to statements made during examinations psychiatric requested or by agreed to when he by defense his mental state issue placed 883, during trial. (People (1988) v. Williams 44 Cal.3d 961-962 [245 336, 395]; Cal.Rptr. Buchanan Kentucky (1987) 483 U.S. 1008 336, 354-357, Tliird, 2906].)29
421-424 the jury L.Ed.2d 107 S.Ct. was [97 admonished that the statements could not be considered for the question (In Spencer truth of their content. re P.2d
In defendant waived the his summary, attorney-client privilege protecting statements when Mayland Mayland pretrial hearing took stand at and revealed them. The defendant waived the psychotherapist-patient privi- lege and the Fifth Amendment self-incrimination when privilege against rage testimony raised his reaction defense at trial. At that point, Mayland’s was not or constitutional protected by any applicable privilege right could be used The result by prosecutor for or rebuttal. impeachment reason, reached by necessary the trial court was correct. For this it is not address defendant’s this claims of from the use of prejudice resulting testimony impeach defense witnesses. Mayland’s
3. Use Testimony Purposes Other Than the Limited for Purpose Which It Was Admitted for
Defendant claims prejudice resulting from references by prose cutor during his summation at both the guilt penalty phases to statements that defendant made to Mayland. defendant contends that the Essentially, prosecutor used the statements as substantive evidence to the man relating committed, ner in which the crimes were rather than for the limited purpose for which were admitted—to they illuminate reliability expert opin ions. Our review of the arguments discloses three where the instances statements prosecutor’s tended to obscure the limited nature of the arguably evidence question. harm
Any from these flowing remarks could have been cured readily by an appropriate admonition following objection an the defendant. Defend- by ant objected during trial to only the comment made during prosecutor’s therefore, rebuttal statement during guilt phase; objections to the Haskett, other two comments were waived. Cal.3d at p. 244.) 29Powell v. Texas U.S. 680 distinguish L.Ed.2d S.Ct. is 3146] able. The defendant in that case was by ordered the trial court at the request undergo state’s psychiatric appointed examination an psychiatrist. Neither the accused attorney nor his that, informed about the scope of the examination and the accused was not informed state,
since the required examination was by the he had right to remain silent. *53 rebuttal, find no oc- we prejudice With to the comment respect during the trial Although objection. curred.30 trial court sustained defendant’s limited which the use for to a admonition give specific regarding court failed admitted, a to were the trial court provided defendant’s statements Mayland however, instructed, both to the was general jury prior admonition.31 later deliberations to argument again during response questions the were “admis- experts whether of defendant’s statements to regarding any evidence,” such to be as evidence of testimony sible that was not considered Therefore, although the a by the truth of facts disclosed statements. court, any was the trial immediately given by admonition specific (People v. prejudice by the trial court’s instructions. potential dissipated 689, supra, 17.) There likelihood Mickey, 54 Cal.3d at fn. is no reasonable p. Clair, (See 663.) 2 Cal.4th at People that the was misled. v. jury p. Further, that, we find admonitions and instructions that given repeated was not to consider defendant’s to the defense for jury statements experts content, their challenged no from comments prejudice any by arose of whether these are viewed cumula- prosecutor, individually comments or 17; (Cf. People at fn. tively. Mickey, supra, Cal.3d Hawthorne 4 Cal.4th Cal.Rptr.2d Questions 4. Relating Meetings Mayland to with Defendant’s
Defendant also that claims certain to questions by prosecutor defense Ronald experts Drs. Roberts and Raffle constituted Stephen prohib Code, ited comment on the exercise of to Evidence privilege pursuant section because these questions meetings contained references to be tween defendant and Mayland. We defend disagree. Mayland’s meetings with ant to the prior hearing were within the suppression testimony scope Therefore, that hearing. at the time the prosecution asked to questions which defendant objects, now there was no exercise privilege respect with to facts these relating to interviews. The did not prosecutor’s questions constitute impermissible comment on defendant’s exercise of a privilege. However, prosecutor’s 30The argument rebuttal pertinent part: states in what I’m “['][] saying a rapist is that necessarily does not have purpose as his sole the forced act of sexual obviously intercourse. This man purposes you had other can tell that the statements of, tit, Dr. Mayland, by the graphic show statements me some And the bitch. statement of suck my Again, Dick. sorry graphic I’m to be important point so but it’s out this that man had purpose humiliating demeaning girl. why that That is one reason he doesn’t humiliate, simply demean, want to do the act of sexual intercourse. He degrade wants that girl so she nothing. is That is a standard purpose rapist.” “The Court: give I will same given admonishment I’ve for all counsel. Counsel may on comment only any evidence may deduction that be reasonable made from the Anything evidence. else improper. is Proceed.” *54 Accept 5. Failure to Proposed Settlement the Record Defendant’s Defendant next argues settled proposed record establishes that the trial erred by court admitting Mayland’s testimony any for purpose during the trial. Defendant asserts that the court and the had prosecutor assured defense counsel an during conference unreported that Mayland’s testimony would not be used for any trial and purpose during that trial counsel relied these upon assurances deciding Defend- present Mayland’s testimony. ant contends that the trial court erred in denying his motion to settle the record, which would have substantiated this claim. Defendant also contends that he was deprived of his to be right all the trial present during stages of since he was absent from unreported conference. Background
a. During appellate record correction process, counsel appellate moved for settled statement detailing contents of an conference that unreported occurred during suppression hearing. trial court accepted declara- tions and oral testimony from trial counsel regarding the circumstances of alleged this conference. Briefly, defendant’s trial attorneys contended in-chambers, occurred, that an unreported discussion during recess Evidence Code section 402 hearing and the time prior to Mayland witness, called as a in which the judge, and both prosecutor defense counsel Both participated. defense testified that the attorneys issue of whether Mayland’s stand, if he were testimony, to be called would later be admissible at trial was discussed this during conference. Allen recalled that he announced his intent to call Mayland to if we testify “only could be assured that his could testimony not later be introduced at Mr. conversation, Clark’s trial.” As a result of this both defense left the attorneys chambers with the impression that the defense could call Mayland as a witness at the suppression hearing without his later testimony being used at admitted, however, trial. Allen subsequently that the trial court did not rule on this issue.
The prosecutor’s recollection of the conversation differed. He testified
that all counsel had been in
when
chambers
the court
about the
inquired
probable
length
remainder of the
Defense
hearing.
counsel mentioned
that a psychiatrist might be called as a
witness.
court directed that it be
informed
end of the
as
day
to whether the witness would be called. At
that point, the prosecutor recalled counsel
In
leaving chambers.
the court-
room, outside
presence of the
Allen and
judge,
the prosecutor dis-
cussed the evidentiary implications of Mayland’s
and the
testimony
possible
Simmons,
relevance of
supra,
The trial court In the of the court doing denied the motion. course the that the had in the found “Simmonsissue” not been discussed of presence and that the material to on “scheduling any court discussion” was not issue appeal.
b. Discussion
This court recognized has that settlement of the record is repeatedly a question of fact to be resolved court. v. primarily (E.g., People trial 183, 30; 2 Hardy, supra, 53 p. (1991) Cal.4th at fn. v. Beardslee People 68, 276, 1311].) Cal.3d 116 Cal.Rptr. 806 P.2d Once settlement is [279 ordered, the trial court has broad discretion or accept reject counsel’s with their representations (People accordance its assessment credibility. of Beardslee, 116; supra, v. 53 at Cal.3d v. p. People Gzikowski 580, 584-585, 339, Cal.3d fn. 2 1145].) 651 P.2d Cal.Rptr. Defendant’s [186 that he contention was to a entitled on issue before a hearing this other judge than the trial judge case is this meritless.
Moreover, the trial court did not
its
abuse
broad discretion. The
recollection of the
conflicted
in-
participants
regarding
content of the
chambers discussion.
the court
Both
and the
recalled that
prosecutor
issue”
“Simmons
was
raised in
not
the court’s
presence.
prosecutor
recalled discussing it with defense counsel
outside
presence
Substantial
Further,
court.
evidence
supports
findings.
trial court’s
given
these
findings,
trial court
determined that the
correctly
proceeding
question
not the
may
be settled
type
under
California
Rules
Gzikowski,
584-585,
Court.
v.
