*1 6,May S004687. 24552. Crim. No. [No. 1991.] PEOPLE,
THE Plaintiff and Respondent, COOPER,
KEVIN Defendant and Appellant.
Counsel Cutler, Court, Mark E. under for Defendant appointment Supreme and Appellant. General,
John K. Van Attorneys de and Daniel E. Kamp Lungren, Steve White, General, Chief Attorney Mayfield, Assistant D. Harley Assistant General, Millar, Jr., W. Attorney John Carney and Frederick R. Deputy General, Attorneys for Plaintiff and Respondent. Reiner,
Ira Attorney District (Los Angeles), Harry B. Sondheim and Ferreira, Brentford J. Deputy Attorneys, District as Curiae Amici on behalf of Plaintiff and Respondent.
Opinion *21 case, ARABIAN,J. law, of —This out the 1978 arising death chron- penalty mother, icles father, the nocturnal massacre of a and daughter, houseguest home, in the their sanctity of son, and the of attempted murder the young the only to survive. A person jury convicted Kevin defendant of Cooper Code, four counts of first degree murder (Pen. and one count 187),1 of § murder with the attempted intentional infliction bodily of great injury (§§ 664/187, It found true 12022.7). the special circumstance mur- multiple 190.2, der. (§ subd. (a)(3).) Defendant had previously to pleaded guilty one count of from a state escape (§ subd. After prison. the (b).) penalty the phase, jury the imposed death The trial court denied the penalty. auto- matic 190.4, motion modify to the verdict (§ subd. and (e)), entered a judgment of death. This is automatic. appeal (§ We affirm. 1239.) statutory All further references are to Penal the Code unless otherwise indicated.
I. Facts
A. Guilt Phase Douglas death hacking (Doug) convicted defendant to Jessica, house- 11-year-old and an Ryen, 10-year-old daughter their Peggy Califor- inside home near the (Chris), Ryen the Hughes guest, Christopher Joshua in Chino. Eight-year-old nia Institute for Men a state (CIM), prison this Two before days survived. Ryen (Josh), although severely injured, innocent, had from CIM. escaped execution the defendant 1. Prosecution Evidence
a. The Crime 4, 1983,2 attended a Ryens Hughes June the and Chris Saturday, On Serranos, a few from the Blade in Los miles barbecue the home George with night home in Chino. Chris had received the Ryen permission spend left drive to they and 9:30 the Blade residence to Ryens. Between 9 p.m., Josh, never seen alive Ryen they again. home. for were Except mother, con- June became Mary Hughes, The next Chris’s morning, A calls to the when he did not come home. number of telephone cerned a.m., went only Shortly Mary received after 9 Ryen busy signals. residence husband, return, Ryen Hughes, On her she told her William home. there.” because “everything quiet up that something appeared wrong home Mary, Ryen failed to William went After second reassure trip to investigate. home, Ryen family
William truck at the but not the station observed they did Ryens normally not lock house when wagon. Although home, William it was locked on this occasion. walked around were leading inside. When he reached the doors trying sliding glass house to look bedroom, his he see inside. William saw the bodies of to the master could floor. Josh was lying son and bedroom Doug Peggy Ryen and Chris. Josh alive. Only appeared between Peggy state, door; in his William tried emotional frantically to open sliding *22 doors, He fixed of the not the door. sliding he the pushed against portion door, in, and As he the rushed to the kitchen kicked it entered. approached bedroom, floor, In the he found on the also dead. apparently master Jessica bedroom, It was cold and stiff. body William touched the his son. year All the unless indicated. further dates refer to otherwise stunned; talk William asked done it. Josh he tried to Josh who had appeared could only unintelligible but make sounds. but He
William tried use in the it did not work. telephone a house a shortly. Doug, drove to The arrived neighbor’s seeking house help. police bedroom, Chris, dead, in were the first three the master Jessica Peggy, shock, in the alive in hallway leading Jessica that bedroom. Josh was but from an suffering by obvious neck wound. He was flown to Loma helicopter University Linda Hospital.
The victims died from numerous injuries. Doug chopping stabbing wounds, 32, 46, Ryen had least 37 Jessica 25. and Chris separate Peggy a chopping by heavy object wounds were inflicted a such as sharp, axe, hatchet or stabbing by the wounds a such as a knife. Jessica weapon wounds, also had some chest inflicted after death probably by pointed instrument such as an ice Josh had injuries, fewer wounds pick. including by the head possibly caused hatchet and a wound in the Dr. stab throat. Root, Irving who performed injuries believed the could have autopsies, been inflicted within one minute for of the All quickly, each victims. victims had a stomach, moderate amount of food in indicating death probably occurred about one to three after they hours had last. eaten
b. Evidence Guilt of Defendant’s Various items of circumstantial evidence connected defendant with the massacre.
Defendant had been an inmate at CIM since April under the name of 1, David Trautman. On June he was to a transferred minimum security afternoon, of the portion The next prison. he June foot. escaped on evidence, Undisputed including showed that after fingerprints, his escape, defendant took nearby in a refuge by house owned Larry Lease and broth- ers Roger and Lang (hereafter Kermit house). Lease He in slept of the closet bedroom nearest garage. The Lease house was the closest house, to the neighbor Ryen about 126 yards away. The window Lease house a view fireplace provided Ryen of the house. Bilbia, Lease,
Kathleen an had employee living been house Lease May, and she had used bedroom later defendant slept (hereafter the Bilbia moved out bedroom). She during May. house By May of her most had been May removed. On belongings and June Bilbia house, vacuumed and cleaned portions including the bathroom she had used (hereafter the Bilbia bathroom). *23 from the calls were made telephone showed that two records
Telephone Jack- number Yolanda house Los area Angeles telephone Lease to the 3 at 12:17 minutes on June one hundred ten beginning son—one lasting a.m., morning. 2:26 a.m. same and one four minutes lasting beginning Pennsylvania Pittsburgh, made from that house to the Two calls were also beginning Diane Williams—one three minutes lasting number of telephone a.m., on beginning 3 at and minutes lasting thirty-four on June 11:46 one Ryens or so only 4 at 7:53 This final call was an hour before June p.m. for rendezvous unsuspected Chris left the Blade house their and Hughes death. with 30 at CIM. May testified that she visited defendant
Yolanda Jackson from she a call telephone after on June received midnight Sometime Defendant believed the call lasted about 30 to minutes. defendant. She He her to him in what he had out” of asked help said “walked the prison. her a refused. Defendant asked Jackson believed was manner.” She “joking conver- he She said not know. At one in the point where should she did go. sation, the first Shortly he a after defendant said was getting cigarette. ended, A again. called her brief second conversation conversation defendant ensued. witness, called a she that if Diane Williams were as parties stipulated two calls from defendant testify that in June she received telephone
would told he been released at her number. Defendant her that had Pittsburgh a new had he needed from because of law that been passed, prison Defend- She could He he would call back. money. any. said she not said get if day, next asked she had again gotten ant called Williams 6, Williams a collect She that she had not. On June received money. replied from Mexico. Tijuana, call defendant a.m., house June 10 or 11 visited the Lease Virginia Lang
On around of the ordinary. a sweater. She noticed out briefly get nothing murders, a khaki button was found on green After bloodstained on field in the bedroom. It identical buttons Bilbia was rug appearance CIM, wearing inmates wore at one defendant was seen jackets including from could come shortly before his The blood on button have escape. defendant one of victims. It was
A in the Bilbia bedroom closet. bloodstained found rope identical, similar, but found on the rope bloodstained length driveway of the residence. Ryen San sheriff’s crime County laboratory
A criminalist from the Bernardino luminol, house with used to various areas of the Lease substance sprayed *24 of visible A reaction eye. detect the blood not to the naked positive presence an feet of even from about two feet to five above consisting ranging “glow” the floor obtained shower Bilbia Defend- was on the walls the bathroom. ant left of this There four his the sill shower. were also footprint positive hallway reactions the Bilbia rug to the luminol on the leading bedroom Other that to be foot reactions were appeared impressions. positive obtained in the bedroom sink. The did closet bathroom reactions not blood, of but were “an that it be prove presence indication could blood.” hair in found matted the bathroom sink Investigators that trap appeared to have there a been time. Other hair A long was matted. microscopic examination of one of the latter revealed characteristics similar to Jessica’s head hair. hairA removed from the bathroom shower had characteristics similar Ryen’s head hair. Doug
During afternoon of June a local a citizen discovered hatchet in some weeds next to a fence on side of a road that Ryen led from the home out of the area. The above hatchet fencepost had a small indenta- tion indicating had struck it. The something sharp hatchet was covered by bloodstains; its head was by covered dried blood and human hairs. Some of the hairs were consistent those Doug with and Jessica Ryen. Some of the blood on the Root, hatchet head could have come from Josh. Dr. who performed concluded that autopsies, the hatchet could have inflicted the chopping wounds.
Witnesses identified the hatchet as from the missing Lease house after the It had been killing. in a sheath kept by the Lease house Bilbia fireplace. recalled it by the seeing when she fireplace the house. On June cleaning 7, the sheath for the hatchet missing was found on the in the floor Bilbia bedroom. had It not been there when Bilbia vacated the room.
Some buck knives and one more ice were also from picks missing Lease house. These could have inflicted the A remaining injuries. strap one fitting knives missing buck was found on the floor the Bilbia bedroom closet. found
Investigators three significant shoe print impressions—a partial sole on a impression bedroom, spa cover outside the master Ryen a partial bloody waterbed, shoe on a print Ryen sheet on bedroom and a nearly shoe complete print impression game room of the Lease house. All three appeared come from tennis shoes.
James an CIM Taylor, inmate at who on the played same prison basket- defendant, ball team as equipment issued to other inmates. He testified that days or four P.F. tennis shoes. Three pair Flyer he defendant issued 1) before June security (i.e., to minimum before defendant was transferred “Dude” Pro Ked tennis pair defendant these shoes for exchanged *25 issued to defendant. not remember what size shoes were Taylor shoes. did use Ked shoes to the state for The Stride Rite sells Pro tennis Corporation the same sole All tennis shoes contain such as CIM. “Dude” institutions Rite this The merchandise for Stride testified that general manager pattern. nor, that the manufactures any is not found on other shoe company pattern The are other shoe. shoes (which extensive), any to his was knowledge retail, the only government. not but to states and federal sold Baird, the crime County William the of San Bernardino sheriff’s manager Ryen from the and Lease laboratory, shoe print impressions compared other, defendant, and to the of issued to to other houses to each shoes type He that three shoe “all a similar tread prints possessed shoes. concluded in each indicate a similar shoe was used case.” type which would pattern, another, . . by with . could have been caused “are consistent one They to the shoes shoe.” The was similar “Dude” tennis used pattern same CIM, for but size 9!A. Baird searched area stores size probably possibly find similar sole but could none. defendant testified patterns, shoes with nine ten. that shoes that his shoe size was between Baird believed nearly but brand new. that made the three were new impressions Ryen With one all of the blood obtained from the samples exception, is a could have come from one or more of the victims. The exception house of wall master bedroom hallway blood found on single drop opposite door. the San sheriff’s County
Daniel criminalist with Bernardino Gregonis, this of blood a scientific called laboratory, crime examined drop process enzymes Human blood contains various and serum pro- electrophoresis. is a enzymes vary teins. The of from types person person. Electrophoresis enzyme so as to exclude or distinguish used to between technique types, include a as a donor of a blood After person possible sample.3 electrophoret- ic that the could not have come from testing, Gregonis drop concluded of victims. enzymes, results obtained for several also conclud- Gregonis
Based upon for ed that the was consistent with defendant’s blood. Results certain drop characteristics, of other inconclusive. Because various enzymes were had to come a Black such as defendant. One of the blood have from person Reilly electrophoresis, more see For a detailed discussion Cal.App.3d 1136-1138 [242 496].
enzymes initially is called “EAP.” believed the commonly Gregonis tested EAP of the of blood was B. When he later defendant’s own drop type typed blood, B. also believed it was EAP Gregonis type Gregonis subsequently RB, had Gregonis learned defendant’s EAP was a rare never type type. an RB before seen He reexamined the type. photograph original blood, but it inconclusive as whether it was testing drop testified, however, EAP B RB. that when he tested the type Gregonis blood, it drop to have the same EAP as defendant’s blood. appeared type Wraxall, Brian another described difference B and expert, between types RB as “fairly subtle.”
Before his learned of error EAP he Gregonis regarding defendant’s type, Blake, defense, and Dr. Edward an by the the expert drop tested employed further. Because the limited amount of the they remaining sample, per- formed tests that they believed had the chance of best defendant excluding as a donor. did possible They not retest for EAP. The additional tests tended to include a defendant as aOnly donor. minute amount of possible Later, the blood remained after these tests. after of his Gregonis learned error defendant’s EAP he regarding tried to test the type, remaining sample for EAP. Dr. Blake was final again present. This test consumed completely sample the and was inconclusive.
Electrophoretic testing also established the blood on the found in rope Bilbia bedroom closet could have come from one but victims not defendant.
The station wagon that was from Ryen house was a missing found on church lot in Beach. parking Long One witness testified he a flyer on the put car Sunday June morning, after the morning killing Ryen family. Later, Another saw the car 7. on June the vehicle was reported the police, who examined it for evidence.
The bloodstains, car contained various one which could have including come victims, from one or more but not defendant. Several hairs were recovered from the vehicle. Two criminalists microscopically compared hairs with defendant’s hair. One believed that one the hairs probably came from a Black and person, that “there enough was between similarity . . . the hairs from Mr. and the Cooper unknown hair that I felt the unknown hair was consistent with from Mr. coming second Cooper.” criminalist also found it was consistent with defendant’s hair. Both believed it was most likely hair. Unlike pubic an absolute fingerprint comparison, match is not when hairs. possible comparing Taylor,
James the inmate who issued the Pro Ked tennis shoes to defend- CIM, ant at testified that he saw defendant smoke hand-rolled cigarettes free inmates. This issued and “Role-Rite” tobacco using rolling paper retail, as in such CIM. to institutions California only but tobacco is sold closet, a box in the Bilbia and inside white tobacco was found Loose addition, of a hand-rolled ciga- butts—one cigarette car. In two Ryen box was car. The tobacco the white in the Ryen rette—were found visually examined Craig Ogino as Role-Rite. Criminalist identified from and the tobacco of the loose tobacco the two microscopically samples consistent with each other sample rolled Each was cigarette. the hand also them with various other compared with Role-Rite tobacco. Ogino The other tobacco sam- he from tobacco store. tobacco obtained samples all different. were ples manufactures Role- Evelyn, company with
Aubrey manager tobacco, the tobacco found he had “no doubt” that Rite also testified that car Role-Rite. Ryen Ryen car butts from the cigarette Examination of the saliva on two inconclusive, smoked *27 the been cigarettes having was but was consistent with were ap- as commercial by cigarettes a nonsecretor such defendant. Some found the A butt was Viceroy cigarette from Lease house. parently missing in Bilbia bedroom. Bilbia did not smoke. the can found in the missing
A Gold beer with one was Olympia six-pack the can was over Ryen hanging house. One bloodstained refrigerator in beer similar nearly A can Gold Olympia appear- of a shelf. edge empty training in found in a horse Ryen ance to those the was refrigerator plowed arena between the and Lease houses. midway Ryen about Ensenada, Mexi- Handy Angelica
On June defendant met Owen and Defendant, Jackson, Handy work. co. the name asked for using Angel their stay a if he would place help paint defendant some food and offered boat, on boat two After the for agreed. working the Illa Tika. Defendant They made set sail for San Francisco. days, Handys defendant and Barbara, near Bay Pelican Santa eventually several then went to stops, The Guard arrested defend- for four five Coast they stayed days. where Tika, and dinghy, off Illa swam to a ant at location after he dove Handys, he defendant pos- row shore. While was with the started to for house. as from the Lease coming sessed several items identified Statements Ryen's c. Joshua Pursuant to two Ryen testify stipulation,
Joshua at trial. taped did to the jury—a statements made him of a by played videotape were in which he under oath questioned by December interview was 1, 1983, counsel; and defense and an of a December audiotape prosecutor Forbes, Dr. his interview with Lorna Josh never iden- treating psychiatrist. as anyone tified the assailant. statement,
In the Josh videotaped said that before the mur- evening ders, barbecue, left for the just family before Blade three “Mexicans” Ryen came to the home for had them looking work. Josh never seen before. then went family to the barbecue in the truck and later returned. Josh and Chris the floor in Hughes sleeping Josh’s bedroom. slept bags bedroom, Josh’s in their and Jessica in hers. parents slept slept At some Josh and point during night, woke fell He up asleep again. Josh by reawakened scream. woke Chris walked down up, they hall, laundry room. stopping hallway. Josh saw Jessica He room, walked closer to his parents’ by saw “shadow or something” It bathroom. was dark. Josh could not see what the was or shadow what it was doing.
Josh and Chris “started a little scared.” Josh getting started to look around. The next he thing “[j]ust remembered was waking surrounded up” by the bodies his parents.
In Forbes, the audiotaped interview with Dr. Josh he said heard his mother bedroom, scream. He into her walked and saw someone the bed his back Josh “turning against me.” his “just saw back and his hair.” After *28 his him,” mother and stopped Josh screaming, “saw he went into the laun- dry room and hid room, behind the door. Chris went into the and parents’ then “was Josh gone.” then went into the bedroom and “he knocked me out.” He thought the was a man person usually “because women don’t do that sort of thing.”