supra,
Defendant further to call as a by deciding Mayland witness without order from the or a obtaining an court commitment binding trial, use prosecutor Mayland’s testimony from the not to at his trial attor rendered ineffective assistance to is neys argument pre him. Defendant’s his trial never mised fact that testified that would upon attorneys they have called to the stand if believed his Mayland they testimony had that could used at be trial. counsel,
In order to on his claim ineffective assistance of prevail (1) must demonstrate his was defi attorneys’ representation in it cient fell below an under objective standard reasonableness norms, professional his prevailing attorneys’ representation deficient i.e., that, him subjected there prejudice, is a reasonable but for probability attorneys’ his the result failings, would have been more favorable to him. 674, 693, (Strickland v. Washington (1984) 466 U.S. L.Ed.2d 687[80 2052]; 104 S.Ct. In re Wilson 3 Cal.4th Cal.Rptr.2d context, 1222].) In this reasonable is a probability probability “[a] (Strickland sufficient to undermine in confidence the outcome.” v. Washing ton, supra, 697-698].) 466 U.S. at p. pp. L.Ed.2d at
We need not decide whether defendant’s trial were attorneys because defendant is incompetent, unable to demonstrate that the alleged is, resulted in deficiency prejudice—that that more favorable result would have been reached at either the guilt or had penalty phase Mayland’s First, been excluded from the testimony trial. appellant’s statements to were Mayland not admitted at trial for their truth. Their use was sole for Second, of the impeachment experts’ defense opinions. Mayland’s use of Smith, Roberts, testimony impeach the testimony of Drs. and Raffle represented small portion prosecutor’s cross-examination of these witnesses. these testimony of witnesses contained contradictions. many rebuttal, In evidence, the prosecutor additional presented including credible expert testimony, that cast further doubt of the evalua upon reliability tions of the defense experts. Additionally, testimony of numerous per witnesses, cipient who observed defendant within following hours after taken test crime, the blood revealed drugs levels of low Based theory. reaction” “rage defendant’s upon arrest cast doubt defendant’s result record, favorable that a more we conclude our review of upon if Mayland’s even have resulted would not or guilt penalty phase either the trial. during never referred to had been testimony pretrial Misconduct Alleged G. Prosecutorial misconduct” “egregious that the prosecutor’s Defendant next contends Sixth, Eighth in violation of unfair fundamentally
rendered his trial Defend- rights. state and their rights corresponding Amendment Fourteenth these to preserve order a curative admonition ant failed to and seek object Haskett, (People v. for appeal. misconduct alleged points prosecutorial Nevertheless, each claim on we consider 244.) supra, 52 Cal.3d conten- of counsel ineffective resolve assistance potential merits order to at trial. object counsel’s failure to tions based upon *57 Hearsay Material Using 1. Cross-examination cross-exam that the prosecutor improperly Defendant complains scholarly a hearsay: ined Dr. Raffle two forms of inadmissible Stephen using jailhouse report. article Dr. Bernard Diamond and a by Article a. Diamond Diamond, entitled “With Bernard by used an article Dr. prosecutor Raffle, and a portion in cross-examination of Dr. Aforethought,”
Malice his the examination. Section in the course of jury of the article was read to 721, scholarly of (b) the Evidence Code use governs subdivision of This permits in the witnesses. subdivision expert works cross-examination to, considered, relied or such materials when the expert the use of “referred Code, (Evid. forming at or arriving opinion.” such upon publication 721, that he considered (b)(1).) (1) testimony In Dr. Raffle’s light subd. § conclusions, (2) relied at his training arriving or all of his upon and irresistible capacity of the defenses of diminished relationship abolished intent commit his crimes to his that defendant lacked the impulse opinion reaction, with Dr. (3) association due to a Dr. Raffle’s former rage works, the article including Dr. Diamond and his with Diamond’s familiarity work scholarly witness this using the cross-examination of the question, federal or consti- We find violation of defendant’s state was no permissible. during article trial. from the use of this statutory rights arising tutional or Reports b. Jailhouse was that defendant
In an Dr. Raffle’s impeach opinion effort Grover, Raffle asked prosecutor remorseful about the death of Rosie whether his opinion on this subject would be affected if he learned that “boastful, defendant had displayed attitude cocky about the crime” while trial, inwas the Mendocino County jail. At the only objection to this line of questioning the defendant had not received a copy report from which this was taken. A defendant does who comment statements, object and seek an admonition to disregard improper argument or inquiry by prosecutor waives such any error unless the harm caused could not have been corrected by appropriate instruction or retraction. (People Bell 49 Cal.3d 129].) 778 P.2d Cal.Rptr. Clearly, harm any caused prosecutor’s reference to the con tent of this report could have been if corrected an objection had been made Therefore, at trial. defendant’s claim is waived. barrier,
Putting aside the procedural we need not decide whether the erred, prosecutor because any harm resulting from use of the did report VI, not result in a miscarriage justice within the meaning of article section 13 of the Constitution. California v. Lewis The questions regarding jail- house were report brief very of an portion extensive and effective cross- Moreover, examination of this witness. the jailhouse was not the report only evidence used to question witness’s conclusions the defend- regarding ant’s feelings of remorse (See, for the post, 1016-1017.) crimes. at pp. Under circumstances, these we find that no accrued prejudice to the defendant. *58 2. Cross-examination on Topics Irrelevant
Defendant next contends that the prosecutor to cross- permitted examine defense experts on various irrelevant and prejudicial topics, includ remorse, ing future dangerousness, lack of and of the sodomy victim. a. Future Dangerousness
Defendant that the complains prosecutor impermissibly about his inquired future dangerousness through questions asked of Drs. Roberts and Raffle. These questions asked whether certain of Dr. Roberts’s findings could be viewed as inconsistent with specific statements by defendant to the effect that, if defendant circumstances, were faced with the same set of he would kill rape and again. objections
Defendant’s on the grounds of relevance at trial were over- ruled. the court Although the permitted it testimony, expressly admonished the on jury: “[N]obody this earth can what predict is somebody going to do I However, the future. don’t care who they are. you may [f] consider such credibility any or the of it of this witness goes credibility as to the testimony testimony consider such an also testifying expert. may witness as You other testimony not consider such witness but goes impeach any you may as it can that. . . .” nobody do the truth of future behavior because validating for this testimony Raffle’s on also to a reference to Dr. objects Defendant After a at the closing guilt during argument phase. the subject prosecutor’s record, subject on this responses review the we find that inquiry of that neither the questions were for permissible impeachment purposes the court’s exceeded the boundaries of nor comments by prosecutor ruling admitting testimony. that his on
Part of reaction” defense was behavior “rage defendant’s only character and be was inconsistent with his could night crimes attributable to of Defendant’s ingestion drugs. psychological profile Raffle character were direct examination of Drs. extensively probed during Moreover, defendant and Roberts. both how the experts regarding opined The fare in would the future the structured environment of prison. were drawn inferences from Dr. Roberts’s questions from prosecutor’s of defendant. inferences tended to show profile These psychological defendant would commit the same crimes if confronted with the same were circumstances in the future. Accordingly, prosecutor’s questions of relevant to of the defense evidence that crimes were out credibility character for this defendant.
Moreover, Dr. opinions upon acceptance Raffle’s many depended the truth of prosecutor effectively statements made defendant. demonstrated of defendant’s state- through many cross-examination that lies, have may ments thus the foundation Dr. Raffle’s undermining been examination, On direct Dr. opinions. specifically Raffle testified if told him that faced with the he would not same circumstances kill and rape again. directly tended to cast doubt prosecutor’s questions *59 statement, Raffle upon of defendant’s a statement that Dr. veracity as true relied in accepted upon reaching opinion.
The testimony on “future relevant tes- dangerousness” was impeachment timony and the in jury only was instructed use it that manner. prosecutor (See People committed no misconduct in this eliciting testimony. 826, 802, (1990) v. Mattson P.2d Cal.Rptr. 877-878 789 983] [268 [penalty phase].)
Finally, prosecutor’s during reference to this his summation subject fact, was brief In impeachment related to the testimony. purpose the prosecutor was to consider specifically that the not acknowledged jury
1016 future possibilities its deliberations. The did commit prosecutor misconduct in this brief making (1992) statement 2 v. Visciotti 1, 495, Cal.4th 82 388]), 825 Cal.Rptr.2d P.2d and no prejudice could have arisen therefrom.
b. Lack Remorse Defendant next complains prosecutor permitted to attempt elicit from Dr. Raffle on cross-examination that certain conduct of the defendant demonstrated lack of remorse for In his crimes. defend- particular, ant points cross-examination based the Mendocino upon jailhouse County discussed report above and the fact that defendant carried the victim’s bottle of wine cooler from the scene of the crime and drank from it.
We reject defendant’s claim of irrelevance and prejudice arising from First, these lines of questioning. defendant did not object to either line of questioning trial during on the grounds of relevance or prejudice. These objections (See 86, thus were People waived. 2 Hardy, supra, v. Cal.4th 271, 208-209 [penalty phase]; People v. Roberts Cal.4th 335-336 [6 276, Second, Cal.Rptr.2d 274].) P.2d defendant himself the issue placed of his remorse into question during Dr. Raffle’s direct examination. Dr. Raffle testified several times that defendant’s “guilty conscience” was sig- Moreover, nificant his diagnosis of defendant. Dr. Raffle was asked to assess the significance of defendant’s the wine possession of cooler follow- ing crime. Dr. Raffle stated that he did not know what that fact meant. The prosecutor’s questioning lack of regarding remorse under these circum- stances was relevant (See and not prejudicial. Heishman Cal.3d
c. Sodomy Defendant further contends that the prosecutor committed misconduct both by questioning Dr. Raffle whether the regarding himto spoke about Rosie sodomizing Grover during the course of the and also rape the issue raising of possible sodomy during his closing argument. Defendant argues that he was not charged with sodomy that there was no evidence sodomy the record.
First, defendant did not object either to the prosecutor’s to Dr. questions Raffle or to the discussion of in the sodomy prosecutor’s closing argument. therefore, His objections, were waived. (People Noguera (1992) 4 Cal.4th *60 Cal.Rptr.2d 1160].) 842 P.2d
Nevertheless, merits, the claim addressing on we find the no misconduct. First, the pathologist testified that “rare had been found spermatozoa”
1017 that, Second, presence upon testified based Officer Gall victim’s anus. stomach, to believe there was some basis victim’s on the a white material the assault. during her at some point had been on stomach that the victim theory overwhelmingly prosecutor’s support the evidencé does not While occurred, in the record basis evidentiary there was a sufficient sodomy that the prosecutor’s Dr. Raffle and to justify prosecutor’s question to (1992) Cal.4th (See v. Thomas People during closing argument. statements P.2d Cal.Rptr.2d 526 [7 Further, that, references fleeting if even the prosecutor’s we conclude First, misconduct, Dr. not prejudicial. deemed were they could be sodomy Second, given this crime. committing denied Raffle testified that defendant murder, and the nature of the brutal extremely the evidence of rape, references this that the brief it youth, reasonably likely victim’s is not inflammatory. Finally, were sodomy trial to the lengthy possibility attor- by neither nor statements questions was instructed that jury explicitly jury that the find reasonable likelihood are evidence. We no neys Thomas, 526.) (Cf. 2 Cal.4th at misled.
d. Cumulative Error alleged from the argues resulting prosecutor’s Defendant cumulative error (See People v. find reversal. misconduct. We Hawthorne, no cumulative error supporting 79.) supra, Cal.4th at p.
3. Attack on Dr. Raffle misconduct
Defendant next that the committed prosecutor contends times as a to him numerous by attacking by referring Dr. Raffle personally failed to again “liar” and summation. Defendant during cross-examination object complains, and statements of which now many questions that, thus We after Dr. waiving objections. reviewing further conclude trial, it is during Raffle’s and the of other testimony testimony experts that apparent prosecutor question sufficient existed for discrepancies circumstances, Dr. Raffle’s Under these it was not veracity. prejudicial during closing argument misconduct for the to refer to Dr. Raffle prosecutor “liar,” drawn from the as since this was one inference that could be admitted Cal.4th testimony during (People trial. v. Pinholster is permitted urge, Cal.Rptr.2d [“prosecutor 571] terms, credence”].) colorful are entitled to defense witnesses Purported Evidentiary H. Other Errors “Blood-spatter” Testimony
1.
Defendant argues subject “blood-spatter” on testimony test Linton von failed Beroldingen Kelly/Frye to meet *61 1018 144,
Kelly (1976)
1240];
First, issue, with to the respect Kelly/Frye this was not objection raised the trial court and defendant failed to this issue for preserve (People appeal. 648, (1990) 788, Kaurish 52 Cal.3d 278].) Cal.Rptr. 802 P.2d [276
Second, obstacle, overlooking the procedural the objection is without merit.32The testimony issue here raises none of concerns by addressed Kelly/Frye. law, “The methods employed are not new to or the [science] they no carry misleading aura of scientific infallibility.” (People v. Stoll 1136, (1989) 111, Cal.3d Cal.Rptr. 783 P.2d [psycholog [265 698] ical fact, profile testimony], italics in In original.) admissibility “blood-spatter” or “blood dynamics” this testimony state our predates Kelly decision. (People (1957) v. Carter 48 Cal.2d 750-751 P.2d [312 Moreover, 665].) neither the experiments conducted in with connection such analysis nor the principles it an underlying produce “aura of scientific Rather, infallibility.” it is a matter of common under knowledge, readily stood jury, that blood will be if expelled from human it is hit body with sufficient force and that inferences can be drawn from the manner which the expelled blood lands other upon objects. Kelly/Frye rule is inapplicable.33
To the extent that defendant now renews objection his to the qualifications of Linton von Beroldingen, this is objection also without merit. “A person skill, is qualified to as an if testify he has expert special knowledge, experience, training, or education sufficient him as an qualify expert on the subject Code, 720, to which (Evid. relates.” testimony (a).) subd. § The trial court’s determination that a witness is qualified as an will expert not be reversed on appeal absent a clear abuse of discretion. 372].)
Chavez No abuse of discretion is shown on this record. The witness had: (1) attended lectures and seminars training on the subject blood dynamics 32For a review evidence, of decisions addressing the admissibility of “blood-spatter” see Annotation, Prosecution, Admissibility, in Criminal of Expert Opinion as to Evidence “Blood Splatter” Interpretation (1993) 9 A.L.R.5th 369. This annotation demonstrates majority of courts that have considered the issue have type testimony determined that this is admissible varying grounds. on reasons, effect, 33For this and other we do not address Kelly any, if on our decision of Pharmaceuticals, high court’s recent decision in Daubert v. Merrell Dow Inc. _ U.S. L.Ed.2d 113 S.Ct. *62 literature; (3) conducted relevant (2) read Oregon; California and in both “blood-spatter” where crime scenes visited experiments;34 relevant 750; Carter, but see at supra, 48 Cal.2d v. (People were conducted. tests reason- 851-852.) The trial court at pp. 31 Cal.3d Hogan, supra, v. People in inquiry. its the jury to assist was qualified that the witness concluded ably “blood- have resulted could possibly no from Finally, prejudice inflamma- not in was brief testimony question testimony. spatter” murder. of brutality evidence of in of the tory light ample Testimony 2. Dr. Coleman's Dr. Lee by court erred permitting that the trial
Defendant next contends witness for as a rebuttal (Coleman), testify psychiatrist, Coleman regarding testified the trial. Coleman during guilt phase prosecution defense by offered testimony certain psychiatric the doubtful value of state of defendant’s Dr. Raffle regarding that offered especially experts, mind at the time crimes. objections rejected
Defendant that in a recent case we similar concedes (1992) 3 Cal.4th Danielson the same Coleman. testimony by such 729].) Defendant’s attempt 728-731 Cal.Rptr.2d merit. Considerations this adverse is without factually distinguish authority conclude that the in lead us to similar to those our expressed prior opinion nor improper prejudicial. admission of Coleman’s was neither testimony (Ibid.) that he was on the testimony ground
Defendant also to Coleman’s objects unreliability of “the give subject on qualified expert testimony subject expert and that this is not a psychiatric testimony” subject proper the facts elicited voir These contentions lack merit. Based testimony. upon witness, discretion permitting dire of the the trial court did not abuse its Coleman’s opinion testimony. testimony premised that are challenges 34Defendant’s to the foundation of the witness’s substantially fact under similar
upon past experiments that his were not conducted Carter, rejected given circumstances as the crime are for the same reasons page 750. I. Jury Instructions
1. Unconsciousness
a. Failure to Define
The jury was instructed on the presumption of consciousness based upon language of CALJIC No. 4.31.35Defendant that the instruc argues tion was defective because it did not include a definition “unconscious.” The defendant further contends that the trial court had a duty sua sponte define this term. We reject defendant’s claims.
Assuming without deciding “unconscious” sufficiently legal, has a technical meaning (see a sua require sponte instruction v. Howard 375, (1988) 842, 44 Cal.3d 279]), 749 P.2d there is no Cal.Rptr. [243 in question this case that the instructions jury given as adequately conveyed to the jurors that the law contemplates an unconscious can be person capable movement. CALJIC No. 4.31 itself jury advised the that a reasonable doubt that the defendant was conscious that he required finding was if unconscious even he “acted ifas he were conscious. . . .” CALJIC 8.47, court, No. as given by told the jurors that find that the you “[i]f Defendant killed while unconscious as a result of voluntary intoxication and therefore did not form a specific intent to kill or did not harbor malice aforethought, his killing is involuntary Both of manslaughter.” these instruc- tions unmistakably to a convey reasonable juror information that defend- ant claims was from the missing instructions.
b. Constitutionality Defendant further contends that CALJIC No. 4.31 unconstitutionally shifted the burden to defendant to in prove unconsciousness violation of his due process rights under the federal and state Constitutions. We have previously rejected 660, this claim. (People (1988) v. Babbitt 693-694 253].)
Defendant contends that “subsequent decisions” of the United States
Supreme Court nevertheless
his claim. The
support
only such decision cited
4.31,
court,
given
35CALJIC No.
as
by the
states: “If the
beyond
evidence establishes
reasonable doubt that
commission
at the time of
alleged
of the
offense the Defendant
conscious,
acted as if he
you
were
should find that he was conscious unless from all the
was,
fact,
you
evidence
have a reasonable doubt that he
alleged
conscious at the time of the
was,
fact,
offense. If the evidence raises a reasonable doubt that he
you
conscious
must find
that he was then unconscious.”
edition,
References
to CALJIC are to the 4th
published in
unless otherwise noted.
by defendant is Yates v. Evatt
2. Intoxication that,
Defendant next to include the introduc complains by failing 4.21, tory of CALJIC paragraph necessary No. jury deprived guidance to conclude that evidence of intent negate intoxication could *64 elements of both the murder and circumstance Accord special allegations.36 to defendant ing this harm was compounded instructing jury, pursuant 4.20, to CALJIC No. that intoxication was not a defense to the charge of Defendant that in rape. argues light of the given, jury instructions was free to conclude that voluntary intoxication could not the intent negate associated with the felony-murder charge or the premised upon rape special circumstance allegation premised upon rape. whole,
Viewed as a there was no reasonable likelihood that the was jury confused or misled regarding of defendant’s intoxication relationship evidence to his intent to commit these The crimes. trial court instructed the murder, jury that first and degree second attempted rape, findings special circumstances required certain mental states it later specified. was jury advised that the evidence of a mental disorder relevant was the existence of each of these offenses. The trial court instructed specifically “If the jury: evidence shows that the Defendant was intoxicated at the offense, time of the alleged should jury consider his state of intoxication in if determining Defendant had the specific intent or mental state required
for each crime charged. specific intent and/or mental in state is defined the definition of each crime you may consider.” The jury also was told that intoxication II, was not a defense to the “offense charged Count namely, . . . .” rape whole, When the are instructions viewed as a jury instructed that one charge was excluded from the scope of instructions on intoxication; voluntary all other offenses remained within their We scope. find that there is no reasonable likelihood that the would under- jury have stood the instructions to foreclose them from considering the evidence of defendant’s voluntary intoxication connection with the rape felony-mur- der charge or special circumstances allegation. 36The omitted language of which defendant complains now is as follows: “in the crime of
_ _ of which the defendant Count(s) information], is accused [in necessary element is the existence in the mind of the [specific defendant of the intent _] of_].” 4.21, state(s) (CALJIC [mental No. original.) brackets in the 1158, (1980) 50 Cal.3d People
Defendant’s reliance upon Ramirez 286, 965], conten- P.2d further support 1179-1180 [270 clarify the instructions duty trial court had a sua sponte tion that the has no to instruct duty The trial court unavailing. to intoxication is relating (1991) v. Saille intoxication. voluntary sua on sponte 588].) Cal.Rptr.2d 1120 [2 Guilt 3. Consciousness erred two by giving that the trial court
Defendant next contends
(1)
guilt
from
to infer consciousness
jury
instructions that permitted
2.03),
(see
No.
CALJIC
misleading
defendant’s
statements
deliberately
(see
handwriting exemplar
refusal to
a court-ordered
provide
defendant’s
defined
2.06).37
inferences
No.
He
that the
argues
permissive
CALJIC
Amend
the Fourteenth
the due
clause of
process
these instructions violate
L.Ed.2d
314-315
(Francis
ment.
v. Franklin
471 U.S.
353-354,105
implied
His basic
is that
instructions
premise
S.Ct.
that,
handwriting
if he lied about the crimes or failed to provide
kill.
with the intent to
it could be inferred that
acted
exemplar,
*65
rejected by
from the ones
distinguish
Defendant cannot
his contentions
Cal.Rptr.2d
v. Ashmus
976-978
this court
challenge
similar
substantially
In that case we
a
rejected
misleading concerning charge upon statements which he is guilt but it is tending prove a consciousness of consider such statements as a circumstance given circumstance and its prove guilt. weight to be to such a not sufficient of itself significance, any, your if are matters for determination." a handwriting sample, such you give “If find that the defendant refiised a lawful order to guilt tending to show a consciousness of may by you refusal be considered as a circumstance However, is not been relevant. such any sample might as to issue to which the have evidence your weight significance, any, are matters for prove guilt sufficient in itself to and its if consideration.”
III. Penalty Phase Evidence A. Evidence Aggravation murder, on the
Relying circumstances of the no prosecutor presented additional evidence in aggravation during phase. penalty
B. Evidence in Mitigation witnesses—relatives, friends, The defense presented testimony of 23 scoutmasters, counselor, a teacher health mental who all testified about the circumstances of defendant’s life and his recounting character. Without all details of each witness’s testimony, defense presented following story:
Defendant eldest child of Diane and Paul Clark Dean and the brother of Robert and Although Annette. some testimony indicated that abusive, defendant’s father drank and was defendant’s life was family relatively stable until his parents’ and his separation father’s subsequent death. While his were parents together, defendant was active the Boy Scouts and his served parents as Several scoutmasters. witnesses remem- scout, bered defendant as an “excellent” or “good” who interacted well with his peers.