Josh to a talking sheriff named “O.C” deputy (Hector remembered He told he O’Campo). thought three men had it O’Campo done because “I And, know, thought it was them. you they like stopped He up night.” did actually see three the incident. people during
2. Evidence Defense CIM,
Defendant admitted from escaping house, out at hiding the Lease bedroom, in the sleeping Bilbia but denied committing murders. He said that after he time, talked with Diane Williams the second he left the Lease house on foot. He did some stole a hitchhiking, purse, and eventually Defendant denied Handys. where he met the way
made his to Mexico house. Ryen approaching not involving of other events apparently
The evidence presented defense to do something killings. have had with might defendant that Josh indicat- earlier statements of The also evidence of presented defense had the crimes. his belief that the three Mexicans committed ing original more one felt the than presence Josh said he or otherwise never saw time the murders. assailant at the Thornton, University at the
Dr. a of forensic science John professor California, of the crime scene investi- criticized various Berkeley, aspects gation.
B. Phase Penalty 8, 1982, man
The evidence that on October presented prosecution Pennsylvania, a home assaulted burglarized to be defendant stipulated her, and burglary, kidnapped interrupted school student who high incident, vehicle, to steal one attempted defendant During her. raped The allowed to consid- victim’s vehicle. was also rape did steal of two er as defendant’s conviction counts an factor aggravating prior in Los Angeles. burglary
The several friends and relatives of defendant who defense presented love for him. about his and their good qualities continuing testified
II. Discussion A. Venue Issues San County.
Defendant moved to venue from Bernardino change *29 motion, San Diego County. court the and transferred the case to granted erred in the case to transferring Defendant contends the court prejudicially in his later venue second time. San and motion Diego, denying change 1. The Facts from County
The court the of venue San Bernardino granted change trial and nature extent of the the nature publicity, gravity because of the crime, community and the within the of the accused and the status county victims. The court the size and be neutral population found factors, and rejected a defense claim that overtones were expressly political significant.
The Judicial Council four counties as suggested new sites for the possible trial—Alameda, Sacramento, Los and San Angeles, Counties. De- Diego fendant Alameda or Sacramento preferred County. He stated that “down- town” Los Angeles (not rest of the county) was He acceptable. objected to San Diego. Because of the nature and extent of the in Los publicity County, the Angeles court chose not to transfer the case there absent stipu- lation by both parties. attorney district refused to so stipulate.
After a hearing, court transferred the case to San In a Diego County. decision, oral lengthy the court found that San although had received Diego more publicity about the case than either Alameda or County, Sacramento of San penetration by the Los Diego media Angeles was “inescapable,” the postpreliminary in hearing San publicity Diego was not “particularly It prejudicial.” found that trial in San would Diego be “considerably more convenient and considerably less than trial in expensive” the northern part state, and concluded that factors, all of these “[cjonsidering convenience, costs, time, relative hardship, money, publicity given, Court finds it to be in the interests of justice that the case be transferred to San Diego County.” trial,
Prior to venue, defendant moved for a second change this time out of San Diego County. motion, The court denied the finding there had been a off of “falling publicity” crime, the months since the publicity generally not inflammatory, and it was not reasonably likely defendant could not aget fair trial in San Diego County. selection,
During jury defendant renewed his of venue change motion based upon jury voir dire to that time. up motion, The court denied the that it stating “was frankly impressed with the caliber of the jurors overall. I think that you’ve agot Mr. pretty good jury, Negus for counsel], [defense the defense in this case. The hasn’t prosecution got anything go celebrate about.”
The jury was thereafter selected. The defense exercised four of its twenty- six peremptory challenges selecting original jurors, twelve and it used three of its four challenges selecting alternates.
2. Change Venue to San Diego County *30 After venue, a court orders a of “it shall change advise the Administra tive Director of the Courts of the transfer.” pending (Cal. Court, Rules of
804 shall, and judicial “in to business expedite
rule The director order 842.) a that would not be court courts judges, suggest the work of the equalize Thereafter, the court shall (Ibid.) of case.” by burdened the trial the unduly to in of as it determines be the interest the case to a court “transfer proper justice.” (Ibid.) sites—Sacramento, Alameda, named trial counties were as possible
Four law on a review Relying solely and Counties. Diego Los San Angeles, The to Right Venue Criminal Cases: Change note in (Note, Defendant's of 26 defendant first 131), the Stan.L.Rev. County (1973) Specify Transfer of case. try of four will the Rule he has the to select which the right contends court, Court, however, a of that the not 842 California Rules provides 842 pursuant transfer the matter. Rule was adopted decides where to party, mandate, venue criminal to of governs change procedures legislative 1036, 1038; v. 45 Cal.3d 1075-1076 (1988) actions. see Rich (§ [248 510, v. Court (1977) 755 P.2d McGown 960]; Superior 648, 653, It is with the 262].) fn. consistent CaLRptr. Cal.App.3d venue, of which is to ensure the defendant a fair behind purpose change 375, 378 v. Court trial (Maine Superior We therefore hold that 372]), 438 P.2d not to forum encourage shopping. defendant, court, the the trial shall be transferred. the determines where at which the to a to transfer hearing prior The defendant is entitled issues or absence of court should consider such factual as “presence in a new “relative possible county, hardship prejudicial publicity” case in various locations.” (McGown Superior involved trying Court, at fn. of where to 653.) decision supra, Cal.App.3d pp. court, must consider the case lies within discretion of the which transfer (Id. of at justice.” 652-653.) “interest pp. case, held, and carefully In this the McGown the court hearing It Los because of extensive rejected Angeles publici exercised its discretion. trial, court likely that could a fair chose ty. Finding Diego provide San moving that of the relative the case northern county hardship because no California. We abuse discretion. perceive in San amount the publicity Diego Defendant relies largely Al been Los media. County, it had claiming Angeles penetrated which is not sufficient to require change though “pretrial publicity may be cause county] venue sufficient persuade [a court] [a from Court, not be county]” (McGown Superior should transferred [that fns. the matter omitted]), Cal.App.3d p. original, [italics court. still lies within the discretion of the Defendant’s own at trial position Los but was inconsistent. He “downtown” accepted Angeles, argued
805 San because of its nearness to the Los media. The against Angeles Diego did the court discretion to transfer the matter to publicity deprive of San Diego.
Defendant that was a site for a argues Diego also San new possible factor, prison, trial there The court considered this making inappropriate. but be found it not to we no abuse of discretion. significant. Again, perceive Counties in a which be built are not from prison may trying disqualified crimes committed prisoners. case,
Defendant also that in a argues capital should not be hardship considered in choosing new trial site. We disagree. Although case, case, to a defendant’s fair trial in a in right capital may as not be infringed, considerations of relative and the conservation of hardship, judi funds, cial resources and public are in important factors between deciding various 315, venue sites. possible v. Hernandez 336 (People (1988) 199, 763 P.2d Cal.Rptr. 1289]; see also v. Bean 46 People (1988) Cal.3d [253 919, 467, 939-940 P.2d Cal.Rptr. 760 factors are important [251 996] [such in deciding whether to have a of joint trial counts].) multiple court considered properly relative nearness as a heavily factor weighing favor of witnesses, trial in San San Diego. was more Diego convenient for others, attorneys, and including interested citizens of San Bernardino Coun ty, the county of crime.
3. Denial Second Change Venue of of
Defendant next contends that the court erred in his denying mo tion for a second of venue. A change change venue must be grant ed when the defendant shows a reasonable likelihood that absence of relief, such a fair trial cannot be had. v. (People Williams 48 (1989) Cal.3d 1112, 473, 1125 Cal.Rptr. 774 P.2d In on an 146].) passing original [259 venue, motion to the court change considers such as the factors nature and offense, gravity of the the size of the community, the status the defend ant, victim, popularity of the prominence and the nature and extent v. publicity. 659, Bonin 46 (1988) 672 Cal.3d Cal.Rptr. 687, 758 P.2d 1217]; Harris (1981) Cal.3d 948 [171 679, 623 P.2d 240].) The same factors to a second apply change of venue (People Gallego Cal.3d that, below,
P.2d 169]) as discussed the fact venue except has already been once affects the changed analysis.
On after a appeal judgment the denial of a following change venue, the defendant must both that the show court erred denying the motion, i.e., change venue that at the time of the motion it was reason *32 county, in the current and that that a trial could be had ably likely fair i.e., v. a trial not in had. (People fair was the error was prejudicial, fact 468, 126, P.2d 541-542 788 Douglas (1990) 640] [268 Mosk, essentially The trial factual determinations of court’s opn. J.].) [conc. crimes, the status of community, the size of the gravity such as the of victims, extent of the publici defendant and and nature and pretrial by evidence. We independently will be sustained if substantial ty, supported likelihood the trial ultimate determination of reasonable review court’s Bonin, 46 3d 676-677.) v. Cal. at pp. of an unfair trial. (People supra, a second heavily The size the community weighed against of Harris, another venue. in the of Robert Alton of As noted change appeal case, in the state County San was third highly publicized capital Diego took The San where the trial City Diego, and ninth in area. of population Harris, 28 v. city supra, is the second the state. largest (People place, Harris, held the balance” 949.)4 “tipped against Cal.3d at In we that this p. “ are con venue because ‘adversities of change even a of publicity first ” area.’ siderably offset if trial is conducted in a populous metropolitan 102, 189 v. Manson 61 (Ibid., (1976) Cal.App.3d quoting People 265].) serious, of in this factor alone The the offense case is most but this gravity victims, of venue. The status of the defendant and does not compel change venue, also an factor in the initial change weighs against important nor residents second venue. Neither victims defendant were change County. Gallego, with v. closely or otherwise associated San Diego (People 52 Cal.3d at supra, p. 167.) on the The court’s factual
Defendant relies factor of primarily publicity. however, there Although are substantial evidence. findings, supported time, inflammatory. it over and not particularly was lessened was publicity, likely make defendant not receive reasonably It did not it that the could addition, In little. Public proves fair trial. evidence posttransfer publicity follow “Even if venue had been ity would this case wherever it went. its media nothing swinging could have from changed, prevented public attention to that of such notorious cases is place. magnetic compelling.” pull Manson, v. 61 The 15-month (Pe ople supra, Cal.App.3d p. 177.) and decision. time between crime trial also the court’s period supports “ is a natural familiar phenomenon, ‘That time soothes and erases perfectly ” Bonin, 677-678, 46 Patton to all.’ Cal.3d at pp. quoting 2885].) 1034 104 S.Ct. Yount U.S. L.Ed.2d (1984) trial, County By Diego running neck and neck the number two the time San with county County, (State population, Orange passed since it. of Cal. Statistical Ab has 15.) p. stract his mo- finally denying
Defendant contends court erred in renewed selection, the actual selec- change during jury claiming tion venue a fair trial. Out of tion showed a reasonable likelihood he did not receive cause over were excused for because of prospective jurors, pretrial that three of jurors twenty-two Defendant the actual publicity. argues jurors not excused had been who were for cause prospective exposed him to information” from “prejudicial ranging allegations against rape *33 “of of had awareness some sort confrontation that occurred when Mr. was on a Even Cooper boat.” defendant’s a accepting computation, second of change venue was mandated. not
isIt speculation to results of selection would suppose jury have been any county. different in The local significantly media trials of notori- report ous crimes all counties. read and watch People television newspapers Manson, all counties. (See v. 61 at People 176-177.) supra, Cal.App.3d pp. addition, excused, In all of the who were not and jurors especially jurors, actual stated could be fair. they totally need not jurors be “ of the ignorant facts and involved. if lay issues ‘It is sufficient the juror can aside his and impression render a based on opinion verdict the evidence ” Harris, v. 950, court.’ presented 28 Cal.3d at (People supra, p. quoting 717, 751, v. 756, Irvin Dowd 366 U.S. 723 (1961) L.Ed.2d 81 1639].) S.Ct. [6 Although juror’s a declaration of is conclusive v. impartiality (People Williams, 48 supra, Cal.3d p. 1129), trial who was on the judge, scene and best able to evaluate the jury, was with the overall caliber “impressed” jurors, jury found the to be fair. This is not finding fairness court, binding this it but is entitled to v. great weight. (See People 963, Jennings 278, 46 (1988) Cal.3d 979 760 P.2d Cal.Rptr. [251 475] [trial court’s findings regarding voluntariness of a confession entitled to great We weight].) have no reason doubt the actual jurors’ they assertions that be fair. could Gallego, v. (People Cal.3d at p. 168.) It is also significant that defendant four only exercised of his twenty-six 815, v. peremptory challenges. Daniels (People Cal.3d 853-854 (1991) 122, 112, 802 P.2d Cal.Rptr. 906]; People (1989) Coleman 48 Cal.3d [277 813, 768 P.2d Cal.Rptr. Our 32].) independent review of the [255 record convinces us trial that the court a correctly denied second change venue.
In summary, the venue San change away County from Bernardino sufficiently protected defendant’s to a fair trial. right Trial was properly in San held Diego County. Issues Jury
B. Selection
1. Fees Juror order payment that the trial court’s refusal to
Defendant contends
$5
section
daily
fee authorized
statutory
fees in excess of the
juror
in the denial of
balance of the venire and resulted
the demographic
“upset
community.”
We
cross-section of
selected from a
representative
contention,
see no reason to reconsider
rejected
have repeatedly
1047, 1076-1078
Cal.Rptr.
v. Harris
47 Cal.3d
(1989)
matter. (People
[255
185,
352,
v. Milan
9 Cal.3d
195-196
619];
(1973)
767 P.2d
People
[107
68,
50 Cal.3d
(1990)
also
956];
Thompson
507 P.2d
see
Cal.Rptr.
to defendant’s
Contrary
Defendant argues
error,
no
but
review of the record discloses
jurors.
as to six
Our
prospective
as to
even
the court erred
assuming
defendant has failed to show prejudice,
exercised but four
ever seated in the
box. Defendant
jury
all six. None was
could
twenty-two which
twenty-six
leaving
of his
peremptory challenges,
circum
necessary.
had it been
Under the
have been used to excuse the six
stances,
a
harmless the erroneous inclusion of prospective
courts have found
80, 89-90,
81,
L.Ed.2d
v. Oklahoma
487 U.S.
87-89
(Ross
(1988)
juror.
[101
72, 103
51 Cal.3d
(1990)
108 S.Ct.
v. Stankewitz
2273]; People
[270
1223,
817,
1247-
v.
50 Cal.3d
23];
(1990)
793 P.2d
Gordon
Cal.Rptr.
People
451,
v. Bittaker
48 Cal.3d
251];
(1989)
792 P.2d
People
1248
Cal.Rptr.
[270
630,
1046,
v. Coleman
659];
1087-1088
774 P.2d
People
Cal.Rptr.
[259
83,
749,
3. Contention Witherspoon/Witt for cause the court erred two excusing Defendant also contends o their t the death penalty. because of jurors opposition prospective
809
for,
merits
We must
this issue on the
unlike the erroneous
consider
inclusion,
juror
the erroneous exclusion of a
because of that
prospective
se.
views on the death
is reversible
v.
per
(Gray Mississippi
person’s
penalty
622,
2045];
The
standard is stated in
v. Witt
469 U.S.
applicable
Wainwright
(1985)
841,
412
L.Ed.2d
105
844],
S.Ct.
which “clarified”
earlier decision
[83
776,
v. Illinois
The record supports court’s One of the rulings. prospective stated, jurors “If I die, am asked being whether a man should or should not it, I cannot do I will not do it.” The other stated he would never vote for the death other, statements, penalty. Defendant points to and equivocal, claims the court did not sufficiently jurors determine whether the could set aside their court, own views obey however, and the court’s instructions. The resolved the as to the question juror’s true state of mind contrary to defend ant, which resolution is on this binding (See court. also v. Guzman People 45 (1988) Cal.3d P.2d of words [248 917] [use not undermine does “I answers think” qualify like “I believe” no error. We find of substantial impairment].) finding Pretrial Issues C. Contention
1. “Hitch” 9, 527 12 Cal.3d v. Hitch (1974) on Relying crime on a host of this the investigation 361], challenged P.2d defendant failed to authorities enforcement that law essentially contending grounds, He requested process. of his to due right in violation evidence preserve alternative, of lesser or, the imposition in the be dismissed charges evidence, or suppressing the death penalty, sanctions such as prohibiting the allegedly regarding to the prosecution instructions adverse jury giving end, held. At the evidentiary hearing A evidence. lengthy pretrial lost that all law found court, of the investigation, critical of aspects although faith, no destruc- that there was good authorities acted enforcement refused to Hitch. The court meaning within the tion of material evidence best shots sanctions, your to “present invited the parties but impose . . . .” credibility the time of trial to authorities claims the erred. He contends the court Defendant scene, many mishandled crime original the investigation mishandled at other evidence, items found failed to collect certain items specific the mistakes He further claims to the case. assertedly relevant locations evidence. him exculpatory of potentially deprived Hitch, 641, but is no found longer law applicable Cali In decisions. Court United States Supreme two subsequent 413, 422, 104 L.Ed.2d U.S. 488-489 Trombetta fornia Constitution duty imposes “Whatever court held: 2528], S.Ct. the high *36 evidence, limited to evidence must be duty that on the States to preserve To defense. in the suspect’s a role significant be to might expected play that evidence must materiality [citation], of constitutional meet this standard before the evidence value that was apparent both an exculpatory possess be unable defendant would a nature that the and be of such destroyed, was (Fn. means.” available reasonably other evidence to obtain comparable omitted.) 51, 58 488 U.S. Youngblood (1988) in Arizona v. recently, [102
More “unless a criminal 289, held that 281, the court 333], 109 S.Ct. L.Ed.2d to preserve failure of the police, bad faith on the part can show defendant of due process a denial not constitute useful evidence does potentially law.”
811
as a matter
we should
Defendant
that
of state law
not follow
argues
Trombetta,
rejected
v.
467 U.S.
have
supra,
479. We
conten-
California
Johnson,
v.
does
1233-1234.)
tion.