Numerous witnesses recounted how defendant’s family situation deterio- rated dramatically after his parents’ separation, which occurred when defend- ant was about years old. Defendant’s mother worked menial jobs, often at night. children were left generally unsupervised. Defendant’s mother *66 shift, a developed drinking problem. After her she go would not home to the children, but instead would to have stop a few drinks at the local tavern. Defendant’s mother failed to a provide home or sanitary nutritious food for the children. Extensive testimony described the filthy conditions of the home. Defendant tried to care for his in younger sister his mother’s absence and to subdue the aggressive behavior of his brother. death,
After his father’s which was followed closely by the deaths of both his and paternal maternal grandfathers, a witnesses noticed in defend- change ant’s behavior. Defendant became and chronically depressed with- stayed in drawn his room for extended periods of time. time,
About this defendant and his brother began to drink and use drugs. Their house became the neighborhood “party house” and was akin to a “riot There area.” was conflicting testimony regarding whether defendant would the friends Several of when he was for his sister. caring intoxicants ingest “the violent that he was not the defendant’s house testified who frequented fights. up physical and broke type” frequently time, occasionally would siblings defendant and his this
During period and other grandmother His by grandmother. visit a ranch owned his maternal do who volunteered to defendant as a hard worker relatives remembered tasks at the ranch. the fall of 1980 received from family counseling
Defendant and his fight between March through counseling precipitated of 1983. defendant to be depressed defendant and his brother. counselor found was coopera- in due Defendant reading problem. and frustrated school to a family. tive and seemed to care for his during counseling custody placed defendant was removed from his mother’s Eventually in environment. He thrived the structured a foster home. apparently children the home. Defendant had a However, with the other relationship “beautiful” foster with his marijuana he drank beer and smoked occasionally son. mother’s home, in a special defendant was enrolled living
While foster defi- reading his significant education which to address program, began Defendant was a responsible as well as his emotional ciency problems. defend other He was and would student and did well his classes. popular the school drug usage during children. He continued to have a with problem he and anger teacher a need to day, escape pain which his attributed to felt about his mother brother. school, his he was forced to leave
When defendant from graduated high The owner Shop. foster home. He worked at the Aloha Saw and Mower him He lived for a remembered as a reliable worker with a attitude. good time Keith father recalled defendant as with Keith Michalek. Both and his with living never While he was good, “rowdy.” who was trustworthy person, Keith, did use but marijuana occasionally, drank beer smoked “hard” drugs. and come live job
Defendant’s mother convinced defendant to quit *67 him. Prior with her Anderson. His mother later moved to without Oregon suicide, move, to his mother’s defendant tried to commit as apparently result of a failed romantic relationship. Anderson, he defendant to care for Smith. living began
While was three months Robert Clark testified that Smith was a heroin addict. About murder, ne for the first time. injected before defendant methamphetami
1025 that defendant they Numerous witnesses testified that could not believe he had committed for which was convicted. the crimes trial, his heard that while
Finally, awaiting jury deficiency continued his with attempt reading by working his to overcome Program. counselor from the Mendocino Adult County Literacy C. Evidence in Rebuttal
To rebut the mother defendant wore a testimony of defendant’s cross childhood, throughout around his neck “off and on” the prosecutor Durfee and Ed- presented testimony Ukiah Police Officers Charles ward Gall. Durfee could not remember defendant had essentially whether been a cross when he him wearing contacted after crime. Gall just testified that wearing defendant was not a cross around his neck at the time of the arrest. Penalty
IV. Phase Issues A. Witt Contentions
The trial court excused for cause Louis Rinaldi and prospective jurors Anna Kytle. Defendant challenges these After rulings. reviewing voir witnesses, dire of these we find no prospective error. cause,
In whether deciding to excuse a for potential juror the trial court must determine “whether the juror’s views death penalty] [on would ‘prevent or substantially of his duties impair performance as ” juror accordance with his and his (Wainwright instructions oath.’ v. Witt 412, (1985) 841, 851-852, 844], 469 U.S. 424 105 L.Ed.2d S.Ct. fn. [83 omitted, 38, 581, Adams quoting (1980) v. Texas 45 448 U.S. L.Ed.2d [65 589-590, __ 2521]; 100 Morgan (1992) S.Ct. see also v. Illinois 504 U.S. 492, 502, 2222]; L.Ed.2d 112 People [119 S.Ct. Ghent 43 v. Cal.3d 739, 82, Cal.Rptr. 739 P.2d same standard [adopting for state 1250] constitutional On right].) appeal, we determine whether the trial court’s Ashmus, decision is supported by substantial (People evidence. 962; Cal.3d at p. People v. Hardy, supra, 129.) Cal.4th at “[I]f i.e., prospective juror’s responses are infer equivocal, capable multiple ences, or conflicting, the trial that juror’s court’s determination of state of mind is binding.” v. Cooper 809 [281 865]; accord, P.2d Payton (1992) 3 Cal.4th Cal.Rptr.2d
The record supports trial court’s of these jurors excusal for cause. Prospective juror Kytle repeatedly responded to questions during voir *68 I think means that don’t “That following: just with answers such as dire She also I could.” I believe just death don’t I for the penalty. could vote death.” to “Well, anybody to sentence right I I have the feel that stated: don’t of assessment with the trial court’s initially agreed Rinaldi juror Prospective life without the possibility vote for “automatically” he views that would his counsel, Rinaldi stated defense from Under strenuous questioning of parole. heinous,” there that, dire” or “so were “so if circumstances aggravating Rinaldi stated the death penalty. he vote for might was a “possibility” him dire, however, difficult” for “very that it would be throughout voir “[tjhat any if there is later again He stated the death penalty. vote for These that alternative.” I would take death for the individual alternative to decisions. the trial court’s supported like them amply and others responses 1063; supra, 53 People Cooper, v. p. 3 Cal.4th Payton, 809.) Cal.3d at p. Misconduct Alleged
B. Prosecutorial his determination of a reliable that he was denied argues Defendant during misconduct of prosecutorial a result of numerous instances as penalty of misconduct allegation each his trial. We review phase of penalty turn. Activity
1. Prior Criminal elicited on testimony in the admission of Defendant claims error summation during by prosecution and referred to cross-examination burglary, including juvenile criminal activity, defendant’s relating prior mother, He from school. drugs, suspensions of selling theft from that it violated evidence on the grounds the admission of such objects any scope did not fall within notice requirement, section 190.3’s section, was not supported under that factor aggravating evidence. the instances of misconduct did at trial to several of object
Defendant Thus, objections has waived his of which now complains. of Petra Lovelis (1) cross-examination following misconduct: purported cross-examination burglary; of defendant’s subject juvenile on school; (3) from defendant’s Wayne regarding periodic suspensions Daniels that defendant participated argument regarding possibility prosecutorial argument one of his brother’s burglaries; prosecutorial more than night on the burglaries defendant’s intent to commit automobile regarding 638.) Neverthe- 4 Cal.4th at People Noguera, supra, (E.g., crime. less, we defendant’s claims on the merits. also address
1027 in wit- In defendant numerous mitigation, his case presenting presented in his and his These good youth. nesses who testified to character reputation tried his impress testified defendant a hard worker who to witnesses that was classmates; elders; aggres- never trustworthy; siblings of his protective violent; a Boy good sive an excellent Scout and responsible; or physically student; Many expressed nice witnesses generally, good, person. that the have the which incredulity defendant could committed crimes for Overall, had of been convicted. defense case presented picture trustworthy, had risen childhood. peaceable person, deprived who above
The evidence which now was rebuttal about defendant complains proper (See in 1 mitigation. defense case v. Mitcham Cal.4th Mitcham]) 1072 In P.2d Cal.Rptr.2d 1277] [hereafter Mitcham, honest, the defense case an overall of an intelli “painted picture well-behaved, gent, and sociable with a violent or person incompatible circumstances, (Ibid.) antisocial character.” We that under such found of juvenile admission defendant’s misconduct and his entire court juvenile Mitcham, file proper (Ibid) was rebuttal evidence. As in the prosecutor’s theft, into of inquiry burglary, instances school drug selling suspension was warranted to rebut the evidence picture by painted in presented mitigation. rebuttal,
Because evidence was defendant’s claims challenged proper Mitcham, must fail. As we stated supra, Cal.4th at pages 1072-1073: “Rebuttal evidence not subject is to the notice of section 190.3 requirement and need not relate any specific factor under 190.3. aggravating section That the [Citation.] question evidence necessarily [evidence was] criminal activity (b), force involving or violence under factor felony or prior 190.3, (c) convictions under factor of section is therefore irrelevant. [Cita Furthermore, the juvenile tion.] misconduct did not result criminal convictions is irrelevant. similarly The rebuttal evidence was not necessarily offered to establish criminal on rather past activity defendant’s but part rebut defendant’s claim of good character. [Citation.]”
Finally, to the extent that defendant objects to numerous statements to his relating prior misconduct made on prosecutor ground record, these statements were not by the we supported reject his claims. Defendant waived his claims by failing to at trial object any these Further, statements. (E.g., People supra, v. Noguera, 638.) at p. Cal.4th our review of the record indicates that each of these statements had a sufficient Thomas, evidentiary (E.g., People 526.) basis. supra, Cal.4th at It for the jury to determine whether the inferences suggested by prosecutor Lewis, were logical. (People 283.) 50 Cal.3d at p.
2. Fight Knife impermissibly argued
Defendant next contends that the prosecutor brother, younger a and his fight that evidence to between defendant relating be siblings, knife one could by which involved the use a or both in lacks merit. aggravation.38 a Defendant’s claim considered as factor First, (E.g., at trial. object waived claim to by failing this 638.) 4 at People supra, v. Cal.4th Noguera, p.
Second, The inferences that could was proper. statement prosecutor’s be the knife could fight properly be drawn the testimony regarding from 190.3, (k), it was relevant to dispute considered under section factor since nonviolent, nonaggressive defendant’s that he was a evidence mitigating fights role was them.39 person, generally stop whose contentions, eviden- adequate there was an Finally, defendant’s despite basis that defendant stabbed tiary prosecutor’s argument to support true, he trial that it was not the brother Although during brother. claimed him. that defendant having admitted stated stabbed previously Sodomy 3. misconduct
Defendant contends that
committed
prosecutor
a factor in
did not
arguing sodomy
object
as
Defendant
aggravation.40
v.