47 Cal.3d at
Defendant
(People
supra,
pp.
we
Arizona v. Youngblood,
not
that
should not follow
specifically argue
in
Defendant’s due contentions fail under both Trombetta Youngblood. and a perfect might have uncovered Although investigation evidence, large additional amount that was all discovered direct pointed defendant. ly likely” at Additional evidence would been “much have more Trombetta, to inculpate defendant than to (California him. v. exculpate 467 U.S. at supra, 422].) L.Ed.2d at in p.489 Nothing the record p. [81 any that evidence suggests additional would have been that exculpatory, any value exculpatory apparent any was at the time evidence lost. Daniels, v. (People at supra, p. 855.) Defendant has also failed show bad faith. The court below expressly faith, found in investigators acted good a finding challenged appeal fully by the supported record. This was major complex crime investigation. Although criticize hindsight might investiga- one tion in number of the large number of respects, persons involved all acted faith. good that, minimum,
Defendant contends at a the court should have a favorable given jury instruction under v. Zamora 28 People (1980) Cal.3d 88 615 P.2d In 1361], Youngblood, Arizona 488 supra, [167 U.S. at at page L.Ed.2d page 287], for the trial court example, instructed the jury they “that if found destroyed the State had or lost ” evidence, they ‘infer the true might fact is the State’s against interest.’ Nothing Youngblood suggested instruction was required. Although an adverse instruction be a may to a due proper violation response process Zamora, (see 3dCal. at no supra, p. 96), there was such violation in this sanction, case. trial court was not required to impose including jury instructions. v. Douglas, 513; supra, Cal.3d v. Marti p. People nez 691]; see also Cal.App.3d Medina, 51 Cal.3d at pp. 893-894 no sua [finding duty sponte *37 an adverse give instruction].)
The trial court’s refusal to sanction the did not leave defend- prosecution stated, ant helpless. As the he court was entitled to take his shot” “best before the jury, and evidence deficiencies in the present regarding him. “This to to discredit the case was try against adequate investigation v. Meese and was itself a sufficient sanction.” (Scott insure a fair hearing 249, The “Hitch" motions Cal.Rptr. 857].) (1985) Cal.App.3d [219 were denied. properly
2. Serological Evidence court erred in the results of electro- admitting (1) Defendant contends the of saliva evidence; of the bloodstain analysis (2) testing phoretic in car secretor or nonsecre- Ryen from the two butts found for cigarette Kelly/Frye inadmissible under the tor status. He contends the evidence was 144, 24, 30 549 P.2d rule. v. 17 Cal.3d Kelly (1976) Cal.Rptr. (People [130 1013, 1014 v. Cir. Fed. 1240]; Frye 1923) United States (D.C. [54 Morris, ante, 152, at 34 A.L.R. see 145]; People p. App.D.C. generally evidentiary 807 P.2d At a 949].) pretrial hearing, the evidence. The five witnesses in support prosecution presented admitted all the contested evidence. defense none. The court presented has waived Attorney General first contends defendant (Evid. below. by failing object some of his current contentions specifically Code, 353, 1, 22 fn. 8 v. Green & (a); subd. § However, held evidentiary hearing 609 P.2d 468].) all evi Kelly/Frye to defendant’s response objection serological all currently dence. The and court’s covered of the matters hearing ruling sufficiently objected We believe defendant on the raised grounds dispute. Hence, we address the merits. appeal. admissibility testing
Defendant challenges general electrophoretic this contention. recently rejected of dried bloodstains. We considered and Morris, ante, 206-208; cited there- see also cases pp. the matter. in the instant record causes us to reconsider in.) Nothing tests, admissibility Defendant of two challenges specific also one one not. He first challenges electrophoret involving electrophoresis, called transferrin. Elec ic of blood for a serum testing protein drop and serum of which enzymes is used to test for various trophoresis proteins, that the method had re only only transferrin is one. There was evidence testimony, been to test for Based this defend cently upon used transferrin. recent to have vintage ant contends that for transferrin is of too testing All of the community. achieved the scientific general acceptance experts, however, for transferrin was a who testified on the matter said that testing In methods. the absence of valid established application electrophoretic evidence, of a contrary reject there is no reason to particular application method such as that has been as reliable. accepted (See electrophoresis *38 19, 27, v. Smith fn. 4 Cal.App.3d 678] admissible, is criticism of electrophoresis specific methodology
[once evidence, to the not its goes weight admissibility].) Defendant next of the two butts. challenges testing cigarette Some secrete their ABO persons substance into other blood-group body fluids such as saliva. Others do not. Defendant ais nonsecretor. Gregonis what is performed called the test to “absorption-inhibition” try to deter mine whether saliva found on the butts was from a secretor. A positive secretor, result would have meant the saliva was from a and thus from not defendant. The result was negative.
The defense never challenged validity of the test absorption-inhibition when the result is A result positive. positive donor is a secretor. proves however, Defendant true, is, argues, that the is not that that a opposite result negative does not the donor was a prove nonsecretor. The testimony at the hearing this supports argument. The witnesses testified that a nega- tive result means either that the donor was a nonsecretor or was a secretor but for some reason the test, secretion could not be detected. An additional case, performed this would be necessary to establish that the donor was a nonsecretor.
Although defendant’s is argument factually it supported, proves nothing. one, No including Gregonis, claimed more for the test than the evidence warrants. The jury learned that the test’s negative result meant that the defendant could not be excluded as donor. It was not possible told the test affirmatively established that the donor was a nonsecretor. Gregonis tes- tified before the jury that the result negative was an “indication” that the nonsecretor, person was a that it meaning was “more consistent” with that testified, however, conclusion. He also conclusive, that the test was not the donor “could also have been a secretor” but the secretion was not detected. The evidence was not particularly but it probative, was certainly relevant for the jury tested, to learn that the cigarettes were and defendant was not excluded. We find no violation of the Kelly/Frye rule.5
Defendant also contends that Gregonis to do the unqualified testing court, and to an testify however, as The trial expert. found him qualified. “The trial court is given considerable latitude determining the qualifications an and its expert will not be ruling disturbed on appeal unless a manifest abuse of discretion is shown.” (People Kelly, Cal.3d at p. 39.) had been a Gregonis criminalist in San Bernardino County conclusion, Because of this Attorney we need not consider the argument General’s modify we Kelly/Frye should rule. *39 He in criminalistics. of science degree a bachelor years for over four with in in serology general and training practical experience considerable had many times as an expert in and had qualified and electrophoresis particular, not abuse its discretion. The court did the past. vein, manner also criticizes precise In a related defendant the na misperceive the tests. These arguments Gregonis performed which the fundamental rule tests Kelly/Frye rule. Kelly/Frye ture of the “[T]he not the degree professionalism validity methodology, of a new scientific of the alfects the weight Careless testing it is applied. with which [Citation.] must be attacked on cross-examina admissibility, not its and evidence and v. Farmer testimony.” (People tion or other expert its the court acts within P.2d “Once 940].) 913 [254 case, to in this the weight as it did and finds the witness qualified, discretion Smith, for the to decide.” testimony is given be Grego to cross-examine Defendant was allowed 27.) at p. Cal.App.3d testing, manner in he did the and the which fully nis about his qualifications There (Id. 28.) evidence he desired. p. additional and to whatever present was no error.
3. Evidence Testing Defense tiny a series of it was discovered that hearing, During preliminary scien- analyzed house had not been Ryen collected from the of blood drops for for the release of this series filed a written motion tifically. The defense blood drops because the attorney objected The district independent testing. He them. entirely would consume testing small that serological were so or, defense jointly by that be done testing prosecution requested the defense in the test the alternatively, samples presence that expert. be they small that could were so agreed samples defense consumed, entirely be they two tests before would only to one or
subjected sam thus consume—some analyze—and on the right but insisted until after results to the prosecution unilaterally revealing without ples argued trial. Defense counsel its evidence at the defense had presented “If a self-incrimination because the right against less would violate anything done, be able to they would to know which test was trained criminalist were I looking was If able to know what they I for. were looking know what was defense for, strategy.” certain be able to out they figure aspects would and asked absolutely,” “to release defense motion The court denied the “both sides may participate in which on a method try parties agree attorney district next hearing, At the analysis.” the testing to allow the defense to “choose all for all the sam- willing expert the tests only that the also be at the ples,” provided prosecution expert present The defense testing. wanted to be half of the and be allowed given samples, to consume them in without of the re- testing, informing prosecution *40 sults. The court ordered that of all in the testing be done samples presence of both and defense prosecution eventually The evidence was test- experts. ed, apparently conjunction with the defense of sig- expert. Nothing nificance was discovered.
Defendant the contends court erred in not allowing independent testing of the blood “in a manner consistent samples with the self- privilege against incrimination and the to right effective assistance of counsel.” He relies counsel, on cases primarily to the involving right effective assistance of to right employ experts, privilege to against being required provide discovery case, to the None is In prosecution. this apposite. blood were so small samples they could not effectively be divided to give facts, defense a Under these portion. the defendant has no to obtain right the evidence collected by the to prosecution, destroy that evidence in inde- pendent testing, and then to withhold from the the results of prosecution the testing.
In
Meredith (1981)
Just as there was no defense right 29 Cal.3d to destroy it, evidence it found before the prosecution found so too there is no defense right destroy evidence found the prosecution. to inform prosecution that if he were argues compelled
Defendant divulge be forced to implicitly he would what tests he wanted to perform, however, not, to do anything. compelled defense The defense strategy. in the testing allowed the defense to participate and court prosecution could results. The defense learn the on condition that the prosecution in the testing. Forcing the condition or participate choose accept other provision not violate the Constitution such a choice does 378, 387 law. Collins (See People to make a difficult whether judgment 722 P.2d a defendant [forcing 173] constitutional].) self-incrimination is or to assert the testify right against D. Guilt Phase Issues *41 Presentation Evidence
1. Restriction on of Defense restricted his erroneously right Defendant contends the court the investigation and to evidence regarding cross-examine witnesses present allowed the defense wide lati this crime. the court Although generally of it sustained a few of the investigation, tude to challenge competence Code section relevancy on the basis of and Evidence objections prosecution 352.6 in deter court is vested with wide discretion
In
the trial
general,
in
effect of
evidence
proffered
relevance and
mining
weighing
prejudicial
value. Its
will not be overturned
rulings
appeal
its
against
probative
Green,
Cal.3d
v.
27
supra,
the absence of an abuse of that discretion. (People
657,
199,
595
24
211
19;
v. Pierce
Cal.3d
People
(1979)
p.
[155
unlimited,
not, however,
when its
P.2d
This
is
91].)
especially
discretion
evidence.
of
the defense to
ability
present
exercise
hampers
to control the ultimate
While the trial
has broad discretion
judge
cross-examination,
latitude should be
to cross-examina
given
wide
scope
in a criminal
of a
witness
credibility
tion
to test
designed
prosecution
126,
744,
v.
780
case.
Belmontes
(1988)
The United States Supreme
function of the
motivation in
is a
testifying
proper
important
a witness’
Alaska
of cross-examination.’ Davis
constitutionally protected right
[v.
347, 353-354,
308,
S.Ct. 1105)]
316-317
(39
415 U.S.
L.Ed.2d
(1974)
follow,
It does not
Greene v.
360 U.S.
McElroy,
(1959)).
(citing
may
if its
“The court in its discretion
exclude evidence
Evidence Code section 352 states:
(a)
substantially
by
that its admission will
ne
outweighed
probability
is
probative value
danger
(b)
prejudice,
create substantial
of undue
consumption
undue
of time or
cessitate
issues,
misleading
jury.”
confusing the
or of
course, that the Confrontation Clause of the Sixth Amendment
a
prevents
trial
from
limits on defense counsel’s
into the
judge
imposing
inquiry
contrary,
bias of a
witness. On the
trial
retain
potential
prosecution
judges
wide latitude insofar as the Confrontation Clause is concerned to impose
about,
reasonable limits on such cross-examination
on concerns
based
harassment,
issues,
other
confusion of the
among
things,
prejudice,
witness’
or
that
rele-
safety,
only
is
interrogation
repetitive
marginally
Term,
vant. And as we observed earlier this
‘the Confrontation Clause
cross-examination,
an
for effective
guarantees
not cross-exami-
opportunity
extent,
nation that is effective in
way,
whatever
and to whatever
the defense
Fensterer,
wish.’ Delaware v.
might
474 U.S.
20 (1985)
curiam)
(per
(italics
original).” (Delaware Van Arsdall
475 U.S.
678-679
Harris,
674, 683,
L.Ed.2d
The Van Arsdall court concluded “a that criminal defendant states violation of the Confrontation Clause showing he was prohibited from engaging otherwise cross-examination appropriate to show designed witness, form of bias on the prototypical part thereby ‘to expose to the jury the facts from which . . . jurors could draw appropriately *42 Alaska, inferences to the relating reliability of the witness.’ v. (Davis supra, Arsdall, at 318.” (Delaware Van 475 U.S. at supra, L.Ed.2d at p. p. 684].) “There is no Sixth Amendment violation at all unless the prohibit- ed cross-examination might reasonably have ‘a produced significantly different of impression . . . .’” credibility v. Bel- [the witness’s] montes, Arsdall, supra, Cal.3d at p. Van quoting U.S. at supra, p. L.Ed.2d at p. 684].) standards, these
Applying we find no error. Defendant first argues the court erred in not admitting into evidence certain sheriff’s manu policy als the regarding evidence, collection and preservation and a treatise on crime scene He investigation. the evidence argues was necessary to show that the investigators failed to follow After a accepted procedures. hearing, the court ruled that although the defense could evidence present regarding failings the investigation, “The value of probative getting into details of the policy manuals and time consideration and the confusion issues [of] and all of that causes me at this time to sustain the objection.”
This came within the ruling court’s discretion. Defendant was allowed to litigate thoroughly the competence the investigation. His cross-examina- tion of prosecution witnesses was vigorous and exhaustive. He an presented witness, Thornton, Dr. expert who criticized many of the aspects crime investigation. The trial court could reasonably find that manuals admitting cumulative, and treatises would be and confusing, unduly time consuming, evi- additional undoubtedly compel since such admission would especially their and authoritative status. dence regarding meaning erroneously next court restricted cross-examination argues Defendant reasons for actions and inactions during investiga- certain regarding him to was and was not fully tion. He admits the court allowed show what done, argument investigation all facts his that the supporting present evidence regarding investiga- was court found that incompetent. issues, to a confusion of tor’s would “lead considerable thought processes of the to a lot of time this jurors,” distraction and would “lead [and] find no of discretion. case.” we abuse Again, of which defendant now com- rulings
We have reviewed remaining mass find of discretion. In similarly no abuse plains, light regarding competence evidence the defense was allowed to present have reasonably pro- evidence would not prohibited investigation, credibility. of the witnesses’ significantly duced a different impression {Peo- Belmontes, error. 780.) 45 Cal.3d at There was no ple p. Ruling 2. Shield Law Newsperson’s trial, in the served a duces tecum on the
Early defendant subpena Daily grant the Ontario an Ontario The court editor of Report, newspaper. ed that the information the editor’s motion quash subpena, finding Const., (Cal. California’s shield law. sought protected newsperson’s I, Code, art. 1070.)7 subd. Evid. Defendant contends court (b); § § erred. *43 editor, I, (b), pertinent part: publisher, reporter, in “A Article section subdivision states newspaper, magazine, periodi person employed upon or connected with a or other other or service, publication, by any cal or has been so press person or a association or wire who con by adjudged contempt judicial, legislative, not be in a or employed, nected or shall adminis body body, any having refusing to to power subpoenas, trative or other the issue for disclose any procured publication connected in a employed the source of information while so of for any unpub magazine periodical publication, refusing or other or for to disclose newspaper, gathering, receiving processing or in of information prepared lished information obtained or public. the for communication to << subdivision, ‘unpublished in information’ information not dissemi- “As used this includes by person sought, is or not related in- public
nated to the the from whom disclosure whether outtakes, to, notes, includes, pho- has been disseminated and but is not limited all formation through public not itself to the a tographs, tapes or other data whatever sort disseminated communication, related published upon information based or to medium of whether or such has been material disseminated.” substantially Delaney language. (See similar v. Supe- Code section 1070 Evidence contains 934].) rior 789 P.2d Court 796 [268
a. The Facts letter, County of “A San Bernardino The on subpena sought production stationery, a san Sheriff to be from Bernardino Department purporting [s/c] Detective, to the Daily describing Sheriff Homicide Editor of the Report, the the murder and the mishandling Ryen the investigation, envelope came in.” In a the motion the letter declaration to to responding quash defense that he a counsel stated had received call from subpena, telephone with the him that Daily Ontario the had reporter Report informing reporter an to on received letter the editor written sheriff’s unsigned department stationery. The the read letter to defense counsel. Defense counsel reporter read, essence, did not take notes the as the letter was but believed that in writer identified with the himself as homicide detective San Bernardino County Sheriff’s The writer criticized the Department. personal participa- in tion sheriff and the investigation performance depart- ment’s “Career Criminal Division.” he be The writer would not hoped out, for and punished “relief that speaking expressed somehow Homicide crime, had solved the the Sheriff and the Career Criminal despite Division.” Over defense objection, to in hearing the motion was held quash chambers. A within the sheriff’s sergeant and a defense investi- department testified gator they that asked in everyone had involved or investigation currently in the homicide if department he had knowledge the letter. Everyone denied any knowledge. court then to granted motion the letter quash, finding “lacking and relevant probative values” case. this The court that stressed already defense had “examined each every one of . . . these officers that had anything remotely to do with oath, Ryen court, under investigation, in detail more one than [on] . . occasion . .”
The court prohibited the parties court but not the personnel, press, “from disclosing media or other of this nature motion” unless people Daily the Ontario an Record wrote article hearing. about the Defense coun- order, sel objected to the that he arguing needed the letter publicize order, obtain further information it. regarding The court stood finding the potential benefit from letter was publicizing slight *44 nonexistent, and was outweighed by the harm. potential
b. Discussion
We have
examined the
recently
shield law in a criminal
newsperson’s
Court,
context.
(Delaney
Superior
supra,
785.)
The law
protects
from
newsperson
being adjudged
court for
contempt
refus
information,
to disclose either
ing
source
information or the
unpublished
law, however,
at
The
(Id.
796-797.)
pp.
whether published
unpublished.
to a fair trial when
constitutional right
“must
to a criminal defendant’s
yield
unduly
would
infringe
refusal to disclose information
the newsperson’s
information
disclosure of
at
In order to
793.)
compel
that right.” (Id.
p.
law,
showing
must make a threshold
the shield
the defendant
covered
assist his de
materially
information will
that the
a reasonable possibility
but it must rest on more
not be detailed or specific,
fense. The
need
showing
is
showing
If the threshold
808-809.)
at
(Id.
pp.
than mere speculation.
made,
whether to
determining
various factors
the court then balances
809-813.)
of the information. (Id.
pp.
disclosure
compel
The related Even the author of the discovery. had full about which the defense subject crime. The correctly had solved the letter was satisfied that the police the letter everyone who have written might investigator questioned defense More nothing. significantly, it was and learned genuine), (assuming relevant to examine under oath all witnesses. defense had full opportunity relevant only which was tangentially of the investigation, competency discovery, The denial of the exhaustively the issue of was guilt, explored. to error, under standard. if could not have defendant prejudiced even from the court erred in prohibiting parties Defendant also contends In 50 Cal.3d at Delaney, page nature of the hearing. disclosing 813, in a case hearing of an camera proper we recognized propriety or sensitive infor disclosure of confidential unnecessary “to against protect from making the parties mation.” It is similarly appropriate prohibit orders court has discretion issue protective such a disclosure. The v. Maxwell U.S. (1966) (Sheppard avoid undue to the prejudice parties. 600, 610-620, Hamilton v. Munici 1507]; 86 S.Ct. 361-363 L.Ed.2d 800-801 Court Cal.App.2d pal anony nature of hearsay inflammatory Given the 1029].) A.L.R.3d letter, was well within order of this case mous the narrow protective court’s discretion. who learning the letter in the hope
Defendant wanted to publicize already that had authorship Given the investigation regarding wrote it. addition, occurred, In for the reasons elusive at best. this hope
821 above, significantly the letter’s could not have discovery discussed origin not violate defendant’s rights. assisted the defense. The order did protective 3. While Victims Alive Photographs of to admission the objected depicting
Defendant of photographs attorney still alive. district that Ryens argued and Chris while The Hughes on one was to show the were relevant three of which grounds, photographs admitted physical “relative size of individuals involved.” The court Chris, one that they of the and one of but ordered not photograph Ryens family include the error. Defendant contends was dogs. ruling we have held that of victims alive should Although while photographs admitted not be if “no they have contested issue the case” bearing 553, 266, v. Ramos 30 Cal.3d (People (1982) 578 639 P.2d [180 the court has if 908]), discretion admit such relevant. photographs 245, (People 114-115 753 Thompson (1988) [246 P.2d An issue at trial whether 37].) one alone could have killed person victims, all four or whether persons Ryen three were involved as Joshua had once A thought. victims was relevant on this photograph point. court exercised properly its discretion but minimizing any prejudice otherwise the two admitting photographs.
Defendant actually contends the admitted than photographs larger were the court had in its There contemplated was no on this ruling. objection Green, so issue ground, cannot be raised on 27 appeal. Cal.3d at 22.)8 p.
Defendant also contends admission of the
violated Booth v.
photographs
Maryland
482
(1987)
U.S.
107
L.Ed.2d
S.Ct.
Booth held
[96
2529].
because
punishment
defendant’s
must be
his
tailored to
personal
responsibility
moral
evidence
guilt,
about
victims’ personal qualities
crime,
related
directly
to the circumstances of the
and “about which the
defendant
was unaware”
at
(id.
p.
L.Ed.2d
should not be
p. 450]),
admitted in capital sentencing
(See also South Carolina v.
proceedings.
876, 883,
Gathers
U.S.
L.Ed.2d
4. Misconduct Defendant of Chino, escape, at his about his imprisonment Defendant testified detail was, might as his arrest. Cross-examination and the events until subsequent “rid- the Defendant contends cross-examination be expected, vigorous. charac- a “relentless of campaign and constituted dled with improprieties” We assassination.” disagree. ter to be a witness against cannot be
Although
compelled
defendant
himself,
with
if
and makes a
denial
crime
general
he takes
stand
“very
of
is
he
cross-examination
charged,
scope
which
is
permissible
814, 833-834
Cal.Rptr.
v.
26 Cal.3d
Lanphear (1980)
wide.” (People
[163
testifies,
601,
district
voluntarily
608
689].)
P.2d
When
defendant
into
by
the facts
attorney
fully
testimony
inquiring
his
may
amplify
assertions,
evidence
or by introducing
circumstances
his
surrounding
or the
or refutes his statements
explains
cross-examination which
through
Harris,
from
v.
may necessarily
(People
be drawn
them.
inferences which
cannot,
state of
testifying
28
A
to a
Cal.3d at
defendant
p. 953.)
supra,
of the prosecution,
to and inconsistent with the evidence
things contrary
him,
testifying
but without
indirectly denying
testimony against
thus
facts,
to
the same
limit the cross-examination
with relation to
expressly
43
he
Gates
Cal.3d
(1987)
testifies.
v.
concerning
facts
which
precise
666,
1168,
301].)
743 P.2d
Cal.Rptr.
[240
asked
attorney
first
improperly
Defendant
contends the district
court,
him. The trial
how
him to
certain items of evidence
explain
against
ever,
re
Defendant did
objections
questions.
sustained defense
cured
an
could have
that the
be admonished. Since
admonition
quest
harm,
v.
(1989)
Carrera
the matter has been waived on
any
appeal. (People
Green,
348,
v.
121]; People
Cal.3d
777 P.2d
The district
also asked defendant
matter
of
object many
Defendant
thus
questions,
waiving
failed
Green,
34;
v. Baines
People
27 Cal.3d at p.
on appeal. (People
supra,
event,
635 P.2d
In
455].)
in this
directly
were
involved
Three
the aliases
proper.
were
questions
his
an alias he used
escape,
case: defendant’s alias
the time
prison
alias
used with
from
and the
he
Tijuana,
he
Yolanda Jackson
when
called
of an alias under
defendant’s use
Handys.
Other questions, including
for
credibility,
subject
to his
a proper
relevant
were
penalty
perjury,
Harris,
When defendant a admitted that “few” friends would possibly help the attorney they district asked whether were of an objection without part organization. they Defendant were Any challenge said not. to this question addition, has been waived absent an objection. In this was an isolated that a inquiry elicited There no negative response. reasonable appears prob that a ability more favorable verdict have would been returned had the not been question asked. Watson Cal.2d P.2d 243].) finally
Defendant of complains insinuations “improper regarding He threats.” did not most object to of the thus questions, waiving matter. Defendant did object to whether he had question “threaten[ed] kill” Jackson. Jackson had testified that in one of her conversations with defendant his she asked him “not following escape, to come and hurt [her] because wouldn’t him.” Defendant she help admitted said this. The [she] of, question which complained elicited a came negative within the response, “very wide” of scope permissible cross-examination. The same is true of questions whether defendant had threatened Diane in Williams his conversation postescape with her. There no was misconduct.9 5. “Use” Prosecution Expert of Defense
Criminalist Blake, testified Gregonis without that Dr. de- objection fense expert, was some present during of the of the blood testing of drop victims, that could not have come from of the and that the was testing “kind a joint effort.” Over defense he also testified objection, that he retesting blood Dr. Dr. suggestions; followed Blake’s Blake did examination, EAP suggest be On type retested.10 redirect he encouraged 9Defendant also Nothing claims court supports misconduct. the record the claim. 10Gregonis originally determining erred in type. During defendant’s EAP retesting, Blake, error, Gregonis, unlike Dr. was unaware this and thus unaware of the value testing second EAP drop of the of blood. Defend- analysis. he to Dr. Blake for sent discussed other evidence samples testimony beyond cross-exami- scope that the objected only ant nation, defense about the Dr. testified for the which was overruled. Blake cross-examination, he stated without of blood. On analysis drop had and the two had with Gregonis past, that he worked objection the same results.11 obtained generally “utilized” prosecution
Defendant contends improperly *48 defense, his thereby a with interfering defense as witness the against expert As to to which questions to of counsel. those the effective assistance right the has been waived was on this matter objection ground, there no 399, 583, Clark 50 Cal.3d 623-624 Cal.Rptr. v. (1990) appeal. (People [268 Bittaker, 1098, 1104.) 48 at pp. P.2d v. Cal.3d 127]; 789 People supra, object. was to attorney incompetent failing Defendant claims his 171, 43 215-218 Cal.3d (1987) v. Ledesma (See generally People [233 before, 404, to As we noted “a mere failure 729 P.2d have 839].) Cal.Rptr. to or seldom establishes counsel’s object incompetence.” evidence argument Ghent, v. received an extraor 772.) 43 Cal.3d Defendant supra, (People p. be said to be incom dinarily attorney and able defense. His cannot vigorous In of later theories. appellate legal for not all counsel’s anticipating petent addition, the contentions lack merit. an the in which the blood the defense made issue of manner
Since tested, about all the Gregonis the was entitled to prosecution question was the the involvement of including circumstances the surrounding testing, not have an may expert defense The defense choose either have or expert. former, evidence, if it no in the of but chooses analysis participate The was entitled to authority jury evidence of such prohibits participation. in the the trun merely learn of all the circumstances involved testing, cated version defendant desires. certainly are cites not on Defendant was point. authorities defendant advice, Corenev- (See which he received.
entitled to the assistance of expert 165, 307, 682 v. Court 319-320 sky Superior (1984) [204 counsel, defense attorney P.2d The district did not seek call 360].) Blake, 115 Rodriguez Dr. v. (cf. People (1981) Cal.App.3d even as witness did to elicit evidence confidential 1018 nor he seek Cal.Rptr. 798]), [171 v. Tam- his attorney. (See People communications between defendant and 215 He did Cal.Rptr. 731].) borrino 581-582 (1989) Cal.App.3d failure it had a not comment on the defense to call witness when privilege 11 chambers, argued generally questions hearing In a defendant that some were be later examination, objected yond specific questions. he scope of direct but never these Bittaker, (See supra, testimony. to bar disclosure that witness’s Rather, relevant merely ques- asked 1104.) prosecution Cal.3d at p. evidence, cross-exam- tions of its own witness regarding testing defense. by ined an called expert eliciting testimony from
Dr. Blake was not cross-examination exempt merely he was called defense. favorable to because prosecution Cal. v. Mattson 3d 877-878 defendant’s P.2d defense experts regarding 983] [cross-examination Coleman, 151-152 future Cal.3d at pp. dangerousness]; People the defend of defense statements psychiatrist regarding [cross-examination ant made to There no error. him].)
6. Waiver Presence of Defendant's defense Ryen
At
viewed
and Lease houses.
request,
*49
Defendant
his
right
waived
to be
personally
present during
viewing.
joined
Defense counsel
waiver.
he
Defendant now contends
could not
waive his
recently
We
the contention.
v.
presence.
rejected
(People Lang
991,
386,
49 Cal.3d
1025-1026
(1989)
782 P.2d
see
627];
also
[264
97,
674,
Snyder v. Massachusetts
291 U.S.
117-119
L.Ed.
684-
[78
685,
330,
90
S.Ct.
A.L.R.
federal
[finding no
constitutional
to
right
575]
be
a jury
at
even absent a
present
waiver].)
view
Defendant also contends
the waiver must be in writing under section
(b).
subdivision
That
section, however,
the defendant’s
it
requires
only when
bears a
presence
reasonably substantial relation to the
of his
fullness
to
opportunity
defend
against
charge.
v.
(People Holloway (1990)
Cal.3d
1116 Medina,
1327];
P.2d
see also
v.
51 Cal.3d
supra,
at
a
pp. 902-903.)
jury
Presence at
view
such a
is not
situation.
v.
(People
Massachusetts,
Lang,
supra,
1025-1026;
at
pp.
Snyder
supra,
Defendant also waived his and attorney’s his presence when court responded jury to and when questions testimony was reread at the jury’s request. Defense counsel kept jury was informed of and requests partici fully in pated how to them. deciding respond Defendant also contends this waiver was have invalid. We repeatedly rejected similar contentions. Medina, 902-903, Cal. 3d at and cases cited pp. therein.) There no was error.
7. Instruction on Lesser Included Offenses Near the end the court said it was guilt phase, considering instruct- ing murder jury second as well as first degree murder. degree When heard, to instructions on objected defense counsel the matter next was murder, He or it is in- nothing.” “It’s first stating, degree degree second that we don’t want a and I both agreed the court that “Mr. Cooper formed “That’s true.” responded, Correct?” Defendant second instruction. degree not they “compromisje],” did want the Defense counsel explained or it is testimony. degree It is first them to on the they go “want degree find second jury might When the court that the nothing.” suggested murder, no evidence to support counsel there was responded defense attorney’s for the district views. a The court and asked finding. agreed, such duty to instruct on both may The that there be sua suggested sponte latter attorney with matter general.” and wanted time to “check degrees, then over. put time, defense counsel for the last When the discussed parties question it,” that the defense clear that we’re against reiterated that “it’s pretty attorney of first The district “guilty guilty degree.” wanted just “Mr: from defendant This followed: colloquy waiver requested personally. but I’ll do it From Mr. We did it all Negus Cooper? counsel]: [defense again. evidence
“Mr. in this case the Court believes there’s Cooper, particular I but that is the finding. disagree, a second degree which will support the instruction. give Court’s—the Court want’s [sic] *50 not I kind of an but I opinion, “The Court: I am sure that that expressed it feel bound to it nevertheless because duty give think that almost—I would to of murder one. always considered be such an integral part is Well, be which would may may justify “Mr. there or not evidence Negus: I there is not. a second murder believe that degree finding, only role that I could see “We have discussed between ourselves that in case to a a give jury verdict this is degree particular a second playing verdict. compromise
“I as far as the for the you eligibility penalty phase also informed that concerned, to the as it is case is law according present this particular courts, that a says least most it the statute by—at interpreted a if second you the same as first find two degree degree verdict of second is In to a encourage into the order not penalty phase. then we’re degrees, verdict, to your only I that it is in best interest give believe compromise Do that? you agree First do degree nothing. two choices: “Mr. Yes. Cooper:
827 “The you join Court: Do waiver?
“Mr. I Negus: certainly do. All I right,
“The Court: it.” accept ultimately The court first jury only instructed on murder and degree murder. attempted trial, defendant’s he
Despite repeated vigorous objections now contends the court erred in prejudicially not on second instructing murder. degree Attorney General there was no error and argues error We was invited. agree any error was invited.
The trial a duty court has sua sponte instruct lesser included offenses when the evidence a raises as to whether question all ele ments of the offense is charged present were and there evidence that would a justify conviction of such a lesser 45 offense. (People Bunyard (1988) 1189, 71, Cal.3d 756 P.2d Second murder Cal.Rptr. 795].) degree [249 ais lesser included offense of first murder. degree (People Wickersham 307, Cal.3d (1982) Therefore, 650 P.2d if 311].) conviction, there was evidence a justifying second murder degree court had duty instruct on that offense.
We
error,
need
decide
this
if
question because even there was
defendant is barred from
it under
asserting
the invited error doctrine.
v. Bunyard,
(People
689 P.2d He 121].) Thus, wanted to guard against verdict. compromise *51 “the record clearly reflects that failure to instruct second degree murder resulted from a deliberate choice defense as counsel well as defendant to utilize an personally tactical all-or-nothing strategy.” (People v. Bunyard, 45 supra, Cal.3d at 1235.) may Defendant not p. now complain that the exactly court did he what insisted upon. (Ibid.)
Defendant contends he was inadequately informed his situation legal to his claim, waiver. prior personal We need not consider the for we have never a required waiver before personal the invited error doctrine. applying For in the discussion example, lengthy of the doctrine in v. Wicker- sham, 330-335, 32 Cal.3d at supra, we pages referred repeatedly to the action “counsel” as critical factor. also (See People Graham (1969) 828 217, 303, that the issue [stating 455 P.2d 153] That error].) constituted invited attorney’s “the conduct”
was whether does of caution waiver out of an abundance defendant’s personal court took any error. counsel’s invitation vitiate mis- attorney his the record demonstrates Defendant also contends that one first correctly degree out that at least the law. He points understood includ- any finding, to circumstance verdict is a prerequisite special murder 190.2, v. Williams Cal.3d (1988) subd. (§ (a); People murder ing multiple attorney P.2d and claims his 395]), 923-924 [245 alone would four murder verdicts degree believed that second wrongly acted He that counsel therefore argues him to the death subject penalty. mistake,” of the invited precluding thus ignorance application “out Wickersham, at 330.) Cal.3d p. error doctrine. (People on two in the record: his factual claim items appellate Defendant bases selection, jury made statements during quoted certain statements To be of defendant’s waiver. taking personal properly above during understood, Al- into context. counsel’s statements must be placed is a first murder conviction a degree prerequisite special though circumstance, murder itself multiple circumstance of special requires of murder in a “of more than one offense only that there be conviction 190.2, v. Bunyard, supra, (§ (a)(3); People first or second subd. degree.” Thus, conviction at fn. one first murder 35.) degree plus Cal.3d p. result in a degree phase. murder conviction of either would penalty selection, the trial court indicated repeatedly During were needed belief that two first murder convictions degree erroneous jury, of the defense Eventually, outside the presence force penalty phase. cites: in the defendant now colloquy counsel corrected the court very I—just pedanti- is not but “Mr. One that Negus: point important, it It least according cism drives me to is not bring required, up. statute, somebody be convict- Attorney General’s interpretation receive the death under penalty special ed of first murder order to degree circumstances. I corrected.
“The Court: stand Attorney “Mr. but the General claims that— That is Negus: disputed *52 to this case. “The Court: Doesn’t apply murders does it. Negus:—two
“Mr. second degree “Mr, Kochis; convicted, Mr. is at least I can the Court that if Cooper tell murder, that our is be going of the two counts of second degree position have a we penalty phase. Oh, I about something.