(E.g., People
this issue waived.
statement
trial and
is
prosecutor’s
Nevertheless,
638.)
defendant’s
Noguera,
considering
Cal.4th at
supra,
merits,
claim on
we find
was a circum
sodomy
that the
possibility
no
stance of the
could be
charged
argued
aggravation
crimes that
“Now,
prosecutor’s argument
you
38The
of the
did hear about
portion
relevant
follows:
However,
fight
nonhearsay.
none of the evidence on
testimony
knife
and some of the
fight
may be
down
purpose
knife
was allowed in for this
and so that evidence
considered
factor,
factor,
get
good
or
you
get talking
when
K
and we
about the
character
sympathy
to the
bad character
But
allowed
factor B.”
of the defendant.
it’s not been
in under
fight
agreed
argue
the knife
constituted
prosecutor
39Because the
not to
that evidence of
190.3,
(b),
“criminal
section
we do
whether the evidence
activity” under
factor
not consider
569,
(1992)
ground
(See People
Tuilaepa
could have
admitted on that
also.
v.
4 Cal.4th
been
259,
1142];
Cal.3d
Cal.Rptr.2d
Lucky
587-588
842 P.2d
[15
290-291
1052],
den.
4. *71 Defendant next contends that committed misconduct prosecutor introducing evidence defend upon possibility of and commenting future dangerousness. ant’s Defendant’s lacks merit. argument First, object defendant’s claims are waived due his failure to either to line of during or his comments prosecutor’s questioning argument. Mattson, 638; Noguera, supra, Cal.4th at v. 4 People supra, v. p. 877.) Cal.3d at p. merits,
Considering defendant’s claims on we conclude that hinge they on a dubious factual neither asked about premise. prosecutor questions nor argued defendant in if dangerous would be the future sentenced to Rather, life without the possibility of asked parole. witnesses prosecutor Daniels, teacher, Cote, Wayne defendant’s special Kathryn education mental health worker in county who treated youth, defendant’s his family whether appellant signs of displayed Similarly, psychopathy. during closing argument, the prosecutor twice referred to evidence that fit the defendant assertions, diagnosis of a psychopath. Contrary defendant’s unsupported the word not “psychopath” does “future necessarily dangerousness.” connote
Moreover, the prosecutor’s cross-examination of the two witnesses was within the scope of permissible rebuttal. Both witnesses testified that defend- ant awas person who cared A for others. person suffering from psychopathy disorder, or antisocial personality both of which were diagnoses defense trial, had experts applied defendant at generally does exhibit this therefore, characteristic. prosecution, test permitted to the wit- Furthermore, contrary nesses’ on evaluations cross-examination. Cote had previously diagnosed “undersocialized, defendant as an exhibiting aggres- disorder, sive of, type” of conduct a diagnosis that can be a precursor as, shares many of same elements or antisocial psychopathy personality disorder. The prosecutor was entitled to this contradiction place before the jury. By so doing, the prosecutor did not violate any prohibitions on intro- ducing expert testimony on the in subject future dangerousness his case Mattson, (Cf. People supra, aggravation. v. 878.) Cal.3d p.
With respect the prosecutor’s argument, we find that the refer- brief to the ences word were “psychopath” part of a fair comment on evidence trial, including diagnoses person exhibiting received at as and the disorder or personality psychopathy characteristics of antisocial Furthermore, even if we defendant’s diagnoses. accept of those import on commentary that the statements constituted argument prosecutor’s future we have held that such comments do not dangerousness, repeatedly Thomas, 537; People supra, to misconduct. v. Cal.4th at (E.g., amount 963-964; Pinholster, People Cal.4th at v. Daniels pp. (1991) 52 Cal.3d 802 P.2d Cal.Rptr. 890 [277 Davenport 5. Error
Defendant that two argues passages prosecutor’s argument invited the evidence mitigating to consider absence of improperly jury (1985) 41 aggravation. (People Davenport Cal.3d 288-290 [221 (hereafter Davenport).) We disagree. 861] *72 Defendant did not at trial to of the statements that object any prosecutor’s he in now we have reviewed such the challenges. Although challenges objection Davenport absence of an when the trial occurred before decided, this trial does not come within this Because a exception. timely harm, objection. admonition would have cured defendant has waived his any 115, 679, (People Gallego v. 52 Cal.3d P.2d Cal.Rptr. 200 802 [276 169].) barrier, in
Notwithstanding this we discern no misconduct the procedural In challenged of the the first of passages prosecutor’s argument. passage which defendant in reviewed the factors set forth complains, prosecutor in section 190.3 connection with the evidence mitigating presented by factors, defendant. Commenting several upon prosecutor stated “defendant cannot claim from the mitigation mitigating factor.” potentially factors, Although noted the absence certain prosecutor mitigating of did not or expressly implicitly argue the absence of these factors could in be considered aggravation. These statements were well within the of range Bell, 502, proper prosecutorial argument. (People supra, v. Cal.3d 551- 49 552; 26, 209, People Dyer (1988) v. 83 753 P.2d Cal.Rptr. [246 1].) comments,
In the second passage of challenged using the prosecutor, factor of moral as an “I justification think that even example, briefly argued: where a factor can’t claimed mitigating be can see from the you something law, intent of the about the intent of the law it something the fact that lists by those as mitigating.” Again, never that the prosecutor suggested inappli- of this factor or cability any of other factors favor of death. weighed Rather, indicated that that the of this factor prosecutor argued absence of rather than more deserving leniency, deserving the defendant was less the rule set death. of this does not contravene forth Argument type (Cf. (1986) Davenport. Rodriguez Cal.3d 789-790 113].) 726 P.2d Cal.Rptr. infringed
Defendant also that his constitutional were argues rights failure of the trial on the of the terms jury meaning court instruct “aggravating” rejected We have this claim and “mitigating.” previously no for our provides persuasive reason us reconsider prior rulings. (E.g., People v. Malone Cal.3d 6. Lack Remorse
Defendant next contends that the prosecutor argued improperly lack defendant’s of remorse as a factor in aggravation that the prosecutor relied inadmissible upon hearsay argument. support
Defendant again did not object any challenged trial to prosecu- torial remarks. The Hardy, issue therefore is waived. 210.) Cal.4th at p. *73 merits, the
Considering on the issue we find error. The prosecutor’s no crime, references to defendant’s callousness after the as his demonstrated the drinking wine cooler and a the devising plan to crime order to report involvement, cover his up were permissible comment upon aspects of the 190.3, capital crime itself under (a). (People section factor v. Webster 411, 31, 54 Cal.3d 1273]; 814 P.2d v. Cal.Rptr. [285 Gonzalez P.2d Cal.Rptr. Defendant also complains of the prosecutor’s the comment that first part the of Statement Taped consisted of remarks by defendant about himself and his with troubles no consideration shown for the victim. We held have that such comments on defendant’s lack of remorse are proper. (People Wright (1990) 52 Cal.3d [prosecutor 221] permissibly argued that defendant’s confession showed no tape-recorded remorse].)
Finally, defendant renews argument his that the reference to Mendo- cino jail County used report to impeach testimony Raffle during Dr. guilt phase was improper. Defendant claims that resulted in prejudice penalty from phase the introduction of these statements and cites in support “a reread of his contention the deliberations for jury’s request during [szc] jail the end on 5-8-87 testimony day pertaining of the at portion Jail) (Mendo on 10-17-85 and remorsefiil statement County report [sz'c] Clark, (Raffle suicide of . . . attempted testimony) First, We defendant’s claim of error for several reasons. reject prejudicial Second, did at trial to the use of the object report. testimony did not refer to either the or to Dr. Raffle’s prosecutor report regarding during penalty phase arguments. report Furthermore, error, we even if we from the was reading report assume do not discern on the verdict. prejudicial impact penalty phase jury instructed the trial that defendant’s statements repeatedly throughout or considered were not to be considered for their truth. experts by experts testimony Defendant did not ask for a reiteration of this instruction when the was read to the to the was not question jury. testimony relating report and was a minuscule emphasized by during phase prosecutor penalty and effective Raffle. There was part lengthy cross-examination of Dr. other substantial evidence which the could have jury record from Furthermore, inferred that defendant lacked remorse for his crimes. the jury continued to deliberate for a substantial of time after period requested circumstances, was read. Under such we are satisfied testimony beyond reasonable doubt that the this report use of a from prosecutor’s phrase (See People Dr. Raffle did not affect the verdict. impeach penalty phase Bell, 534.) supra, 49 Cal.3d Religion
7. Defendant asserts in the error introduction of rebuttal prosecutor’s on the testimony subject of whether defendant was after the wearing cross crime or at the time of his arrest. Defendant contends that the prosecutor’s *74 conduct introduced lack in religion of as a factor and violated aggravation his First rights. Amendment Defendant’s lack merit. contentions
Defendant wore a cross direct every day of his trial. On examination the during his penalty phase, mother testified that wore a cross off appellant and on his throughout childhood. Defendant thus the subject introduced of at the and the religion penalty defense the phase testimony gave impression that defendant religious was a The person. was entitled to prosecutor present evidence to rebut the (See People mother’s and this inference. testimony v. 909, (1991) 166, Mason 52 950].) Cal.3d 961 The Cal.Rptr. fact that this related testimony to the the defendant’s First exercise of Amendment rights does not affect the admissibility testimony. (Cf. People v. Nicolaus (1991) Cal.Rptr. 54 Cal.3d 580-582 [286 P.2d 8. Characteristics the Victim of next the referred
Defendant contends that prosecutor impermissibly innocence, the age, vulnerability, to victim’s and absence from photograph his statements during argument. argues trial Defendant prosecutor’s (1) three not rights violated his for reasons: “victim information” is impact 190.3; (2) an under even if aggravating factor section such information was did receive permissible aggravation, defendant notice that the proper evidence; would rely on such prosecutor argument violated right defendant’s to reliable and individualized sentencing. Defendant did not at trial to the again object arguments objections challenged waived.(E.g., People Noguera, are 638.) In any v. Cal.4th p. event, we find arguments defendant’s without merit. be
First, the prosecutor’s references victim’s age, vulnerability and innocence related directly to circumstances of the crime. prosecu- tor’s invitation to the look at jury to the victim’s photograph the contents her suitcases merely drew attention to evidence that underscored the youth of the victim. age, vulnerability and innocence of the victim all served to support the inference that the victim did not consent to intercourse with defendant and all likelihood was no position resist brutal onslaught by that caused her death. The prosecutor’s observa- regarding tions the circumstances crime were (E.g., appropriate. People Wright, supra, 52 Cal.3d 435-436; People v. Carrera at pp. 121]; 336-337 P.2d see also Cox, supra, 53 Cal.3d at victim].) [photograph
Furthermore, there is no requirement the prosecutor give notice of evidence in aggravation that is related circumstances of the 190.3, (§ Moreover, crime. capital 4th par.) prosecutor’s argument did evidence; therefore, not constitute the notice requirement was inapplicable. Second, the prosecutor’s comments to the relating victim’s absence from *75 trial were also The appropriate. of the import prosecutor’s statements were to that, remind the jury defendant, while it may be natural to with sympathize because the sees him jury the every (and day, victim her inability to attend
1034 trial) when the is its decision.41 It is jury making should be remembered the victim urge jurors for the that the remember permissible prosecutor Cox, supra, and the life that have led. v. 53 Cal.3d at might (People p. she 687; Williams, Moreover, 967.) held People v. Cal.3d at we have is by permissible. that use of very quotation employed prosecutor 277-278, Rowland, 17.) v. at fn. supra, Cal.4th pp. defendant, in nothing argument unlike we see Finally, prosecutor’s a that violated defendant’s due Amendment Eighth rights process and individualized defendant relies sentencing. Although upon reliable _ (1991) 111 S.Ct. Payne Tennessee 501 U.S. L.Ed.2d 2597] [115 Payne the defendant’s are not argument, recognizes rights of his support evidence that the victim a infringed by argument showing unique or (Id. 735-736].) valuable human L.Ed.2d at being. pp._-_[115 pp. 9. Caldwell Error
Defendant next contends that a
of the
rebuttal
portion
prosecutor’s
argument
suggested,
violation of the rules set out Caldwell
improperly
(1985)
Mississippi
The of the challenged portion argument stated: prosecutor’s “There was a statement that will have live with verdict you your for ' this, rest of life. Mr. did your Brown but that could be as say interpreted challenged portion prosecutor’s 41The argument begins prosecutor reading with the from a book: “ immediate person ‘When one kills another there’s revulsion at the nature of the crime. [,nc] But in a time personal family so short as to seem indecent to the members of the the dead person ceases figure. good to exist as an identifiable To community those individuals in the of and empathy, compassion, will warmth and only key one of the actors in the drama remains with always whom to commiserate and that is person the criminal. The dead ceases to be a part every day reality, only figure inevitably ceases to exist. She is We in historic event. criminal, away turn past from the toward ongoing reality, ongoing reality and the is isolated, trapped, helpless, anxious now badgered usurps often and bewildered. He compassion justly that is along victim’s due. He will steal his constituency victim’s moral ” with her life.’ 238, 277-278, As noted in v. Rowland Cal.Rptr.2d Cal.4th footnote 17 [14 897], Garland,” this quotation Killing is from “The Bonnie Dr. Willard Gatland. prosecutor continued: point reading “The any that is not any point criticize—not system. criticism of our arises because the gone victim is and the Defendant is here.” *76 that do not vote the that the suggestion penalty prosecutor suggests a for are to the of life. you your because have that on conscience rest going your Well, I, true, I’d of my job. this: If that were that would also be true suggest all, a death our own penalty as after am the after prosecutor, seeking case, I a of what I do. not feel that consideration this that is decided to do law, verdict that is correct under the that’s correct under these a decision the guidelines, is one that will rest conscience of legal adversely upon juror, prosecutor. crime,
“If the if what he did Rosie Grover is enough, aggravated to is bad the the enough under factors that the to then law that judge gave you, it’s you that And I suggests may impose the death that that is penalty. suggest with you being consistent moral And it is representatives community. of the not that the something responsibility prosecutor becomes of the individual or juror, the individual rather the responsibility of the law and of the man who the did crime.”
The Attorney argues General has objec waived his to tion this portion prosecutor’s argument by failing object at trial. disagree. We “We have never required objection an to raise claims error based upon Caldwell v. Mississippi[, supra, All U.S. . . .” . 320] Bittaker P.2d claim,
Turning to the merits of we no defendant’s find reasonable likelihood that the jurors were misled regarding their for responsibility determining the appropriate the penalty. informed prosecutor explicitly “may that it jury the death impose” penalty. The used the language prosecutor conveyed to jury that of the death appropriateness penalty within the jury’s discretion. Thus, the in prosecutor’s argument this case be analogized cannot Milner, extreme in argument 254-256, 45 Cal.3d at in pages which the prosecutor urged jury to under veil of the law.” The “hid[e] improper content of the prosecutor’s argument that case is illustrated by “ ‘[Sjometimes following excerpt: argued it’s ... order to inflame you, impose upon you, the ultimate responsibility, responsibility, each saying client; of you one is kill going to my have kill you my to vote to are, client. not That’s factors, issue. You as jurors, to these apply that’s your facts, All duty. ... juries same facing set of would come with up decision, law, the same law, and this hiding under the veil will protect you from decision, shouldering weight your if you step because that, outside of you are definitely shouldering the responsibility.’ pros- ecutor again told the jury consider the factors and ‘make the verdict
1036 ’’ 255-256, (Id. feel is or italics you individually just right.’ pp. in original.)
omissions Instead, in to the one we the this case is similar prosecutor’s argument 173, 1 People (1991) reviewed in v. Fierro Cal.4th 245-248 Cal.Rptr.2d 426, 1302], in P.2d In the course of no finding prosecutor’s 821 error case, in “In ‘feel we wrote: not to argument admonishing jurors or guilty’ ‘personally responsible,’ prosecutor merely suggesting, albeit that the blame for the and their inartfully, consequences moral crimes defendant, rests with not with the there was no that the jurors; suggestion in jurors tally aggravation law to factors simply required competing mitigation, assign weight rather than to consider and moral individually (Id. 247.) in the argument to evidence.” at p. prosecutor’s present conveyed meaning. case this same We no error. acceptable perceive Impact
10. Cumulative Misconduct We have found the extent no instances of misconduct. To prosecutorial that the of the jail use Mendocino to cross-examine Dr. Raffle County report error, we may have been have found no therefrom. For prejudice resulting reasons, these we do not address defendant’s arguments premised upon cumulative, errors. prejudicial impact alleged phase penalty
C. Allocution
Defendant next contends that his constitutional of due rights pro cess were violated the trial equal protection ruling denying court’s in request jury to address allocution We during penalty phase. reject defendant’s claims.
This court has held that a repeatedly defendant has no capital right Nicolaus, in address penalty phase jury allocution. 583;
Cal.3d at v. Keenan Cal.3d Cal.Rptr. 1081]; People 758 P.2d Robbins Cal.3d 888-890 [248 Defendant no for presents persuasive reason this court to reconsider its prior rulings. (9th recent decision of the Ninth Circuit Boardman v. Cir. Estelle
1992)
D. Penalty Automatic for Modification of Defendant asserts that the trial did not discharge court its properly duty ruling on his automatic motion for modification of the verdict. 190.4, (§ (e).) subd. (1) Defendant that: the argued contends prosecutor factors in improper aggravation; the relied im upon trial court these factors; and proper the trial court considered a improperly probation We report. reject each of defendant’s claims. misconduct, however,
Defendant’s claims of prosecutorial are essentially a rehash of his rejected previously the complaints prosecutor’s argu- about ment to the We jury. need not again address the reasons the why prosecu- tor’s references the knife the fight, the defendant possibility participated in more than one of his brother’s the burglaries, of the callousness immediately following the crime and the of sodomy do not rise to possibility the level of misconduct.
Furthermore, defendant’s complaints the regarding prosecutor’s specifica- tion of five of the aspects crime that rendered it are particularly aggravated meritless. The prosecutor listed these aspects as “The follows: first aspect is the innocence and vulnerability of the 15 old victim. The year second aspect is Defendant’s admission that weighed the and advantages disadvan- tages of killing before doing killing. The third is meanness of the sex crime. The fourth is the brutality killing itself. And fifth is the Defendant’s callousness toward the victim and the crime immediately after- ward.” Each of these of the crime aspects and consid- properly argued ered by 190.3, court (a). pursuant section factor
Defendant also contends that the court considered the circum- improperly stances crime (b) under (c) factors of section 190.3. We have find for defendant’s claim. court support
reviewed the record and no and violence and prior felony found the absence of force properly prior (b) (c) In the of this mitigating. rendered factors course convictions discussion, associ- the court reiterated its belief that the force violence (a). under factor ated with the crime itself was an factor aggravating influenced Defendant further contends that the trial court was improperly sodomy. only to the by prosecutor’s argument relating possibility testimony recitation mention the court of this issue is found its the crime. The trial of Dr. evidence of Boyd Stephens regarding physical evidence and Dr. correctly Stephens’s opin- court summarized physical *79 that the evidence inconclusive. This brief relating ion to anal intercourse was not indicate that the by sodomy reference the court to the issue of does rather, court’s influenced the trial court’s by decision was this possibility; testimony comments reveal that it the nature of the understood inconclusive on this Even if reference the evidence could be issue. this brief to physical influence, deemed we find no to show some minuscule amount of improper (See reasonable that the error affected the trial court’s decision. possibility 24, People v. 831 P.2d Cal.Rptr.2d Fauber Cal.4th 867 [9 Defendant next contends that the trial took an narrow impermissibly court 190.3, (k), view of referred to the fact only section factor because the court “that the in defendant was non-violent its discussion of factor. person” assertion, to defendant’s the record reveals that the trial court Contrary all the Under these carefully considered of evidence both sides. presented by circumstances, we find a observation to the case at hand: previous applicable “Although the trial court did evidence expressly mitigating mention the defendant, referred to there is no indication . . that the or by ignored . court overlooked such evidence.” (People v. Cal.3d 625 Ruiz 854], in italics original.) Finally, contends that the trial court erred the by considering probation before it ruled on motion under The report section 190.4. that, record establishes that the court did review the but agreed report, during the section 190.4 certain of the the proceedings, portions report, including offense, kin, of the the summary statements of next of and the case evaluation, would not be considered counsel.42 pursuant stipulation by Lewis,
In considering supra, the court erred. report, (E.g., People v. 287.) Cal.3d at “But even when the trial considered p. court has error, 42Because we find no prejudicial stipulation we do not address whether the of counsel right remaining was in effect a waiver of defendant’s report exclude the sections of the Gonzalez, supra, (See 1238.) from consideration. there in we assume ruling application, such information on the extraneous court, evidence to the has influence on absent improper specific been no Fauber, 866.) Cal.4th at contrary. [Citations.]” review that the trial record this case demonstrates court’s Other to the than report resulted no defendant. probation prejudice that were not excluded portions report by stipulation to note that the of the considered, had been made no reference to the its report court express written the man decision. decision reflects the court’s with familiarity 190.4, (e) date of based upon section subdivision that its determination be the evidence and guided and circumstances aggravating mitigating referred into The court each aggra section. reviewed potential vating and mitigating gave upon factors detailed reasons based evidence trial for the nature presented during determining weight review, attributable each factor. our is clear that court relied From it trial upon the evidence submitted trial reach great its conclusion placed weight upon find no for reversal. circumstances crime. We reason
E. Proportionality Review
Defendant argues that his sentence is unconstitutionally dispropor tionate both in comparison those of similar and in convicted offenses relation own to his We find no merit claims. culpability. defendant’s “ observed,
As we have previously re proportionality ‘[i]ntercase’ view is [citation], not the federal required by we have Constitution and declined to it consistently Mincey (1992) undertake v. 2 [citations].” 408, 822, Cal.4th 476 388].) Cal.Rptr.2d [6 Defendant no provides reason for to depart us from prior our holdings. held, however,
We have that the of the death sentence is imposition subject to “intracase” review to determine whether is penalty dispropor tionate to a defendant’s personal People Mincey, culpability. (E.g., v.