“The Court: have read reads, I way “Mr. Kochis: That is the the code believe. certainly way
“Mr. is a tad but that’s Negus: ambiguous, code General it. Attorney interprets “Mr. I think is don’t it moment. Negus: great “The It Court: doesn’t to be in this case. appear “Mr. But Negus: pedanticisum [s/c]—
“The I Court: it. Let’s appreciate take recess.” is It not from conclusively proven this record that counsel his based tactical decision second murder mis- oppose degree instructions taken belief that no first murder at all is a degree conviction for required He penalty phase. may instead have he merely legal stated a position disputed. counsel,
In the jury selection out of colloquy, corrected “pedanticism,” the court’s mistaken belief that two first degree verdicts were He required. stated the statute was but “ambiguous,” referred three times to some unspe- cified Attorney General (In that he said was “interpretation” “disputed.” Attorney this appeal, General has first consistently agreed that one a degree verdict is to a circumstance prerequisite special finding.) Although the district attorney stated his belief that two second verdicts alone degree would mandate defense counsel never penalty phase, expressed agree- Instead, ment. he said the It not interpretation is uncom- “disputed.” for mon defense counsel dispute legal This positions prosecution. does counsel colloquy prove misunderstood the law.
The same is true of counsel’s statements when defendant’s obtaining personal waiver. Counsel referred to the statute as “interpreted” by courts. Analytically, counsel was correct that for purposes multiple circumstance, murder special a second murder verdict is the same as degree first degree. some of the Although rather language suggests strongly law, misunderstanding of the the record is not conclusive. We note that trial, defense counsel was in death trials. experienced penalty Prior to he *53 830 in that “The correctly penalty
filed a which he statute quoted demurrer shall death or found in the first be degree for a defendant murder guilty time, 190.2, that . . .” subd. At least as of counsel (§ confinement. (a).) law. understood the apparently
Nevertheless, counsel have misunderstood may the record suggests However, we the invited error doctrine applies the law at trial. as explain, assume, if that this was the case. even arguendo, we show “that counsel affirmatively contends the record must Defendant v. mistake.” (People acted for reasons and not out of or ignorance tactical Wickersham, Avalos, v. 37 330; 32 at see also p. supra, Cal.3d supra, People course, 229, in fn. 6 all of these acts Cal.3d at if counsel had done p. [“Of law, invited here”].) there would not be error ignorance question kind of and what kind of “mistake” preclude becomes what “ignorance” must examine the invited error. To answer this we finding question, for rule. invited error cases determine the reasons Graham, 303, concerning In v. 71 case Cal.2d “seminal supra, People Wickersham, 32 tacti invited v. Cal.3d at no p. 330), error” (People supra, Graham, in the error. with citing cal choice at all was stated for acquiescing v. of invited error in finding People Phillips (1966) approval 225, P.2d to be the court’s 414 stated rule “that 353], only could be in that situation in which responsibility negated special tactics, as a trial ob deliberately defense counsel matter of expressly, 318; at see Wicker jected (71 the rendition of an instruction.” Cal.2d p. sham, at 331.) Cal.3d supra, p. Wickersham, similarly
In 3d record was 32 Cal. supra, People at 322-323.) devoid of tactical choice. We (Id. quoted expressed pp. with from Keelin approval Cal.App.2d if counsel “only P.2d 56 A.L.R.2d that invited error will be found 355], in resisting, acceding a deliberate tactical expresses purpose suggesting, . . . We also to an .” Cal.3d at (Wickersham, p. 332.) instruction supra, err, the “If the trial court to intentionally stated that defense counsel caused on appeal.” (Id. 330.) cannot be heard appellant p. complain did The rule that the must counsel not act out of “ignorance record show error so that an invited finding or mistake” court developed appellate As discussed intentionally. could be confidant that counsel fact acted we Wickersham, 3d “The case reveals graphically 32 Cal. 307: present difficulty an whether counsel’s undertaking [deciding the inherent of such it is mistake or ignorance, action or lack of founded strategy, trust]. interest to Counsel have that it was his client’s may give believed *54 murder, involuntary three choices—first or a not degree manslaughter, Alternatively, may verdict. counsel not have been aware of guilty possi- may ble for a conviction. theory Finally, second murder counsel degree have believed that the trial court and would correct instructions give either failed to notice the or the court’s omission action as accepted decision that instructions degree on second murder were not required court, evidence. From the record is before this it to tell which of impossible (Id. these scenarios is correct.” at 334.) p. contrast,
By the record in this case is to resolve sufficient these questions confidence. We with know counsel believed it inwas his client’s interest not have the second degree murder instructions. We know counsel was aware the court would give instructions if he did not We object. know counsel would, did, was aware his actions and cause the court not to instruc- give tions it otherwise would have given. difficulties in Wickersham (supra, 32 Cal.3d at do p. not exist in this case. “The 334) issue centers on whether counsel deliberately caused the court to fail . .” fully instruct. . (Id. 335.) This record that p. shows counsel did.
We therefore hold the record must only show that counsel conscious, made a deliberate tactical choice between having instruction choice, not If having it. counsel was ignorant mistakenly counsel, believed the court was not it to giving invited error will not be If, however, found. choice, the record shows this conscious it need not additionally show counsel correctly all legal understood implications the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise in must, claim, like competent any such be treated as one ineffective assis tance of counsel. test,
Under this any if, error was invited even arguendo, counsel did mistakenly believe that no first degree murder conviction necessary to have a The record penalty phase. clearly shows counsel made a deliberate an choice for tactical reason express we have as recognized valid. v. Bunyard, above, supra, Cal.3d at As p. 1235.) does suggested this leave defendant a remedy without if counsel acted As in incompetently. any situation, other defendant can always claim he received ineffective assis tance of counsel. claim,
Defendant has made such no but it would necessarily fail. To defendant prevail, would have to that counsel’s prove representa tion fell below an objective standard of reasonableness under prevailing norms, that, professional that there is reasonable but probability for errors, counsel’s unprofessional the result would have been A different. reasonable is a probability probability sufficient undermine confidence in 687-688, 693- U.S. (Strickland Washington (1984)
the outcome. Ledesma, 674, 693, 2052]; People 104 S.Ct. L.Ed.2d 694 could as a factual prove Even if defendant Cal.3d at pp. 216-218.) error, he invited when matter that counsel misunderstood law *55 not prejudice. could show defendant a different tactical decision
We that counsel would have made first doubt counsel, makes clear that he understood the law. The record correctly had situation, it was to seek hopeless to evaluate believed was best able the who reasonable in light This belief was quite second murder verdicts. degree killer, it necessarily was If found that defendant the jury the evidence. the knife, him and he the murder the hatchet with would find took weapons, had to the He an killing. Lease house. This showed planning prior from the away the car—to Ryen get transportation obvious motive both for stealing theft and family—to gain for the facilitate the from the area—and killing murder ver- degree to his have for second argued time To perfect escape. credibility have undercut the the defense—which merely dicts might the had badly simply the had been so botched prosecution investigation the wrong person. addition, children were killed after
In evidence that the two suggests the degree if the could have found second jury Even somehow parents. feared), as that counsel it murder as to the (perhaps compromise parents of the children to have been surely have found murders would Any have defendant the death degree. subjected penalty. first This would only murders (the to convict second asking jury degree tactic offour phase) compar verdict of that could have avoided guilty penalty “pales v. Bun actually (People with the tactic selected defense counsel. ison” yard, 1235.) Cal.3d at p. on of what counsel might
But we need not rest our decision an evaluation Even if counsel would have requested not have done. we assume might instructions, is above it murder for the reasons discussed second degree second mur- any have returned reasonably degree would probable conviction, certainly not four of them. der attempted to instruct on Defendant also contends the court was required the actual verdict form Ryen. murder of Although second Josh degree of attempted of the first “the crime stated the murder was degree, attempted least the time of this crime. degrees,” not in fact divided into at murder is see 100]; v. Macias (1982) Cal.App.3d 548-550 Douglas Cal.App.3d 579] event, In essentially any The issue is thus moot. today].) law [regarding for to second instructions objection degree the tactical reasons defendant’s as murder count as counts. It would apply attempted murder well been murder but not degree have ludicrous to instruct second attempted second murder. degree
8. Instruction on Evidence Suppression of standard instruction objection, regarding Over defense the court gave “If you efforts to evidence: the defendant attempted find that suppress manner, himself in as by destroying evidence such suppress against evidence, by you such be as a circumstance tend- attempts may considered However, to show a is not consciousness such evidence ing guilt. any, sufficient itself to and its if are prove guilt its weight significance, *56 matters for your 2.06.) determination.” CALJIC No. (See that,
The instruction was based on defendant’s admission one evening dark, after he threw his clothes and the issue shoes tennis prison prison overboard from the boat. Handys’ The shoes were especially important evidence because of the at found the murder scene. footprints
Defendant contends the was instruction absent a improper require ment that he aware destroyed was the items he constituted evidence. The instruction, however, clearly such an implied by awareness to referring to attempt as a evidence circumstance to con “suppress” “tending show a sciousness of The guilt.” sufficiently jury’s instruction the guided consider ation this v. evidence. Hannon (People (1977) 19 Cal.3d 597-598 885, 564 P.2d 1203].) Defendant also suggests there was insufficient to evidence the support instruction. On the the contrary, evidence that defendant was issued the tennis shoes in that shoe prison, prints those shoes were at matching found scene, the murder and that defendant of the shoes after dark disposed ocean, which, throwing them into the is “some evidence” in if the record believed by the jury, sufficiently inference of a supported the consciousness guilt of the defendant. part Pensinger 52 Cal. 3d Hannon, 899]; P.2d Cal.3d at The court p. 597.) instruction. properly gave Alleged
9. Jury Misconduct Defendant contends the jury committed misconduct. We prejudicial disagree.
a. The Facts deliberations, During the foreperson jury of the sent the court a note that, before, stating days two Juror had LaPage “inadvertently mentioned in court during was not mentioned Mr. that Cooper something concerning discussion, jurors and reminded the The stopped the trial.” foreperson they were in evidence and that facts received they only should discuss day, re- Later same defendant. the remarks about disregard said comment LaPage’s he all Doxey, jurors; of Juror polled quest However, Doxey Juror was decisionmaking process. not affect their would jury incident.” The did (legal) aspect concerned “with the technical Doxey’s next at Juror day, after events. The day not deliberate the these for instructions. to the court asking sent the note foreperson request, LaPage jury deliberating, questioned instructed the stop court an exhibit that reviewing said jury what had She about happened. by Mr. headaches and hallucinations “which indicated language contained that exhibit. jury could consider Someone whether questioned Cooper.” that there was sup- she “knew personally stated the others that LaPage Doxey ...” said Mr. Cooper. to have been a mental with problem posed such knowledge. not think the should consider personal that she did would not and all the information jury, agreed The foreperson polled their judgment. interfere with *57 of a hearing to the reporter’s transcript
The exhibit referred was LaPage in commit- that resulted his prison from the 1983 of defendant prosecution a this The contained already prosecution. transcript ment. The knew of jury “headaches” and “halluci- that the defendant had of complained statement “just The was ability speaker interfere with his to participate.” nations that ad- “inadvertently” a 1368.” This exhibit was record to making pursuant mitted evidence at the defense’s request. into motion, but for a The court denied the ad-
Defendant moved mistrial. inadver- was “received into evidence jury transcript monished the that mistake,” withdrawn, was jury that it and that the tently through and was individually regarding it. then each juror not to consider It questioned some she remembered about LaPage “vaguely” said possible prejudice. in Pennsylvania. Doxey mental problem something involving hospital and was a “former mental patient,” said she said defendant thought LaPage set such they All the said could jurors used the word possibly “escaped.” aside, solely case on the evidence. matters and decide the for It motion a mistrial. then The court denied defendant’s renewed evidence and “any the stricken jury disregard readmonished entire it,” the evidence re- only and consider pertaining comments made in ceived court.
835
b. Discussion
Defendant first misconduct in read jury contends committed correct, If he such misconduct ing considering transcript. is raises may by of that be rebutted that no presumption prejudice proof prejudice 1108; resulted. v. 50 Cal.3d at v. actually Holloway, p. People 150, 698, Honeycutt 156 (1977) 570 P.2d Cal.Rptr. 1050].) [141 however, was, There no misconduct. The exhibit had been admitted into evidence, albeit thus in inadvertently. jury justified was it. reading Indeed, the was concerned whether be jury it should the state considering state, ments defendant’s mental matter regarding brought to the found, court’s attention. As the trial court jury did nothing improper. Defendant cites cases even innocent consideration suggesting materials the is jury inadvertently given constitutes misconduct rise giving to the This finds presumption prejudice. suggestion its v. genesis People 834, Kitt (1978) 849-850 Cal.App.3d which the Cal.Rptr. 447], [148 jury viewed four not admitted into evidence that were photographs “inad- vertently” court, sent to the jury room. The appellate analysis, without stated that “Even jury’s though the observation of these was photographs intentional, the fact that the were actually observed photographs (Id. jurors falls under the juror category misconduct.” p. 850.) Later cases have cited this to find a language similar presumption prejudice situations. (People Hogan (1982) Cal.3d
647 P.2d tape recording inadmissible containing that had portions [a 93] been deleted accidently to the given jury during deliberations]; Hill Cal.App.3d consid- 272] [the *58 ered an exhibit admitted into evidence but inadvertently which contained inadmissible v. information]; People Boyd 95 (1979) 584 Cal.App.3d Cal. Rptr. jury a inadvertently viewed face police [157 sheet report 293] [the while a reading it was transcript given].)
The cases establishing presumption prejudice involve actual mis- conduct, or, as in v. phrased Boyd, 95 at People supra, Cal.App.3d page “true jury misconduct.” v. (E.g., People Honeycutt, 20 Cal.3d at supra, Pierce, 156-157 and pp. therein; cases cited v. 24 Cal. People supra, 3d at 206-207 pp. [foreperson discussed the case awith police friend].) officer The rationale for the is presumption juror venerable. “A is not allowed to T say: grave misconduct. I acknowledge received evidence without the presence court, but those matters had my no influence mind when upon in casting my law, wisdom, vote the jury-room.’ The in its does not allow a juror to himself in purge way.” that v. Stokes Cal. 196-197 P. in 207], quoted Holloway, v. People supra, Cal.3d at p. 1109.) When violates his oath person juror, as doubt is cast on that Pierce, v. (See supra, People his duties. otherwise ability perform person’s in those is appropriate of prejudice The 207.) presumption 24 Cal.3d at p. situations. inadver- case, evidence it was
When,
considers
innocently
a as in this
is the same as
misconduct. The situation
is no
there
tently given,
fact that the evidence
The
admits evidence.
erroneously
court
which the
not elevate the error
does
and then withdrawn
inadvertently admitted
was
. . . such as
“an error of law
merely
been
There has
one of misconduct.
Pierce,
24 Cal.3d at
supra,
evidentiary ruling.” (People
...
an incorrect
that a result
reasonably
if
only
probable
it is
error is reversible
Such
207.)
p.
in the absence of
been reached
have
to the defendant would
more favorable
Watson,
at
(Id.
p. 836.)
Cal.2d
206-207;
supra,
at
the error.
pp.
Hill,
815;
contrary
Hogan, supra,
language
We disapprove
Kitt,
577; and
937;
Cal.App.3d
Boyd, supra,
110 Cal.App.3d
supra,
834.12
83 Cal.App.3d
that
defendant requested
that since
Attorney
argues
The
General
however,
admitted,
The record suggests,
error was invited.
be
exhibit
items the
as to which
caused
confusion
counsel’s action was
that defense
merits.
consider the
We will therefore
for identification.
clerk had marked
minor—
relatively
admission was
the exhibit’s inadvertent
The result of
of headaches
once complained
that defendant
merely
learning
the jury
hand,
evidence of
guilt
other
On the
said he had hallucinations.
to defend-
evidence pointed
items of circumstantial
extremely
Many
strong.
so. In combina-
others less
alone were quite compelling;
Some
guilt.
ant’s
overwhelmingly.
tion,
defendant’s guilt
the evidence established
out at the house
First,
and hiding
the fact of defendant’s escape
there was
Defendant left the
time of the crime.
nearest the crime scene
precisely
from
could be seen
Ryen
house
of the murders.
very night
house the
jury through no fault of its
influences on the
improper outside
12This case does not involve
situa
prejudice
presumption
there is a
not decide whether
own. We therefore do
654, 656,
450].)
74 S.Ct.
(1954)
In addition to these there was com- strong shoe print evidence, evidence, parison cigarette and tobacco the match comparison between defendant’s blood in of blood house type drop Ryen victim, that was not from a the bloodstained issue on the button prison floor, blood, Lease house the bloodstained defendant’s rope (not consistent used, with a victim’s in found the closet of the blood) bedroom defendant elsewhere, blood the Lease house shower the hair comparisons, and the other evidence summarized earlier in this opinion. utterly coincidence,
It is unreasonable to that by some suppose hypotheti- cal killer real night kill; chose this and this locale to that he entered Lease house just after defendant left to retrieve the murder weapons, leaving the hatchet sheath in the used; bedroom defendant that he returned to the shower; Lease house to that he the Ryen drove station wagon the same direction defendant used his toway Mexico; and that he happened defendant, wear issue tennis shoes like prison those of to have happened defendant’s, defendant’s blood to have hair type, happened like happened roll tobacco, with same cigarettes distinctive prison issue forth. and so evidence, Defendant to discredit sought or minimize each of these items of but sheer volume and consistency of the evidence is overwhelming. Error in admitting the exhibit been would harmless even if had have it been withdrawn.