2 Cal.4th 476.) at p. Relying v. 34 upon Dillon Cal.3d 697], 479-482 P.2d Cal.Rptr. 668 defendant claims that his lack youth, of adult prior and of mind criminality, drug-induced state at the time of crime renders the death sentence disproportionate his crimes.
Our review of the facts convinces us that the death not is penalty dispro- portionate then, to defendant’s true Defendant culpability. to avoid raped being crime, to the reported his police for and bludgeoned stabbed to death attack, 15-year-old defenseless After the girl. he took with him one of the He a story,
victim’s wine coolers and to drink it. formulated proceeded included the victim’s that stuck “finding” body, which reporting with until after his arrest. trial, all the properly factors
During jury fully apprised for, deserved, the death whether defendant was bearing eligible upon criminality the defendant’s relative lack of adult penalty, including youth, mind at the time in the decisions “[Njothing prior state of crime. court, courts, of this or of the federal that his is suggests punishment ‘the to ‘the offense’ or offender.’ constitutionally disproportionate [Cita (People v. Adcox tion.]”
P.2d
F. Miscellaneous Claims claims, these
Conceding rejected this court has previously issues, raises 13 them for future summarily apparently preserve litigation. Defendant has not us reconsider- convinced of these issues any require We, therefore, ation. list below our of defendant’s contentions disposition followed by dispositive authority.
1. The trial did err sentencing court to delete by failing inapplicable 919.) People Raley, supra, factors. Cal.4th at (E.g., p.
2. The trial court did not err to instruct the by failing jury regarding which section 190.3 factors are and which are aggravating mitigating. (E.g., People Raley, supra, 919.) Cal.4th
3. The trial court did err it must failing not to instruct the by jury find a reasonable beyond (E.g., doubt that death is the appropriate penalty. 907, 269, People (1990) v. Marshall 50 Cal.3d 935-936 790 Cal.Rptr. [269 676].) P.2d
4. The trial did court not err to instruct the that it must by failing jury find a beyond reasonable doubt that aggravation outweighed mitigation. 2 (E.g., People Raley, supra, 919-920.) v. Cal.4th at pp.
5. The 1978 death penalty statute is not unconstitutional because it fails (a) (b) written require: a findings; proof beyond reasonable doubt of factors; factors; (c) aggravating jury (d) on a unanimity aggravating finding that aggravating factors a outweigh mitigating beyond factors reasonable doubt; (e) a that death finding is appropriate punishment beyond doubt; (f) reasonable and a procedure to evaluation of the permit meaningful 595.) sentencer’s discretion. 4 (E.g., People Tuilaepa, supra, v. Cal.4th at p.
1041 The court not err that the failing jury 6. trial did to instruct the by defendant will never be sentence life without means parole 1223, (1990) People considered for v. Gordon 50 Cal.3d (E.g., parole. 451, 251].) 1277-1278 Cal.Rptr. [270 The 7. trial court did not err instruct the failing jury consider by factors, all affirmatively sympathetic mitigating mercy nonstatutory 681; Cox, Caro, supra, People supra, v. 53 v. mitigation. Cal.3d at p. 1067.) 46 at Cal.3d due 8. Defendant’s were violated the use process rights not to; (a) on
rape charge defendant for a murder qualify degree charge first (b) sec- felony-murder theory; defendant for death under qualify eligibility 190.2, (a)(17); (c) tion subdivision enhance favor of aggravation 190.3, Marshall, under (a). death section factor 50 (E.g., People supra, v. at 945-946.) Cal.3d pp.
9. trial err court did not by failing to instruct that the “no sympathy” 1.00, instruction embodied CALJIC No. at the did not given guilt phase, Adcox, at the apply penalty People phase. (E.g., supra, v. 47 Cal.3d at p. 265.)
10. The trial court’s instruction on “extreme” mental disturbance did not violate defendant’s right to have the jury consider all mitigating factors. People (E.g., v. Clark 3 Cal.4th 163 833 Cal.Rptr.2d 561].) P.2d
11. death did penalty statute deprive defendant of benefit of the Determinative Act in Sentencing violation due process Marshall, equal 945-946; protection. (E.g., People at supra, Cal.3d pp. Williams P.2d
12. The trial court did not err by failing to instruct the jury that lack of mitigation Ashmus, does not aggravation. (Cf. constitute People v.
Cal.3d pp. 1004-1005.) *82 13. 1978 death statute is penalty not unconstitutionally vague by 190.3, in instructing jury terms of (a) (circumstances section factor crime) 190.3, capital and (i) section factor (defendant’s age at time of crime), without further clarification. These unadorned factors do pre- clude and meaningful guided distinctions between those murders that war- rant the death penalty and those that do Tuilaepa, not.
Cal.4th at pp. 594-595.)
V. Disposition in judgment is affirmed its entirety. Lucas, J., Kennard, J., Arabian, J., Baxter, J., J., C. and George, concurred.
MOSK, I dissent. J.
Defendant had a under right the Sixth Amendment to the United States Constitution to assistance of counsel who is not burdened a conflict of sure, interests. The was violated. right To be the violation appears without bad faith. But it appears nonetheless. Reversal is required.
I This in notorious case Mendocino As the Mendocino County. County Court stated in Superior defendant’s granting change motion for venue: 19, 1985,
“On July Daily Ukiah young Journal that a wom- reported Ukiah, an’s body had been discovered in in a creek bed that she appeared death, beaten to and that in defendant had been taken for questioning. Grover, 15, “Later stories: Identified the victim as Rosie Ukiah lifelong resident, drifter; and identified the defendant as a old year reported screwdriver, the victim was in strangled, stabbed the back with a and bludgeoned beyond recognition with a length of encrusted with con- pipe crete; $250,000, that the in reported defendant was with custody bail set at had been on a arraigned charge of murder and had Not pleaded Guilty, that the magistrate had ordered the and the defense prosecution not to discuss the case with the press; that other inmates at the reported Ukiah, murderer, County Jail another including accused had [capital] that, started a aid collection to the victim’s as a result of family. appears [It inmates, defendants, threats by other including capital defendant was moved for his own protection from the jail’s maximum security section first to its unit, cell, protective custody then to an isolation finally to State Quentin.] Prison at San
“On . July . . it was reported that close to 300 friends and family mourned at the victim’s funeral before she was buried the cemetery across the street from the high school where she would have been a sophomore September. *83 had
“On amended the Attorney it was that the District August reported murder, to a death and charge allege to add a complaint rape penalty the given that the defendant had a confession to police. examination,
“On based it was August on defendant’s preliminary that had the California Patrol about Highway the victim reported phoned home, a 4:30 the and had short ride morning A.M. she was killed requested In in the every which was the same it was bone story, reported refused. blows, been nine victim’s face that she had stabbed by up was broken times, and that there was evidence that she was physical raped.
“The next the call the CHP day, story the Journal ran a about victim’s sidebar, In the CHP’s policy refusing transportation. transcript ,[1] call phone was . . . printed filed and the “Subsequent reported stories claims the CHP Ukiah against by Police Department victim’s parents. ended,
“The after day the defendant’s preliminary examination Journal reported detective’s made a testimony that defendant had detailed confession, in which he admitted that he had killed the victim to her prevent from him falsely accusing of rape. Journal,
“Although the heaviest press coverage Daily The Ukiah other in the papers circulating News and county, including The Willits . . .
1“CHP: Highway patrol. “RG: Yes. I get wanted to know if somebody way could come me because I don’t have a and just got home I off bus. “CHP: We don’t provide transport you go? at all. do Where have to just “RG: I get have to down the ways street a little and I don’t want to walk myself because Pm really afraid. “CHP: you Greyhound Are at the bus depot? No, walked, “RG: because ways by I I walked some Foster Freeze. “CHP: OK. You call the police department. they provide should I don’t transport, know if doesn’t, highway patrol not in city anyway. limits Well, “RG: Oh. supposed get how am I home? Well, why you “CHP: waiting don’t have somebody you for there? Well, “RG: (garbled) because said just something. she call the cab They or don’t run this late, (garbled) figure didn’t we’d be this late. Well, you’re “CHP: going try to have to police department because we don’t transport units, any police agencies most transport anybody try can’t units. So police in their department. police “RG: The department? get OK. into though Will I trouble even for curfew it’s not my fault? trouble, “CHP: I don’t your know. It would be parents you. get would Oh, “RG: yeah, you. OK. Thank “CHP: OK. Good-by.” *84 Democrat, Press Santa Rosa also ran stories. There was also extensive radio. coverage Early killing on local news radio stories were about and the court defendant’s Later has appearances. coverage emphasized victim’s to the phone provide call CHP and CHP’s refusal to transpor- tation, and included in has editorial comment the local and on the paper A radio. of letters have in the number to editor been local published paper. November, District,
“In the Assemblyman for the Second which Assembly includes each in County, Mendocino mailed voter the district a letter decry- this ing case and for his which requesting legislation would instruct support the CHP to offer rides to call believing citizens who for are in help they danger.”