Defendant that the argues jury deliberated for 27 hours over 7 days, court thus it showing considered the issue of to be close. guilt Attorney The General claims the less, time deliberations was somewhat but does not was deny it We have lengthy. sometimes inferred from unduly lengthy deliberations that the was question guilt close. In re Martin (E.g., P.2d is much 374].) inference weaker, however, in a case of this size and The trial lasted over complexity. testified, three months. Dozens witnesses some about scientific complex Well over 700 testing. exhibits were admitted into evidence. This was a case. It is not capital surprising that the were deliberations Even protracted. estimate, accepting defendant’s time demon- length deliberations strates more than that nothing conscientious its performance *60 of civic high duty.
838 withdrawn, admonished to addition, jury and the was
In the exhibit In v. of it, the danger prejudice. People thus further reducing disregard 1111-1112, a conviction for we reversed 50 Cal.3d at pages Holloway, supra, until was not discovered because the misconduct jury part misconduct had the mis- been different might conclusion have the verdict. “Our after to taken court to have corrective steps revealed in time for the conduct been (Ibid.) or other measures.” by through prophylactic cure it admonition Here, v. (See Harper (1986) measures. also People court did take such 1420, 86 Craig v. 414]; People (1978) 1427 Cal.Rptr. Cal.App.3d [231 no 905, court was satisfied 676].) “The trial Cal.App.3d result, Craig, supra, as well.” v. (People and we are injustice would at p. 919.) Cal.App.3d it as have told the to “accept the court should
Defendant contends .” instability . . has no mental that the defendant being conclusively proved instruction, but it when district give did suggested court either onway evidence before the jury Since there was no attorney objected. condition, statement was dubi- mental the truth the proposed defendant’s circumstances, to find the actual instruction sufficient ous. we Under interests. defendant’s protect to assure itself juror individually each
Finally, questioned the court solely the case could follow the admonition decide that each would and Code this violates Evidence section on the evidence. Defendant contends which, a validity an as to the (a), “Upon inquiry subdivision “statement, conduct, verdict,” to the effect of evidence show prohibits condition, to or either him to assent juror influencing or event upon which it was by or mental concerning processes dissent from verdict only this section By very applies postverdict determined.” its language, juror reaching how or had affected the into error misconduct inquiries 240-241, fn. Haskett (See verdict. does not individual 801 P.2d The section 323].) prohibit harm, be to assure the court there will no jurors questioning future harm, effectiveness of an admonition. such strengthen obviate in her committed misconduct argues LaPage Defendant also mental his condi remark about her personal knowledge regarding supposed inadvertently remark exhibit triggered tion. The was apparently misconduct, Even it to be into evidence. if we consider pre admitted for the reasons was rebutted discussed sumption prejudice thoroughly any juror above. There is substantial likelihood that impermissibly no Marshall, to the defendant’s detriment. influenced court, matter, into the carefully inquired The trial which 952.) Cal.3d at p. for a mistrial. “Whether a denied defendant’s motion particular
839 matter, and is is its nature a incurably by speculative incident prejudicial on mistrial the trial court is vested with considerable discretion ruling 841, 854 motions.” v. Haskett 30 Cal.3d (1982) Cal.Rptr. [180 640 P.2d There no abuse of here. 776].) was discretion
10. Accumulated Error There Defendant that the accumulation of error was argues prejudicial. was, however, merely little error to accumulate. Defendant has shown “ ” his ‘trial not are’ v. 477 (Darden Wainwright, was perfect—few supra, U.S. at 183 and L.Ed.2d at few of the p. p. 158]), especially length [91 individually of this trial. There was no error either or complexity prejudicial collectively.
11. Plea to Guilty Escape trial,
Before defendant to the He now pleaded guilty charge. escape contends he was not advised of his of confrontation adequately right prior to the record must contain its plea. direct evidence that “[T]he face aware, aware, confrontation, accused was or made his to a right trial, self-incrimination, and against as well as the nature of the charge of his re Tahl 132 consequences plea.” (In [81 577, 460 P.2d No original].) formula is specific 449] [italics as required, as the record shows direct long evidence that the accused fully aware of his v. rights. (People Lucky (1988) Cal.3d 1, 753 1052]; P.2d People English (1981) Cal.App.3d 361, 370 Cal.Rptr. 122].) case,
The record of this consti- though reflecting “optimum legalistic tutional terminology” (People English, Cal.App.3d p. 370), was sufficient under the circumstances. As of the part plea proceeding, record, defendant, defense counsel stated on the in front of the that he had discussed with defendant his “confrontation Defendant stated he rights.” understood and waived his We find no error. rights.
E. Circumstance Special Issue
Defendant contends the court erroneously failed to instruct jury it had to find he intended to kill as part multiple-murder special circumstance. The contention fails for reasons. two
First, murder, the jury was instructed that to find first degree it had to willful, find malice and a express deliberate and There premeditated killing. felony-murder were no aiding abetting instructions. Express malice *62 Thus, jury the it had to find court did instruct an intent to kill. the requires kill. an intent to circum
Second, special an element of an intent to kill is no longer killer. v. (People is the actual murder if the defendant stance of multiple 585, 1104, 742 P.2d 43 Cal.3d 1149-1150 Cal.Rptr. Anderson (1987) [240 35 Court (1983) rule of Carlos v. contrary Superior 1306], overruling 37 79, (1984) and v. Turner 131 672 P.2d Cal.3d Cal.Rptr. 862] [197 to this P.2d Anderson 669].) applies Cal.Rptr. Cal.3d [208 306, 326-327 45 Cal.3d Poggi crime. (People pre-Carlos if, jury as the 753 P.2d The record establishes 1082].) found, he the actual killer. defendant is guilty, F. Phase Issues Penalty
1. Criminal Conduct Evidence Nonviolent conduct, defendant burglar that in one course of The prosecution proved assaulted, young girl and Pennsylvania, raped ized a home in kidnapped vehicle, steal to steal one and did the burglary, attempted who interrupted and over defense victim’s vehicle. At the prosecution’s request, rape these on the elements of each of jury the court instructed objection, evidence admitting Defendant contends the court erred crimes. on, of, theft crimes. and vehicle burglary instructing a factor conviction is admissible as felony evidence of Although prior 190.3, of which activity” factor evidence of “criminal (§ (c)), aggravation only if it “involved the defendant was not convicted is admissible previously or threat implied the use or use of force or violence or express attempted 190.3, v. Boyd (1985) force or violence.” factor (§ (b); People to use 1, 700 P.2d This rule 782].) Cal.3d 776-777 are to some weight, “that nonviolent felonies entitled reflects judgment and trouble of if a conviction—otherwise the time only but evidenced value.” (Boyd, supra, the crime will its outweigh probative proving 774.) p. nonviol theft offenses were
Defendant contends the burglary Sec 762. We Boyd, disagree. under supra, ent conduct excluded 190.3, “criminal crimes. The activity,” not specific tion factor refers to (b), committed of events of the series various crimes that defendant were part with the violent crimes commenced with the continued burglary, which and ended with the theft of burglary, the victim who against interrupted course of “criminal activity” the victim’s vehicle. This was a continuous violence, or the “threat” of force or at least clearly involved force which violence. is not activity criminal continuous
Contrary to defendant’s argument, vio involving not themselves those portions into with segmented portions, is proof violence activity involving proven, lence excised. When criminal will entail same course of conduct nonviolent crimes committed during Boyd, little additional “time and trouble.” relatively *63 Indeed, nonviolent crimes from Cal.3d at references to 774.) deleting p. itself entail time of evidence of the violent crimes would presentation a continuous course during trouble. We thus hold that all crimes committed criminal in may violence be considered activity which includes force or isolation, thereof, may if in be nonviolent. even some aggravation portions The all the crimes committed jury during was allowed to consider properly activity.13 this violent of criminal episode instructing
We with defendant that the court erred agree by the elements of the nonviolent crimes. either Upon request party, v. court should instruct on the elements of other crimes alleged 29, 72-73, 41 25 711 Cal.3d fn. P.2d Phillips (1985) but within the 423]), only those that and of themselves involve violence 190.3, was, however, of section factor The error harmless. As meaning (b). noted, the jury activity. heard all the evidence of the other criminal properly little, if any Instruction on the elements of the nonviolent crimes added to the of the evidence and the instructions on the far more thing, impact serious violent crimes.
2. Invalid Stipulation The defense entered into a at the number of stipulations penalty phase, including defendant committed the offenses. As a result Pennsylvania of these evidence that stipulations, agreed not prosecution present defendant had a nearby from mental institution a short time before escaped the crimes. The iden- evidence would otherwise have been relevant to show tity. Before the defense stated on given jury, were to the counsel stipulations the record that he Defendant had discussed the matter with defendant. “satisfactory that it was to enter into these personally agreed stipulations.” insufficient Defendant now contends that his waiver was personal However, because he was advised of his no fully rights. constitutional may waiver of kind is before counsel enter into personal required 13 light holding, burglary inherently In of this we need not consider whether a residential “implied an threat to involves use force or violence.” 842 50 v. Ramirez of fact at the phase. (People
stipulations penalty Lang, P.2d 965]; 1183-1184 People Cal.3d and obtained defendant’s Cal.3d at That the court 1038.) sought supra, p. this out of caution does not change of the personal approval stipulations rule.
3. Notice Statutory Insufficient the defense with advance statutory duty has a prosecution provide of the offense. notice of the evidence it to introduce aggravation proposes Carrera, In with 190.3; Cal.3d at 334.) compliance (§ p. various items of duty, this filed a notice of intent prosecution present evidence, “robbery” defendant’s and “assault with including “rape,” “as described on deadly Pennsylvania pages victim weapon” upon 190.3(b).” as Penal Code Section through discovery permitted *64 this insufficient notice that the prosecu Defendant contends Al and theft offenses. Pennsylvania burglary tion intended to prove offenses, he not defendant later to instruction on these did though objected issue thus not on cognizable to the evidence itself on this basis. The is object Carrera, addition, In there 334.) v. 49 Cal.3d at supra, p. appeal. (People v. section Walker (People was at least “substantial with 190.3. compliance” 605, 863, 47 Cal.3d 765 P.2d The crimes (1988) 70].) Cal.Rptr. [253 all committed as of the same course of conduct. The actual notice were part to the defense. Defendant discovery referred to previously supplied discovery burglary never contended this did not include facts of the theft offenses. any “In the absence of indi
Finally, defendant has not shown prejudice. in the manner in cation that the notice had some fashion affected delay handled the reme appropriate which defense counsel prior proceedings, as needed to dy ordinarily for a violation would be to a continuance grant Carrera, 49 Cal.3d allow defendant to develop response.” (People continuance, other never such a nor did he 334.) Defendant p. requested trial, the nature of At he did not either question wise suggest prejudice. he committed them. Pennsylvania, the crimes committed in or that attorney notice the district Defendant also contends there was insufficient as an rely aggravating intended to on the absence of factors mitigating these lines. Section 190.3 factor. He admits no evidence was presented along in this refers to “evidence.” The section is thus not implicated specifically contentions instructions regarding contention. Defendant’s related be discussed prosecution argument post. will 4. Alleged Argument Misconduct Prosecution
Defendant contends the district attorney committed misconduct in his to the Since defendant did not argument jury. object, contention is v. Bell cognizable appeal. (People (1989) 1, 778 P.2d It also lacks merit. 129].)
First, defendant contends the district attorney utilized” evi- “improperly dence of criminality “to rebut the prior defense of reliance on a strategy doubt of lingering when he that the guilt” argued assault upon Pennsyl- action, vania victim was “the same type same use of available weap- ons that then see later on in we 1983 the commission of Ryen attack.” context, however, In the district attorney merely the facts of the argued circumstances, crimes were aggravating they certainly which were. The argument was proper.
Defendant next claims the district attorney improperly “implied” the absence of factors was an mitigating itself aggravating factor when he argued that defendant was “not a of a bad product but had background,” however, “loving parents.” It is proper, argue that defendant is “less deserving leniency" because of the absence of a factor. mitigating Rodriguez Cal.3d 726 P.2d 113] in original].) The argument [italics of did no more. complained *65 Defendant finally contends the district attorney improperly urged the jury to consider his demeanor at trial as an aggravating factor. We rejected a similar contention in 1170, v. People Jackson Cal. (1989) 49 3d 1205-1206 852, Cal.Rptr. 783 P.2d [264 211].
5. Instructional Issues
a. Deleting Mitigating Factors Inapplicable
Over objection, the court listed the statutory
and miti
aggravating
gating factors for the jury to consider “if
Some of the
applicable.”
factors
were prefaced with the “whether
190.3,
or not”
of section
language
e.g.,
“Whether or not the victim was a
in the
participant
defendant’s homicidal
conduct or consented to the homicidal act.” Defendant contends that inap
plicable
deleted,
mitigating factors should have been
and that use of the
statutory language “Whether or not” was erroneous. We have repeatedly
rejected the contentions.
v.
1,
Malone
47
(1988)
Cal.3d
47 [252
525, 762
Cal.Rptr.
589,
P.2d 1249];
v. Ruiz
44
People
(1988) Cal.3d
619-620
200,
Cal.Rptr.
b.
Impact
Defendant's
that the
an instruction
refused a defense
request
give
The court
of a death
circumstance “The effect
as a mitigating
could consider
jury
We disagree.
Defendant claims error.
family.”
on Mr. Cooper’s
verdict
evidence of
have a constitutional
may
right
present
defendant
Although
him
the court allowed
family,14
present
a death verdict on his
the effect of
did not
The instructions
phase.
all
he wanted at the penalty
the evidence
The court
the evidence it heard.
from
considering
preclude
Easley (1983)
v.
instruction suggested
People
the “catch-all”
gave
309,
858, 878,
and ex
813],
671 P.2d
footnote 10
Cal.3d
[196
mercy
for
consider
“may
sympathy,
instructed that the jury
pity,
pressly
The court did not have to
instructions were sufficient.
the defendant.” These
Daniels,
(See People
instruction.
the additional
give
requested pinpoint
Gordon,
c. aggravating “If conclude that the jury, you court instructed the circumstances, you shall impose outweigh mitigating circumstances However, circum- if that the you mitigating death. determine sentence of circumstances, or if determine you the aggravating stances outweigh outweigh so that neither set of circumstances they evenly are balanced life other, in state for prison a sentence of confinement you shall impose of parole.” without possibility times, v. Brown with many have beginning
We
explained
P.2d
reversed
440],
541-544
Cal.3d
(1985)
U.S. 538
v. Brown
on other
sub nom.
grounds
California
instruction,
use
107 S.Ct.
that this
837],
particularly
L.Ed.2d
*66
evidence,”
any
including
“any
mitigating
relevant
jury
to consider
14The
must be allowed
any
of the offense that
of the circumstances
aspect
character or record and
of defendant’s
v.
(Skipper
South Carolina
a sentence less than death.
proffers
the defendant
as a basis for
1, 7,
1,
1669]; Eddings
(1982) 455 U.S.
v. Oklahoma
(1986)
106 S.Ct.
476 U.S.
4
L.Ed.2d
[90
586,
110,
1, 8, 11,
104,
(1978) 438 U.S.
604
869]; Lockett v. Ohio
114
102 S.Ct.
L.Ed.2d
[71
973, 989-990,
by Burger,
J.);
People
see
v. Whitt
(plur. opn.
C.
98 S.Ct.
L.Ed.2d
2954]
[57
252,
620,
849].)
not now decide
Cal.Rptr.
P.2d
We need
(1990) 647
798
[274
range
family
this “broad”
of
impact
defendant’s
comes within
evidence of the
on the
whether
Whitt,
647;
p.
cf. South
constitutionally
mitigation.
supra,
v.
51 Cal. 3d at
pertinent
Gathers,
v.
882-883]; Enmund
Flori
p.
pp.
810
L.Ed.2d at
supra,
Carolina v.
490 U.S.
[104
1140, 1154,
782,
purposes
impos
of
102 S.Ct.
(1982) 458 U.S.
801
L.Ed.2d
da
3368] [for
[73
personal responsi
be
to his
ing
punishment “must
tailored
penalty,
the death
the defendant’s
Johnson,
added];
supra,
p.
v.
845
“shall,”
First,
the word
is
in
potentially
two
misleading
respects.
jury
infer that
might erroneously
it could
or
perform
balancing
weighing
in a
process
by
mechanical fashion
the number of factors in
comparing
aggravation with those
an
mitigation,
arbitrary
assignment
Second,
to the
weights
factors.
the fail to understand that a
might
juror
is
unless,
required
vote for the death
as a result of the
penalty
weighing
juror
process,
personally determines that death is the appro-
priate penalty under all the circumstances. To determine whether the jury
may have been misled to defendant’s
prejudice
either respect, we examine
the entire
577,
record.
Hayes
v.
52
{People
(1990) Cal. 3d
642
[276
874,
As in Hayes, supra, Cal.3d at page the court here an gave addi- tional instruction that virtually eliminated risk that the jury would be misled as to its discretion or as sentencing to the determi- process penalty instructed, nation. It “These various factors aggravation and mitigation may be assigned Thus, different weights by you. it is not the number of factors, necessarily, but also the you weight to them assign which should instance, control. For you could find that one specific factor on one side so weighs heavily in your consideration that it all of the outweighs deter- mined factors on the other side.”
This instruction significantly reduced the risk of juror misapprehension.
First, it expressly told the jury that
was not to
penalty
be
aby
determined
mechanical
process
but
counting,
rather that
jurors
were to
assign
factor,
weight
each
and that a single factor could
all
outweigh
other
“
Second,
factors.
‘when
are
jurors
informed that
have
they
discretion to
assign whatever value they deem
listed,
to the
appropriate
factors
they
necessarily understand they have discretion to determine the appropriate
”
penalty.’
(People Hayes,
642,
Cal.3d at p.
quoting People
Boyde
(1988) Cal.3d
P.2d
affd. sub
25],
nom. Boyde v.
Nothing
penalty phase arguments of counsel could have misled the
jury to defendant’s
prejudice.
district attorney correctly
explained
the jury that the penalty decision came down to a
“balancing”
“guide-
lines for deciding whether or not a verdict of life or death is appropriate.”
There was no Brown error.15
*67
15Because we find no error under our
analysis,
traditional Brown
we decline
People’s
the
request that we reconsider
light
Brown in
of two recent
Supreme
United States
Court deci
sions, Blystone
Pennsylvania
v.
(1990)
255,
Boyde California, v. supra, 494 U.S. (See 370 People L.Ed.2d v. (1990) Gonzalez [108 51 316]. 1179, 1231, 729, fn. Cal.3d 30 Cal.Rptr. 1159].) 800 P.2d [275 846 Instruction Doubt” “Lingering
d. in decision consider its jury The court the to penalty instructed guilt.” doubt as to Mr. you Cooper’s or not have lingering “Whether “The death penalty instruction: a somewhat different requested Defendant to the suffices if find that evidence you although not be imposed should verdict, to guilt.” all doubt as Mr. Cooper’s the it does not foreclose sustain instruction. give erred in to his refusing contends the court He now lan- is This or not” He first claims that the “Whether phrase improper. above, 190.3, and, its as noted use is appropriate. is found section guage from jury to prohibit also the court was required Defendant contends as all doubt” the death if the evidence does “foreclose penalty imposing however, not, standard to instruct on a higher The court required to is guilt. Lynaugh (Franklin of a trial. at the guilt phase capital of proof penalty 155, 164-167, 2320]; S.Ct. 164, 487 U.S. 172-175 L.Ed.2d (1988) [101 788, 802 P.2d Cal.3d v. Kaurish People (1990) Kaurish, any lingering to jury the court consider permitted As 278].) necessary. further doubt. No instruction as to Penalty Reasonable Doubt
e. instruct that Defendant the court was required contends doubt that beyond had to find reasonable jury return a death verdict the have repeat factors. We outweighed mitigating factors aggravating Gordon, (E.g., the contention. edly rejected 1273-1274.) pp. Phase
f. Guilt Instructions Applicability of all phase relevant jury apply guilt The court instructed It also hereinafter provide[d].” to the as phase “except instructions penalty you “in consider may pity, deciding penalty instructed appropriate court Defendant for the defendant.” contends mercy sympathy, instruc guilt jury phase have informed which specifically should We rejected to the have contention. tions applied penalty phase. 1135].) 758 P.2d
v. Brown Cal.3d 6. to Jury Question Response deliberations, “A question, sent a note jury stating, the court
During nature, to the sentencing proce- has been raised informative pertaining A confer- unanimously verdict.” agree penalty if the cannot dure and both counsel regarding call the court among ence was held telephone
847 the Defense counsel waived defendant’s appropriate response. personal after him. presence it with discussing
The district attorney jury the court to inform the that if it did requested verdict, not reach a the jury. would be retried before another penalty phase The court and defense counsel believed that such an instruction be would Instead, coercive. the court to the I responded jury: “As instruct- previously ed it is duty of each of you to consider the evidence for the purpose arriving you at a verdict if can do so accordance with that evidence and you. instructions given You are not to be concerned with proce- dures.” Defense counsel “preferred]” they court to “tell them that if cannot reach a verdict to inform the Judge, they otherwise are not to be concerned with procedure.”
Defendant now contends the court should have told the jury that they “if were unable to reach unanimous issue agreement penalty would be retried by another but jury, they should not concern them selves with such a and should possibility not allow it to influence their vote.” The first is part precisely what defense successfully counsel objected to at trial. The objection precludes defendant from now contending Medina, instruction should have been given. v. (People Cal.3d at supra, p. 902.) Defendant argues instruction to which he objected did not include the second correct, his current part suggested language. This is but defense counsel did not suggest elaboration he may now He urges. not raise the issue on appeal. (Ibid., and cases cited therein.)
The contention also lacks merit. The court is not required “educate the Bell, on the legal consequences of deadlock.” possible v. (People 552-553, supra, Cal.3d at pp. cases cited therein.) Defendant also contends the court erred in on the holding hearing appropriate response outside his personal The contention lacks presence. merit. Defense counsel waived properly defendant’s after consulta presence Medina, tion with him. 902-903, (People supra, Cal.3d at and cases pp. cited therein.)
7. Accumulated Guilt and Penalty Phase Error Defendant contends the combination of guilt phase error and penalty error phase was, reversal of requires however, the penalty verdict. There little error to record, accumulate. After reviewing we find no reasonable Brown, possibility error affected the verdict. penalty Cal.3d at pp. 448-449.)
8. Automatic Motion to Modify Death Verdict
190.4,
Section
subdivision
for an automatic
(e), provides
motion to modi
motion,
fy a death verdict.
In
on the
“the trial
ruling
func
judge’s
determination,
tion is not to make an
and de novo
but
independent
penalty
rather to independently
the evidence of
reweigh
aggravating
mitigating
whether,
circumstances
then
to determine
in the judge’s independent
judgment,
weight
the evidence
verdict.”
v.
supports
(People
Lang,
He first erroneously contends court considered the absence of factors as an mitigating factor. the absence of a aggravating Although factor, factor is not itself an mitigating the court aggravating may properly consider in aggravation “objective circumstances of the killing.” (People Coleman, context, v. 48 In supra, Cal.3d at we view the p. 159.) statements crime, of as complained comment on the in proper circumstances of the duress, the absence of cluding or other provocation, facts. extenuating 612, v. Karis 46 (People (1988) Cal.3d 758 P.2d 1189].)
Even if the court considered the mere absence of factors to be mitigating the error aggravating, was not The court prejudicial. found the “circum- stances of the crimes alone and the nature of the are wounds so aggravating . . that. the death is mandated.” The penalty record certainly supports finding. court also found that “to do other than anything deny this motion . . . be an arbitrary would and a . . .” act. capricious Reviewing statement, the court’s full we are satisfied that any “had misunderstanding Karis, no on the court’s impact deny decision to the motion.” (People 46 Cal. 3d at p. 652.) Defendant next contends no evidence the court’s state supports silent, cool, ment that he “went about his terrible business in a calculated and deadly manner.” On the evidence contrary, that defendant transported the murder from the Lease weapons house; house to the the state Ryen ments of Josh Ryen, victim; surviving evidence defendant treated himself to a beer after the and the evidence killings; physical amply support the court’s finding.
Defendant next contends the court and be parties erroneously lieved the court should not consider new evidence at the on the hearing modification motion. He the context in which ignores the issue arose. motion the modification in court when Relatives of the victims were present heard, objected, When the defense to the court. and desired to speak on the ruling after its these relatives until to not listen to the court agreed v. Frank The court was correct. modification motion. Jennings, 1215]; P.2d
Cal.3d *70 modify, the court In on the motion ruling 46 Cal.3d at supra, p. 994.) additional evidence pre- evidence to the only jury, considers presented Marshall, 50 3d at 942.) v. Cal. supra, p. sented either party. (People have considered contends the court at least should finally Defendant other, in cir- special evidence whether strike unspecified, deciding in v. Williams (1981) cumstance He relies on our finding. holding People 470, 443, that the court had 1029], Cal.3d 637 P.2d [179 “in authority finding under section to dismiss a circumstance special of modify order to a sentence of life without the possibility imprisonment a We whether a court has the to dismiss parole.” question power special circumstance after the death. jury has returned a verdict of We expressly Williams, reserved the at footnote 11. It is at question supra, page least arguable remedy section 190.4 subdivision the sole (e), provides after a death verdict. however,
We need not resolve for the trial court believed it question, that, had such but It authority, refused to exercise it. is inconceivable verdict, having modify refused to death the court would have turned around and only dismissed the circumstance The special finding altogether. murder, circumstance in this case was special objec- multiple particularly tive matter. No Ryen one ever that there were four bodies in the questioned house. To strike the of murder have been finding would multiple capricious in the extreme. There was no error.
9. Constitutionality
the 1978 Death
Law
Penalty
of
Finally, defendant reiterates various
to the
of
constitutionality
challenges
the 1978 death
We
rejected
law.
have
such
penalty
repeatedly
challenges,
and we continue to do so.
v.
50 Cal. 3d at
(E.g.,
Douglas,
supra,
541;
777-779;
42 Cal.
see also
p.
People Rodriguez,
Boyde
3d
supra,
pp.
v. California,
III. Conclusion judgment entirety. is affirmed its Lucas, J., Panelli, J., Kennard, J., Baxter, J., C. concurred. BROUSSARD, J. dissent. —I respectfully that, in view the fundamental impor under California law
It is settled to a fair right to a criminal defendant’s jury tance of instructions proper to instruct trial, has the trial court a criminal proceeding responsibility case, including law relevant to the on the jury general principles oifenses. Sedeno (See, e.g., People of instructions lesser included giving 913].) 518 P.2d Although Cal.3d 715-716 in this case instruct the on the elements trial court did not murder, conclude that majority lesser included oifense second degree omitted instruction at the of defendant’s trial because the court request counsel, of such an in objecting defendant is barred from the absence doctrine. struction under “invited error” *71 establish, however, that the invited uniformly
Past California decisions the not defense has “invited” error error doctrine does when counsel apply (see, as a his or her or mistaken view of the law e.g., result of ignorance 217, 455 P.2d People (1969) v. Graham in that the record this case demonstrates that and defendant contends 153]), or just his counsel’s actions the such mis- ignorance trial were product that (1) take the contention on the the majority reject grounds of law. on acted under a mistaken record is whether defense counsel ambiguous ante, maj. of law (see pp. 828-830), view of the applicable principles opn., event, that, in record “that counsel made a because the indicates (2) conscious, deliberate tactical choice between the instruction having it,” invited error even if the record unam- the doctrine would having apply that counsel’s tactical was based on his biguously demonstrated decision ante, mistaken the law ignorance (see maj. p. 831). view of opn., I the conclusion is on either majority’s ground. As untenable explain, First, in clearly the record this case demonstrates that defense counsel’s omission of a murder instruc- tactical decision second request degree based, tion at least in on a view of the terms was substantial mistaken part, mind, law; my majority’s contrary of the death penalty applicable Second, beyond record credulity breaking point. strains reading that to be decisions in majority following concluding purport past error doctrine defense counsel acts for tactical applies invited whenever if that tactical decision even the record discloses counsel’s purpose explicitly of law. A on a of a principle based fundamental misunderstanding decisions, however, in that careful review of the establishes reali- governing flies in of the settled ty the conclusion in this the face case regard opinion’s basis from this law. The for con- opinion provides departure no principled trolling precedent.
I Before the majority the two which addressing specific points opinion relies, it be may by reviewing issue helpful place perspective basic rationale that underlies the rule that a criminal case the general trial court has the to instruct on the independent responsibility evidence, general law relevant to the issues raised principles instructions on lesser including included offenses.
In v. St. Martin Cal.3d while, 390], P.2d this court as a explained matter of litigation strategy, both the prosecution and the defense in a might conclude case particular that it is in their interests to respective present jury with the all-or- choice of either nothing defendant convicting greater of a offense or charged him acquitting the state has an altogether, interest in overriding assuring that the end, defendant is convicted of the offense. To appropriate serve that it is essential that the jury be properly only instructed not on the greater offense but also on all lesser included offenses that the evidence could properly support. As the St. Martin court observed: “The state has no interest a defendant an obtaining where he acquittal is innocent of the offense primary but charged of a guilty necessarily included offense. Nor *72 has the state any legitimate interest in a conviction of obtaining the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is to unwilling where it is acquit satisfied that the defendant has been guilty of wrongful conduct a constituting Likewise, necessarily included offense. a defendant has no legitimate interest in compelling jury an all or adopt nothing approach to the issue of Our courts are guilt. not halls gambling but Martin, the discovery 524, 533, truth.” (St. 1 Cal.3d supra, forums for of reason, italics For added.) this it is well established that a trial court’s “obligation to instruct on lesser included offenses exists even as a when matter of trial tactics a defendant not fails only request instruction Sedeno, but expressly objects to its being given.” v. (People 10 Cal.3d supra, 703, 716.)
Although a trial duty court’s to instruct properly jury on lesser included offenses thus continues to of defense operate regardless counsel’s desires or requests, the cases have that in recognized some limited circum- stances, a defendant may be precluded from to an objecting appeal instructional error of the trial court that has been “invited” by defend- Graham, ant’s trial counsel. In v. People 303—which, supra, as the majority opinion has recognizes, generally been viewed as the “seminal case ante, invited concerning error” (see maj. 830 opn., p. [quoting v. People 307, Wickersham 32 (1982) 436, Cal.3d 330 (185 650 P.2d 852 however, invited error doctrine is why court explained,
311)])—our
counsel,
error,
“invited”
defense
by
though
invoked when the
properly
or mistake.”
defense counsel’s “neglect
results from
that,
the trial
has stated
when
“Witkin
As the Graham court observed:
instruct,
necessarily
on the rules of law
sua
duty
sponte,
court has the
by
invited
case,
‘though
are reviewable
instructions
involved
erroneous
forcefully
the court
mistake.’
As
defendant’s own
or
neglect
[Citation.]
520,
56
P.2d
136 Cal.App.2d
v. Keelin (1955)
stated
People
[289
‘Nevertheless,
error and is no less oper-
error is nonetheless
A.L.R.2d 355]:
may
erroneous instruction
because the
jury
ative on deliberations
all,
is
it
counsel for the defense.
have been requested
life
After
trial and
is at hazard in the
in a case such as this that
liberty
defendant
see to it that the
the trial court to
duty
is a
continuing
upon
part
there
to their decision
are
instructed
all matters pertinent
properly
upon
’
to the erroneous
suggests
counsel
or accedes
Accordingly,
cause.
if defense
error’; only
do not
‘invited
because
or mistake we
neglect
instruction
if
find
resisting
in suggesting,
tactical purpose
counsel
deliberate
expresses
obligation
it to
the trial court’s
nullify
to an instruction do we deem
acceding
319, italics added.)
71 Cal.2d at
(Graham,
p.
to instruct in the cause.”
error doc-
confirmed that the invited
uniformly
cases have
Subsequent
an
to bar a defendant from challenging
trine
be invoked
may properly
counsel acted for
only when it is clear “that
instructional error on appeal
or mistake.”
Wicker-
tactical reasons and not out of ignorance
see,
520,
As the majority, rejecting *73 here, on two rely grounds: (1) cannot be invoked error doctrine properly in counsel was on whether defendant’s trial that the record is ambiguous the error in of the law when he invited fact under a mistaken view operating event, that, that de- because the record indicates and (2) question, decision, the instruction was a tactical fense counsel’s decision to forego dem- unambiguously even if the record invited error doctrine would apply ignorance based on his onstrated that tactical decision was counsel’s view, conclusions majority’s of the mistaken of the In neither my view law. can withstand analysis.
II that defense I to the whether the record demonstrates turn first question requesting a mistaken view of law counsel was under operating on second murder. degree court not to instruct the jury trial indicates, As the majority the record discloses that at trial de- opinion fense counsel trial court not instruct the on explicitly requested second murder that there was a tactical degree reason for his explained maintains, however, Defendant that the record also request. shows that based, defense counsel’s tactical was at least substantial request part, counsel’s mistaken understanding terms of the death applicable pen- alty law. As all the now the relevant parties recognize, special-circumstance Code, 190.2, provision—Penal section subdivision a de- (a)(3)—requires murder, fendant to be convicted of at least one count of first as degree well murder, as one or more additional counts of first or second before degree circumstance be found special may true. Defendant contends that the record shows that when his trial counsel the court not to requested give second murder degree instruction defense counsel was under the misimpres- sion that two second murder degree convictions alone would render defend- Indeed, ant for the eligible death penalty. defendant maintains that the counsel, record shows that not only well, defense but the prosecutor as laboring under the same misunderstanding the applicable special-circum- stance provision. view,
In my a fair of the reading record confirms unquestionably defend- ant’s As the position. majority opinion recognizes, of the question prop- er of the interpretation pertinent special-circumstance first came provision at trial in up a discussion between the court and counsel that took place during jury discussion, voir dire. court, Prior to that the trial in remarks to a number of potential jurors, had indicated in that at passing least twofirst degree murders had to be found in order for the case to to a go penalty Thereafter, phase. outside the of the presence jurors, potential defense coun- sel undertook to correct the with judge to the respect application special circumstance provision. The following ensued: colloquy One point very is not
“[Defense but important, I—just counsel]: pedanticism drives me to it It bring is not up. required, least according to statute, the Attorney General’s interpretation that somebody be convict- ed degree murder in order to receive the death penalty under special of first circumstances. I stand corrected.
“[The Court]: *74 That is disputed but the General Attorney “[Defense claims counsel]: that— Doesn’t to this apply case.