II The law that to the disclosed applies by facts the record is as follows. “Under ... the Sixth Amendment to the United States Constitution as applied to the states due through the clause of the Fourteenth process , a Amendment. . . a criminal right case has assist ance of counsel. constitutional the defendant guaranty ‘entitles not to [CJ[] ” some bare assistance but rather (People assistance.’ v. Bonin effective 460], 47 Cal.3d P.2d italics original.) right is ‘fundamental’ and ‘is among “[T]his those [citation] “constitutional so basic trial rights to a fair that their infraction can never be ’ ” (Id. 834.) treated as harmless error.” p.at “Included in right to the effective assistance of counsel is ‘a correla- ” tive right that is free from representation conflicts of interest.’ Bonin, supra, 834.) “Conflicts broadly of interest embrace all to, of, an situations which or behalf attorney’s loyalty efforts on a client are threatened by responsibilities to another a third client or or person (Id. his own 835.) interests.” at p.
“In order to safeguard criminal defendant’s constitutional right to assistance of conflict-free counsel thereby criminal keep proceedings untainted by conflicted the United representation, States Court Supreme has laid down certain essentially rules in prophylactic this area. knows, know,
“When the trial court or reasonably should the possibility of a counsel, conflict of interest on the part of defense is required it make inquiry learns, into the matter. It is the court [Citations.] immaterial how or notice, is put on possible conflict.... *85 in act also to but to merely inquire is obligated
“The trial court
it must
duty,
In
its
discharging
discovers.
...
what its inquiry
response
‘
dealt with
as the offenses
in
increasing
degree
. with a caution
act
.
’ ”
836-837.)
Bonin,
Cal.3d at pp.
supra,
v.
(People
in gravity.”
increase
into the
inquire
fails to
the trial court
of its duty
“When
violation
act
response
fails to adequately
of interest or
of a conflict
possibility
[(1981)]
discovers,
Georgia
v.
under Wood
error
it commits
what its inquiry
“To obtain that he must show But prejudice. [Citation.] outcome-determinative specific, affected adversely conflict and that that of interest existed an actual conflict 837-838.) Bonin, at pp. (People performance.” counsel’s former, actively represented that “his counsel must establish As to 335, U.S. (1980) 446 (Cuyler v. Sullivan interests . . . .” conflicting latter, 333, 347, demonstrate he must 1708].) As to the 100 S.Ct. L.Ed.2d i.e., defendant as failed to represent his punches,’ that “counsel ‘pulled Easley had there been no conflict.” as he have vigorously might Cal.3d Ill Did the Mendocino is this:
I The first question now turn to case bar. is affirmative. The answer commit Wood error? County Superior Court on, aof conflict came to know of the possibility court Early superior At on arraignment Susan Massini. interest on the of defense counsel part Massini, 6, 1985, Defender then the Public it who was September appointed would Until June she as defense counsel. County, of Mendocino Allen, was later with D. who represent (together Joseph personally matters, her) including suppression important assist several appointed venue, filed on which was In defendant’s for change motion. motion 30,1985, running be Attorney the “District . . . will October she stated that that cryptically “present re-election in the June added primary”—and for In be contested.” hotly indications are that the race for District will Attorney 20, 1985, court noted superior the motion on December granting weeks has been and radio two during past newspaper publicity “[l]ocal defendant’s two attor- that one of topics including “probability about” Massini, By . . . .” against Attorney “will run the District neys,” namely, date, manifest: Massini of interest was conflict possibility defender; time, her had expressed at the same she remained defendant’s make required court was prosecutor. superior desire to become his 3, 1986, inquiry into matter. It failed to do so. On June Massini was elected District Attorney. Finally, on July District Office Attorney’s was recused. Subsequently, transfer of the case was effected to the Santa Clara County Superior Court. too, second is question this: Is the Wood error reversible? Here
answer is affirmative.
Defendant has shown an actual conflict of interest burdening counsel. Massini actively represented his interest avoiding conviction or at a least alia, sentence of death inter by, making and opposing various motions. At time, the same she actively her represented own interest District becoming Attorney by for the campaigning position. These interests were conflicting. Indeed, it would strain credulity to claim otherwise. If Massini presented defendant, vigorous defense on behalf of who was even unpopular among defendants, other capital she would run a strong risk of becoming unpopular herself.
Defendant has also shown an adverse effect on counsel’s performance. In above, motion suppression mentioned Massini to exclude sought evidence, certain highly inculpatory including of blood drawn from sample defendant without a warrant at the direction of Detectives Fred and Kelley Ed Gall of the Ukiah Police Department. She was unsuccessful.
It is and long- well-settled that the prosecution bears the burden of that a proving warrantless search or seizure is nonetheless reasonable under the Fourth Amendment. (E.g., Superior (1956) Badillo v. Court 269, 272 23].) P.2d It is [294 settled that the similarly of blood drawing without a warrant is if reasonable only both supported by cause and probable exigent (See, circumstances. e.g., Schmerber v. 384 U.S. California 908, 917-921, 766-772 L.Ed.2d 86 S.Ct.
At an motion, evidentiary hearing on the suppression Detective all Kelley but expressly admitted that there was neither probable cause nor exigent circumstances. He testified that defendant’s blood was drawn to a pursuant “basic for policy all felonies” for blood typing” “[Routine “[d]rug scans.”
Inexplicably, even after this testimony Massini did not attack the action of Detectives Kelley Gall as based on solely the Ukiah Police Department’s underlying On “policy.” this crucial point, she her She “pulled punches.” attempt mere failure to evidence.2 inadmissible unarguably failed to bar default a sufficient found has been evidence” inadmissible “arguably bar Sullivan, 446 U.S. at (Cuyler purposes. for present course, no failure, way There is grievous. is more 347].) Her L.Ed.2d at p. from away shying than as a other her omission reasonably explain if were she closely would work which she an with organization criticism of to assume “hesitant should be we attorney. Perhaps elected district decisions interest where [her] the allure of [personal] succumbed to counsel Israel, (2 & LaFave for defendant.” best tactically be as justified could also is “decision” 93.) Massini’s 11.9(d), p. § Criminal Procedure not. concerned, no benefit promised her omission defendant is such. So far as threatened cost. only in good other than acted evidence that Massini
It true that there is no is faith, however, Similarly, is not required. faith. of bad presence *87 material. absence of faith is not bad
IV the Amendment right defendant’s Sixth that my Because of conclusion violated, further. I need not proceed conflict-free counsel was assistance of issue, however, One deserves comment. additional instance, whether, pro- defense counsel a certain arises question Sixth Amendment. vided ineffective assistance under the Court, W. Allen and Ronald In D. County Joseph the Santa Clara Superior Brown, filed a motion in limine were defendant’s attorneys, who then May- Peter Glen and called They exclude various confessions admissions. land, M.D., that his believed hearing. They a at the testify psychiatrist, But there considered. be on the testimony helpful questions would possibly on the be detrimental necessarily knew that that would they testimony same Nevertheless, him the witness stand on they guilt put issues of penalty. discovery.” theory of “inevitable majority inadmissibility through the attempt 2The to avoid or by People either the theory be at the was not raised
It should observed the outset view, may discovery” my “inevitable superior the court or this court. In defendant either motion on attacking defending ruling suppression a on a properly be invoked. In or the they presented regarding go beyond arguments appeal, parties are not allowed to the 585, 511 (Lorenzana (1973) Cal.3d 640 Superior motion below. Court [108 noted, court. theory superior in the 33].) As neither the nor defendant raised P.2d may we do what persuaded that They would not be to raise it in this court. I am not permitted event, What would have discovery” simply does not work. they may any not. In “inevitable warrant, a but defendant without “inevitably is not the blood drawn from been discovered” ways by process of metabolization. sample blood different from that in various reason effectively point. majority concede the without an order at trial of whatever obtaining barring introduction he at the testimony might give hearing. Dr. testified Subsequently, Mayland to statements with including following: defendant his encounter demanded, Rosie Grover he was “mean he show acting”; “Why you don’t tit, bitch”; ordered, me some “Suck dick.” At neither the nor my guilt phase of trial was of these admitted But penalty any statements for its truth. at them phases, both used all of prosecutor repeatedly emphatically though they as had been. Amendment,
To establish assistance ineffective of counsel under Sixth must show deficient under an performance objective standard (Strickland Washington (1984) reasonableness. professional 466 U.S. 674, 693-694, 687-688 L.Ed.2d He show [80 S.Ct. must also under a test of reasonable of an prejudice adverse effect on probability (Id. 695-697].) at A outcome. 691-694 at pp. pp. L.Ed.2d [80 “reasonable is not a probability” “more probability failing likely than not altered the at (id. outcome the case” at L.Ed.2d p. p. 697]), but in the simply sufficient undermine confidence “probability (id. 697-698]). outcome” at L.Ed.2d at pp. case,
In this defendant has shown It was profes- deficient performance. sionally unreasonable for defense counsel Dr. Mayland hearing to call without an order at trial obtaining barring introduction of whatever *88 he Allen testimony might give. that the was subsequently failing admitted That is the the “inexcusably sloppy.” most charitable characterization of omission.
Defendant has also prejudice. shown there Whether is a reasonable an adverse effect on probability of the guilt outcome is close is at least phase question. arguable It that guilt verdicts and its jury’s special circumstance other were not findings by tainted defense counsel’s The of the failing. guilt focus were phase charges various did allegations. Defendant’s statements Dr. Mayland bear as not on the elements of the on heavily offenses enhancements as own character. The evidence was inculpatory very strong, and Moreover, evidence exculpatory was weak. very court admon- superior jurors they ished that could not their consider defendant’s statements for truth. contrast,
By it is a close whether there is a reasonable question of an probability adverse effect on It penalty phase. outcome that the verdict appears jury’s of death in fact tainted defense was undermined. result is Certainly, confidence failing. counsel’s Defend- character. defendant’s part was large penalty phase focus of the The aggravating on that issue. heavily bore Mayland to Dr. ant’s statements solely evidence, relating evidence limited guilt-phase which was itself, mitigating was the But too substantial was indeed substantial. crime evidence, superior of defendant. picture which painted sympathetic defendant’s consider could not they that jurors did not admonish court the jurors reasonably presume their truth. We cannot statements for the guilt had delivered at that the court the admonition applied would have Indeed, A juror reasonable the opposite. we should rather presume phase. assessment to make a moral obligated he was have believed since would at least or required he was determining penalty, defendant’s character statements, which through defendant’s entitled to take into account his character for all to see. displayed
V above, Sixth that defendant’s I am of the view For the reasons stated counsel was violated. of conflict-free Amendment to the assistance right I judgment. would reverse the Accordingly, Mosk, denied October 1993. rehearing for a
Appellant’s petition J., granted. was of the that the should be opinion petition