“[The Court]: degree second murders does it. “[Defense counsel]:—two convicted, is at least I court that Mr. Cooper can tell the “[Prosecutor]: if murder, is that we to be degree going two counts second our position the a phase. have penalty Oh, I read something. have about Court]:
“[The reads, I code believe. way That is the the “[Prosecutor]: certainly but The code is a tad that’s ambiguous, “[Defense counsel]: Attorney General it. way interprets I think moment. great don’t it is of counsel]:
“[Defense in this case. It doesn’t to be appear Court]: “[The But pedanticisum [s/c]— “[Defense counsel]: added.) it. the recess.” (Italics I Let’s take appreciate Court]: “[The clear, of the unquestionably As this makes passage prosecutor subject murder alone view that two second convictions would degree counsel, that suggesting to the and defense while penalty phase, defendant matter, that that was some over the indicated he understood there dispute was the General’s of the Attorney applicable provision. this interpretation any The trial court with that disagreement interpretation.1 did express court, came a between the counsel The issue discussion again during up court not defendant with counsel’s that the request and defense regard had After trial court instruct on second murder. degree prosecutor’s defense Although explicitly source of the and record does not reveal the likely solely the terms of misunderstanding, appears it both counsel focused counsel’s circumstance, 190.2, (a)(3), special that: provides, Code section as Penal subdivision which “(3) proceeding more than offense of murder The defendant in this been convicted of one has degree.” in the first or second apparently portion counsel that the earlier of Penal Code section Both overlooked fact 190.2, guilty (a) “(a) specifically provides: penalty subdivision The for defendant found degree prison or in state a term of life with- murder in the shall be death confinement for first following circum- possibility parole special case in one or more of the out which 190.4, charged (3) specially been found to be true: stances has and under section [[[]... []J] murder in proceeding has in been of more than one offense of The defendant this convicted degree.” the first second entirety, special provided by Code sec- Read in its clear that the circumstance Penal it is 190.2, only (1) guilty has of at (a)(3), applies subdivision to a defendant who been found tion proceeding of first convicted of more degree least one count murder “has this been majority degree.” acknowledge that this than one offense of in the first or second murder intepretation suggest any ambiguity in provision correct do not that there is is the statutory language. *75 the second duty that it “would feel bound to expressed opinion give [a always because considered be such an murder it is to degree instruction] had a of murder and the integral requested personal one” part prosecutor the if the trial was not to the give waiver from defendant court going instruction, the as de- following record reflects that the occurred colloquy fense counsel elicited from defendant: requested the waiver the only We have discussed between ourselves that
“[Defense counsel]: role I could in case is that see a second verdict this degree particular playing as to a a verdict. I as the give jury fl|] you also that compromise informed far concerned, eligibility this case is penalty according phase particular for courts, to law as it is least most it present interpreted by—at says of in the statute that a verdict second the same as a degree degree is first if you two second then we’re order degrees, penalty into the In not phase. find verdict, to I encourage believe that it is in interest compromise your best only give jury two choices: First you agree Do degree nothing. do that? Yes.
“[Defendant]: Do you join waiver?
“[The Court]: certainly I do.
“[Defense counsel]: All I right, it.” accept (Italics added.) “[The Court]: The majority asserts that opinion while these two suggest passages defense counsel may have been under laboring misunderstanding law, “the ante, record is not conclusive.” In (See maj. opn., 829.) my p. view, record, whole, viewed as a is neither ambiguous nor inconclusive. An objective and commonsense reading defense counsel’s remarks sum- the advice marizing he had given defendant the second regarding degree murder instruction indicates clearly that defense counsel’s tactical decision to forego a second degree murder instruction was based on his mistaken view that under the verdict applicable special-circumstance provision “a second is the degree same as first that if degree,” and two jury “find[s] second then we’re into the degrees, penalty majority phase.” Although opinion the fact that points defense was very counsel experienced trials, death penalty was prosecutor experienced yet also the collo- voir quy dire makes it during absolutely clear that the prosecutor under the same operating relevant misunderstanding circum- special stated, stance as defense Plainly counsel. on this record it simply blinks reality majority for the to maintain that the record does clearly establish that defense counsel misunderstood the applicable legal principles. *76 balance, find the in it is to distressing when a life Particularly hangs such a of the record. reading strained majority opinion adopting
Ill coun- record is inconclusive on whether defense After that the suggesting on a murder instruction rested sel’s tactical decision to second forego degree law, resolu- to conclude that the majority a misunderstanding go event, is, error invited tion of that in not determinative question conscious, issue, counsel a because so as the record shows “that made long it” having choice between the instruction and not having deliberate tactical here, ante, as the invited error doctrine maj. 831), counsel did (see opn., p. based even if shows tactical choice was the record also that counsel’s applies conclusion, the mistake of In this ignorance reaching on counsel’s or law. be this invited faithfully court’s majority opinion applying past purports view, In of the decisions refutes the my opinion’s error review precedents. claim. Graham, above, in 303—the
As discussed Cal.2d People summarized in invited its seminal error decision—the court conclusion if accedes to the terms: defense counsel or following “Accordingly, suggests do find ‘invited neglect erroneous instruction because of or mistake we not if in error’; only counsel a deliberate tactical expresses purpose suggesting, trial or an do deem it resisting nullify instruction we acceding in at 319.) court’s to instruct the cause.” As this obligation (Id. p. passage reveals, decision, that the error doctrine Graham invited indicating when a deliberate defense counsel tactical applies “expresses purpose instruction,” to an or contrasted suggesting, resisting acceding explicitly invites “tactical scenario to one counsel the instructional purpose” which . . . .” decision Although error “because of or mistake Graham neglect stated, from the court’s may not have so it is clear Graham explicitly that in which acts when the court referred to a situation counsel reasoning that, it in mind a tactical decision for “deliberate tactical had purpose,” law, face, accurate, least on its an informed understanding rests on reveals on a and not a tactical decision that the record is founded explicitly mistaken view of the law. Under the Graham court’s when reasoning, action, clearly record before trial court that counsel’s demonstrates tactical, law, mistake has the error ignorance rests on counsel’s or though consti been invited “because of mistake” and would neglect properly tute invited error. may only
While this of the Graham decision have been understanding itself, in the decisions of our court subsequent Graham implicit opinion In have made the Avalos point quite explicit.
228-229 121], 689 P.2d for after example, finding the invited error doctrine in that case because defense coun- applicable *77 instruction, sel had a deliberate tactical for to a purpose agreeing particular course, we went on to state that counsel had done all these acts in “[o]/" if law, there ignorance would not be invited error here.” Cal.3d at (37 229, Thus, fn. italics Avalos indicates the p. added.) clearly court’s under- deliberate, that a standing tactical decision the record which reveals was based on defense counsel’s or mistake of ignorance law would bring invited error doctrine into play.
Our decision in v. Bunyard, 45 Cal. 3d reiterates this supra, defendant, In understanding. Bunyard, who had been convicted of the fetus, first degree murder of a woman and her contended on pregnant that the trial appeal court had erred in to a second failing give degree with, murder instruction to the regard of the fetus. In killing response Attorney General’s assertion that the claim was barred the invited error doctrine, defendant that the argued record did not disclose whether his trial counsel’s “was request tactically based an on accurate understanding of law, applicable or on the ignorant or mistaken that no impression instruction on second murder an degree theory as to the implied-malice fetus was appropriate under the 1234-1235, facts adduced at trial.” at (Id. italics pp. added.) Defendant that it argued was reasonable to conclude that “the defense’s request not be instructed on second murder degree with respect the fetus was considerations, based not on tactical informed but on ignorance and the mistaken view that no theory second degree murder fetus,” was factually to the applicable death of the and contended that under such circumstances the invited error doctrine should not be applied. (Id. italics p. added.)
Although Bunyard court rejected the defendant’s our argument, deci in Bunyard sion did not suggest that a defense counsel’s tactical decision to an forego instruction would constitute invited error even if the record clear ly revealed that the decision was based on counsel’s ignorance or mistaken Instead, view of the that, law. we concluded contrary the defendant’s assertion, factual the trial record in that case actually reflected a “well- reasoned, deliberate and tactical selected strategy by defense counsel” informed (B 1189, 1235, unyard, and, Cal.3d italics added) for that reason, the invited error doctrine did In on the apply. relying fact that the “well-reasoned, record revealed a . . . informed tactical strategy,” Bun- Avalos, yard, like confirms the heretofore settled that the understanding invited error doctrine does not if the record apply establishes that an counsel’s of defense mistake or has invited because
instructional error been neglect.2 in holding on all of these precedents turns its back majority opinion conscious, deliberate made a only must show that counsel
“that the record (see maj. it” the instruction and not having having tactical choice between “conscious, ante, if the reveals that the even record also p. 831), opn., misunderstanding choice” was based on counsel’s deliberate tactical law. *78 decisis,
Furthermore, the in the face of stare opinion addition flying it the that should suggests no for distinction principled explanation provides or the of defense counsel’s ignorance be between different effects drawn that counsel was of The reaffirms the principle mistake law. opinion “[i]f or having it], the instruction and not having of the choice ignorant [between him, error will not believed the court was not it invited mistakenly giving ante, error be but holds that invited will (see maj. 831), be opn., p. found” or tactical deci- or mistake affects his her found when counsel’s ignorance teaches, decision the on behalf of the defendant. As the Graham sions has been to situations that the invited error doctrine not applied reason of mistake is because of defense counsel has acted out ignorance which a fair and because the instructions to trial crucial of importance properjury “ all, than of the defendant defense liberty it is the life [rather ‘[a]fter Graham, at . . . is hazard.’” that counsel] when, here, is as great The effect on the defendant as 319.) detrimental p. of counsel’s of ignorance the is a instruction because jury proper deprived decision, as the leads him or her to make a misinformed tactical when law the of counsel’s of the ignorance is denied instruction because jury case, as a of of the instruction. In either result coun- availability potential is the defendant misunderstanding legal principles, sel’s of applicable trial aby jury. denied a instructed properly seen, of importance having jury have of the overriding
As we because law, California law controlling instructed on the correctly principles on the trial court instruct the jury an places responsibility independent by instruction defense even in the absence of a for correctly request proper an instruction the prosecu- counsel or to an incorrect objection proposed affirmatively that has a tactical deci If the record does not disclose defense counsel made law, misunderstanding applicable properly trial court could sion the basis of a of the on legal made the tac principles counsel aware the relevant had assume that defense only law. ex understanding tical basis of of the It is when record decision a correct misunderstanding on a plicitly counsel’s tactical decision rested demonstrates defense bring pertinent legal properly play decision cannot into the invit principles that a tactical ed error doctrine. tion or the court. In other areas of trial example, failure to practice—for object to inadmissible evidence—when a trial court sees that defense coun- sel has made a tactical decision based on an incorrect of the understanding law, the law does not the court to intervene to correct counsel’s require different; mistake. But the jury instructions is when defense giving counsel’s comments on the record demonstrate that the tactical decision to object to a instruction is based on counsel’s of the proper misunderstanding law, in, the law the trial court to is requires so that step incorrectly instructed on the fundamental in the of law principles applicable case because of defense counsel’s mistake of law. invited error existing doctrine recognizes importance court’s intervention in such a I and see no setting, justification for this well-established rule. repudiating I Accordingly, dissent from the majority invocation of the opinion’s invited error doctrine.
IV *79 There is one other aspect majority that opinion is sufficiently to be troubling worthy of In my mention. view the is in opinion error in decisions, a line disapproving of California with v. Kitt beginning 848-850 Cal.App.3d 447], which holds that the traditional of “presumption prejudice” analysis to cases in applies which is jury inadvertently or unintentionally to material that exposed has not been evidence, introduced into as well as to cases in which a juror intention- ally in engages ante, misconduct. (See maj. opn., The pp. 835-836.) majority that the suggest “presumption prejudice” analysis may properly be applied only to cases “true involving jury misconduct” and not to cases in which a jury has been inadvertently to such exposed material without any misconduct on a juror’s part.
I find the majority’s discussion of this point troubling for a number of with, reasons. To begin there is no reason for the to majority reach out and Kitt, “take on” case, line Cal.App.3d of decisions in this for here there clearly was “true jury misconduct” as the majority opinion uses that term. As majority’s own discussion of the relevant facts dem- ante, onstrates (see maj. opn., pp. 833-834), key fact that triggered incident in question this case was the statement during jury deliberations by one of the jurors—Juror LaPage—that she “knew that personally there was to supposed have been a mental problem with Mr. Cooper” (italics added), and not the rather innocuous reference in an exhibit indicating that defendant may have suffered “headaches and hallucinations” sometime in Indeed, the past. conduct, with to regard LaPage’s one of the other jurors indicated, in to response the judge’s questioning, that she thought LaPage may mental that she patient” a “former
had said that defendant was statements Juror by It was these “escaped.” have used word possibly knowledge had allegedly personal facts of which she LaPage—introducing the jury’s been into evidence—that precipitated but that had not admitted threat of significant potential the most to the and that inquiry judge posed to defendant. prejudice Juror by statements
The that the recognize themselves majority appear the record of which deliberations about facts outside LaPage jury during misconduct” juror constituted “true assertedly she had personal knowledge stan- under the prejudice” which must be properly judged “presumption ante, on to that the find (See maj. 838.) majority go dard. opn., p. case, brought rebutted since the matter was clearly this presumption carefully the court attention the deliberations and during court’s had been admitted only admonished the to consider evidence that court.
I that the majority’s conclusion agree presumption prejudice with conclusion, however, be In that there was rebutted here. light appears and much more exten majority no reason for the to undertake separate, sive, inadvertantly analysis with to the consideration of regard jury’s hallu a brief reference to “headaches and admitted exhibit which contained If the defendant some earlier. trial court’s years cinations” experienced any were to eliminate potential preju comments and admonitions sufficient statements, from those comments and admonitions dice Juror LaPage’s also to eliminate clearly potential problem were sufficient *80 admitted have Under these circum inadvertantly might posed. exhibit stances, there no reason the to reach out to majority disap is for simply Kitt deci the line of Court decisions from the emanating of prove Appeal sion, 834. 83 supra, Cal.App.3d merits,
Furthermore, in on the I believe the are error in majority suggest- cases only that the of standard to ing prejudice” applies “presumption there be no miscon- jury may “juror “true misconduct.” involving Although case, 834, when, inad- juror in the 83 a is duct” as Kitt Cal.App.3d into vertently to material that has not been admitted evidence exposed trial, numerous cases have the traditional “presumption nonetheless applied be in a that a defendant can analysis of such prejudice” setting, recognizing by a such material as by juror’s as unintentional to prejudiced exposure As the States by juror. intentional out of such material a United seeking 227, in v. United U.S. (1954) Court Remmer States 347 Supreme explained 654, 656, 74 S.Ct. a case in which the had 450], juror 229 L.Ed.2d [98 immediately had a made committed no misconduct but contact reported case, contact, communication, “In a or any a third criminal person: private directly indirectly, juror or with a a trial about the during tampering, reasons, is, matter before the for obvious deemed presumptive- pending conclusive, but burden ly is not rests prejudicial.... presumption . that such the Government to establish . . contact with the heavily upon Miller, & was harmless to the defendant.” juror (See Wright generally 554, 248-264 cases Federal Practice and Procedure (1982) pp. cited.) § Indeed, rule, the reject majority in this proposing well-established of very inconsistent with two recent decisions this opinion appears 1098, Holloway (1990) Cal.3d 1109-1110 court—People 530, 1327], P.2d Marshall Cal.3d 950-951 269, 790 P.2d we which explicitly adopted 676]—in of in prejudice” standard set forth the American Bar Associ- “presumption ation for Standards Criminal Justice. 8-3.7 of Standard those standards defendant, “On a explicitly provides: motion verdict of guilty whenever, criminal case shall be set aside and new trial granted evidence, basis of court competent finds a substantial likelihood that the vote of one more jurors was influenced by exposure to matter prejudicial relating to the or to the case not the trial part defendant itself (2 record on which the case was submitted to ABA Standards for jury.” Justice, 8.57, Criminal std. 8-3.7 ed. 1980) italics (2d p. added.) Nothing the standard suggests only that it applies juror when has intentionally and improperly access gained material; to such recognizes standard that a defendant bemay equally prejudiced by “unintentional” to such exposure materials.
Although the majority do discuss specifically the numerous cases which have applied “presumption standard to prejudice” situations misconduct,” which no has juror been guilty “true majority appear that a suggest distinction should be drawn between “outside influences on the jury through ante, no fault its own” maj. fn. (see opn., p. majority’s italics) and influences from sources improper that are “internal” judicial But the process. distinction appropriate is not between the “influence,” “outside” or rather, “internal” source of the but as standard *81 8-3.7 of the American Bar Association Standards for Criminal Justice indi- cates, the whether matter to which the has been jury has been exposed has not been admitted into evidence at the trial. the Although majority assert . . . that a jury innocently considers evidence was inadver- it “[w]hen tently . . . given situation is the any same as in the which court [t]he ante, erroneously admits evidence” (see maj. that is opn., p. 836), simply not so with to material has regard that not been admitted into evidence at the trial. trial, When evidence is admitted at the opposing and party counsel will be aware that may the jury consider the evidence and will have the opportunity to out point any deficiencies in the evidence or to introduce other to evidence; evidence rebut the admitted even if an court appellate
862 evidence, the in the admitting trial court erred later determines the the the to to rebut attempt at least have had opportunity will opposing party Kitt, 834, When, however, and in 83 supra, Cal.App.3d as evidence trial. v. (see, Hogan Kitt e.g., People of cases have followed most the which 815, 817, 93]; Boyd 647 P.2d Cal.Rptr. (1982) [183 577, is inad- 293]), jury 584-586 (1979) Cal.App.3d evidence, all been into of that has not admitted vertently material given context, is In that it of trial are absent. checks process procedural even though of standard to the “presumption prejudice” appropriate apply Thus, I think the no have been of “true misconduct.” may guilty juror all its the Kitt decision and of broadly is in error majority disapproving progeny. an reason
Finally, why majority’s disapproval there is additional Kitt, is line of cases gratuitous the entire Cal.App.3d Kitt, Kitt and most of the cases which have followed Unlike inappropriate. the reference to defendant’s case the exhibit containing the present evidence at had in fact been admitted into “headaches and hallucinations” trial, decision one Court inadvertently. Although prior Appeal albeit Hill analysis (see People has extended Kitf s such situation I con- majority’s with 272]), agree Cal.App.3d that, should not in such a setting, presumption prejudice clusion so, however, juror has no “true mis- This is because there been apply. conduct,” admitted at but because inasmuch as the evidence was simply trial, least defendant and his counsel at had inadvertently, oppor- albeit to the evidence. tunity respond sum, it is that the trial court’s admonition timely
In since clear incident, it is difficult to from the entire obviated possible prejudice way out its to disapprove understand has chosen to why majority go line of cases. well-established
Mosk, J., concurred. J., Mosk, June for a was denied 1991. rehearing
Appellant’s petition Broussard, J., granted. should be petition were of the that the opinion